INTRODUCTION
“Kali kokha nkanyama, tili awiri ntiwanthu.”
This phrase, in Malawi's native language, Chichewa, translates as: “[w]hen you are on your own you are as good as an animal of the wild; when there are two of you, you form a community.”Footnote 1 In December 2009, two people attempted to form a community by holding an engagement ceremony [chinkhoswe] in Blantyre, Malawi.Footnote 2 However, this union was not seen by Malawians as the forming of a community. Instead, the union divided the Malawian community, stirring wild reactions.
The two people were Steven Monjeza Soko, a man, and Tiwonge Chimbalanga Kachepa, a transgender woman. In December 2009, the couple shocked members of their community in Blantyre when they held a chinkhoswe at a small local lodge. During the ceremony, a journalist from a major national newspaper received word about what was transpiring and attended the event. The next morning, the newspaper published a salacious story of the two “gay lovebirds” on its front page and pointed out that homosexuality was a crime in Malawi.Footnote 3 The story led the Malawi police to investigate the matter. The next day, police charged Mr Soko and Mx KachepaFootnote 4 with “buggery or having carnal knowledge of another” and an alternative charge of indecent practices, contrary to sections 153 and 156 of the Malawi Penal Code (the Penal Code). In the months that followed their arrests, Soko and Kachepa stood trial in the Chief Resident Magistrate's Court, where Chief Resident Magistrate Usiwa-Usiwa (the Chief Magistrate) found them guilty and expressly made an example of them by imposing the maximum penalty of 14 years' imprisonment with hard labour.Footnote 5 Within a few days of the sentencing, however, President Bingu wa Mutharika pardoned the two men and granted their unconditional release.Footnote 6
Almost from the time of the arrests of the two defendants, the case became an international cause célèbre, as it shone a light on the division over sexuality between the West, where the lesbian, gay, bisexual and transgender (LGBT) movement has gained traction in recent decades, and Malawi, a nation where homosexuality is outlawed and considered by many Malawians to be morally reprehensible and “un-African”.Footnote 7 This article explores the LGBT rights movement in Malawi through the case of R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa (Soko and Kachepa).Footnote 8 It discusses the case's impact on the LGBT movement, and the efficacy of international and domestic efforts to advocate for LGBT rights in Malawi. First, it considers the societal context that gave rise to the controversial trial and shaped events as they unfolded. Next it discusses how, in many ways, the case amounted to a setback for Malawi's fledgling LGBT movement. In particular, it looks at how the Malawi government used the case as a vehicle to advance its fervent anti-homosexuality agenda. The article then examines subsequent international and domestic advocacy efforts to decriminalize homosexuality and obtain constitutional protection for Malawi's LGBT community. It uses Professor Thomas Stoddard's “rule-shifting, culture-shifting” paradigm to consider the efficacy of these efforts.Footnote 9 The conclusion is that, despite the negative impact that the case had on the LGBT movement and the questionable utility of the international pressure that followed, domestic advocacy shows promise as a vehicle for changing the legal framework and public attitudes toward homosexuality in Malawi. The article posits that one promising advocacy strategy is to adopt a long-term multi-dimensional approach that integrates more productive forms of international support. With this approach, it is possible to realize better protection for members of Malawi's LGBT community.
HOMOSEXUALITY IN MALAWI, BEFORE SOKO and KACHEPA
The case of Soko and Kachepa suggests that the Penal Code provisions outlawing sodomy are in step with prevailing social attitudes for the majority of the Malawian population. In the circumstances, it is informative to examine the societal context which led to the decision. In particular, tracing the historical development of the Malawian attitude towards homosexuality will, perhaps, better illuminate a decision which resulted in the harshest possible sentence being handed down to the defendants. This section of the article aims to provide the reader with background knowledge about Malawians' attitudes to homosexuality, which will then inform an analysis of the setbacks caused by the case.
Malawi's attitude to anti-homosexuality is deeply embedded in its society, and is attributable to the nation's culture, religion and colonial history under British rule. Although Britain repealed its homosexuality laws in 1967,Footnote 10 Malawi's sodomy laws remained in force under its Penal Code,Footnote 11 despite being dormant in the decades that followed independence in 1964.
Following Malawi's independence from Britain, Dr Hastings Kamuzu Banda led Malawi under a brutal one party dictatorship, guided by his ruthlessness and puritanical beliefs as “life president”.Footnote 12 Under Life President Banda's leadership, between 1964 and 1994, Malawi remained a highly conservative and oppressed society. Throughout this period, Life President Banda ruled through discipline and violence, stifling all perceived dissent.Footnote 13 Banda sustained the moral guide entrenched during colonial rule and made open discussion about certain matters, including sexuality, impossible.Footnote 14
Since Life President Banda relinquished power, many advances in human rights have been achieved in Malawi. Malawi's Constitution of 1994 (the Constitution) enshrined a number of individual rights and protections.Footnote 15 However, communitarian values, a traditional conception of the family unit and conservative religious views, have continued to shape an environment conducive to thwarting the establishment of rights and protection for sexual minorities.
With respect to religion, Malawi is considered by many to be a “God-fearing nation”.Footnote 16 The pervasive presence of the dominant religion of Christianity and, to a lesser extent, the Islamic faith has also contributed to anti-homosexuality in Malawi. Using sources such as the Old Testament, many church leaders teach their congregations that same sex activity is a sin and even satanic. Evangelical churches also promote a family model based on monogamy, marital fidelity, and respect for women and the nuclear family.Footnote 17
It is evident that religious views inform the political discourse and various government initiatives in Malawi.Footnote 18 Religious organizations make up a powerful lobby group on matters of sexuality and morality, and exert considerable influence in the shaping of policy and legislation. Despite Malawi's conservative past, in the mid-2000s, there began to be some signs of receptiveness to the idea that the LGBT community needed to be accepted and integrated in a more comprehensive strategy to combat the HIV/AIDS crisis. In 2006, three years before Soko and Kachepa, Dr Mary Shawa, principal secretary for HIV/AIDS in the Cabinet Office, stated on record that accepting the LGBT community was a vital step in the HIV/AIDS campaign.Footnote 19 These positive signs towards change and recognition of LGBT rights in Malawi came to a grinding halt with the advent of Soko and Kachepa in 2010, undoing the minor advances that had been made in the years preceding the case.
As in most of Africa, there is a widely held view in Malawi that homosexuality is alien to its culture, traditions and religious values.Footnote 20 In light of the myriad historical and social factors militating against acceptance of LGBT rights in Malawi, many Malawians have adopted the view that homosexuality is a western concept fostered by the decadence of the western secular state.Footnote 21 The “unAfricaness” of homosexuality is used to portray such practices as being a product of western influences that constitutes a “neo-colonial menace”.Footnote 22 This oft cited argument has been used to rationalize opposition to homosexuality across the continent.Footnote 23 There is some evidence that the embedded homogeneity of the anti-homosexuality culture is strongest in Malawi's rural areas.Footnote 24 As Leckford Thoto, minister of information and civic affairs, said, “[t]hese immoral acts are not in our culture; they are coming from outside … Otherwise, why is there all this interest from around the world? Why is money being sent?”Footnote 25
SOKO AND KACHEPA: THE CASE AND ITS SETBACKS
In 2010, the minor advances in Malawi's LGBT cause came to a halt, after the court delivered the decision in Soko and Kachepa. From the outset, the case produced a number of setbacks for the LGBT movement in Malawi. Not only was the case manipulated by the Malawi government, in particular the president, to reiterate the “unAfricaness” of homosexuality (which in itself created setbacks to the LGBT movement), the case also proved destructive to the general and constitutional rights of the defendants, then members of the LGBT community, as well as future members.
The defendants' liberties and rights were quelled throughout the trial process, including by the treatment they received during the investigation and a number of pre-trial applications. Upon their arrest on 28 December 2009, Soko and Kachepa were denied their liberty as they were remanded in custody. When the defendants appeared in court on 30 December 2009, Soko pleaded not guilty to the offences of buggery or carnal knowledge under section 153(a) of the Penal Code, whilst Kachepa pleaded not guilty to similar charges under section 153(c). The indictment also charged both in the alternative of having committed indecent practices under section 156. Both applied for bail. The Chief Magistrate denied the application, reasoning that the defendants should be remanded in the interests of their own security, since the case had attracted public interest locally and internationally.Footnote 26 The defendants subsequently made a second application for bail. That, too, was denied. As such, they remained in custody for the five month period leading up to and throughout the trial. The defendants also made an application to the High Court to challenge the constitutionality of the charges. However, the chief justice of the High Court rejected efforts to have the matter certified as constitutional on the basis that the charges were criminal in nature and did not relate to constitutional matters.Footnote 27 By rejecting the defendants' applications, the judiciary arguably set a precedent that the Constitution does not and will not afford protection to sexual minorities charged with same sex related offences. Such was the case, despite the fact that section 20 of the Constitution prohibits discrimination against any persons on the basis of their “status or condition”.Footnote 28 The denial of these pre-trial applications demonstrated the Malawian justice system's disregard for the rights and liberties of Soko and Kachepa, persons belonging to a minority group. Moreover, it is arguable that the treatment of Soko and Kachepa was a setback to the general LGBT movement, as it created an unwelcome precedent for how members of the community were likely to be treated by the justice system, if arrested for homosexual sodomy offences.
During the trial, evidence also emerged of how the defendants were treated during the investigation of the case. Several female witnesses, including Kachepa's boss at the lodge, testified that they had attended the chinkhoswe. However, at the time, they were under the impression that Kachepa was a woman. A day after the event, upon hearing that Kachepa was male, they went to her home to confront her. Several of the witnesses testified to being present when Kachepa voluntarily removed her clothes, at which time they observed her to have male genitalia. Dr Bonus Makanani, an obstetrician and gynaecologist, testified that he conducted a gender examination of Kachepa, at the request of police, and concluded that the patient presented as male. On the second issue, he stated that he could not make a finding on whether Kachepa had engaged in anal sex, as it was not within his area of expertise.Footnote 29
Based on the evidence, the Chief Magistrate found both Soko and Kachepa guilty of “buggery or having carnal knowledge” and indecent practices.Footnote 30 The prosecutor sought a heavy sentence, as the gay defendants “had left a ‘scar on morality’ in the country and seemed to be proud of being gay”.Footnote 31 In imposing the maximum sentence of 14 years of hard labour on the two defendants, the Chief Magistrate stated: “I shall pass a scaring sentence, so that the public [is] protected from others who may be tempted to emulate this horrendous example”.Footnote 32 The Chief Magistrate added, “Malawi is not ready to see its sons getting married to other sons”.Footnote 33
It is thus apparent that the court treated the defendants in a manner that suggested sexual minorities do not enjoy the same basic rights and protections afforded to persons who come into conflict with the criminal law. The court denied the defendants' application to be released on bail, despite the fact that no-one claimed to be a victim and there was no evidence that the defendants presented a safety concern if released into the community. During the trial, the court paid no regard to the defendants' right to silence, as the Chief Magistrate admitted and weighed conscripted evidence as part of the prosecution's case. For example, the court heard evidence about Kachepa being forced to undergo a gender examination and assessment on whether she had engaged in anal sex. This type of evidence undermined the defendants' constitutional right to personal privacy,Footnote 34 the non-derogation with regard to the prohibition of torture and cruel, inhuman or degrading treatment or punishment,Footnote 35 the right to equality and recognition before the law,Footnote 36 and the right to freedom of conscience, belief, thought and religion.Footnote 37
During sentencing, the court also paid no heed to the defendants' constitutional right to be imprisoned only “as a last resort and for the shortest period of time consistent with justice and the protection of the public”.Footnote 38 Instead, the Chief Magistrate imposed the maximum sentence that would normally be reserved for a repeat offender whose recidivist tendencies have not been deterred by previous sentences. Given that the two defendants apparently had no prior related criminal records, it is difficult to discern how the Chief Magistrate arrived at such a result. The multitude of intrusions into the personal liberties of the defendants formed a sound warning of how the Malawian justice system was likely to treat members of the LGBT community. Indeed, that view was confirmed in the Chief Magistrate's sentencing remarks.Footnote 39
Many foreign governments and human rights organizations quickly condemned the convictions and harsh sentences and urged the Malawi government to release Soko and Kachepa. In addition, UN Secretary General Ban Ki-Moon paid an unexpected visit to Malawi, where he addressed Parliament and also met President Mutharika.Footnote 40 On 30 May 2010, President Mutharika held a press conference in which he declared that he had pardoned the defendants. The president indicated that his decision was based on humanitarian grounds. Though the secretary general flanked him during the press conference, the president did not temper his words, as he stated that the “two gay boys” had injured the traditional values of Malawian culture and what they did was a crime. “These boys committed a crime against our culture, our religion and our laws”, said the president.Footnote 41
While many international and local LGBT rights organizations hailed the presidential pardon as a victory for LGBT rights, the case itself also constituted a substantial setback for the wider LGBT movement in Malawi for a number of reasons. First, the case caused the police to transform the sodomy provisions of the Penal Code into “potent instruments”.Footnote 42 Though the sodomy provisions had not been repealed in the 45 years since Malawi had gained its independence, they had hitherto rarely if ever been used and amounted to little more than relics of colonialism.Footnote 43 In this vein, the decision to prosecute the two defendants for engaging in sodomy was significant. Since the case commenced, police have charged other individuals with sodomy, as well as for posting LGBT related propaganda.Footnote 44
Perhaps more significantly, however, the case gave the Malawian government a platform to promote a zero tolerance policy on homosexuality buoyed by a culture of homophobia. The president and other members of the government used the case to denounce homosexuality. President Mutharika called homosexuality “evil and bad before the eyes of God” and an act “we Malawians just do not do”.Footnote 45 He even went so far as to call the defendants lower than dogs and characterize them as insane.Footnote 46 The president also used the case to promote fears of poverty among women, as he asked who will marry them, if the men are marrying the men.Footnote 47 Indeed, as one commentator notes, “[a]lthough African homophobia is not a new discourse in south-central Africa, it did not meaningfully cohere in the Malawian cultural imagination until the 2009 gay engagement ceremony”.Footnote 48
The case caused a major shift in the landscape, as any receptiveness to the LGBT movement that the government might have contemplated had completely vanished and been replaced by a hard-line position. Dr Shawa, who had previously been a voice in favour of the need to make the LGBT community part of Malawi's HIV/AIDS initiative, reversed her position, indicating that the number of Malawians in the LGBT community is too small to require prioritization of the movement.Footnote 49
It is reasonable to surmise that the potent combination of the government's fervent anti-homosexuality message, the deprivation of rights at the pre-trial and investigative stages of the case and the public sentiment toward the case, had a chilling effect on the LGBT movement. Anyone considering engaging in such activity, let alone identifying as LGBT, would be dissuaded by the sanction of sentences on a par with or worse than many convictions for sexual assault and robbery.Footnote 50 In addition, the stigma that the government cultivated through its homophobic rhetoric and conceptualization of LGBT persons as outlaws, created a fertile climate for violence and vigilante justice toward anyone perceived as being a member of the LGBT community.
The government also exploited the facts of the case to obfuscate the LGBT movement's less ambitious goal of decriminalization with the more controversial issue of gay marriage. The president and other anti-homosexuality proponents, such as the Malawi Council of Churches, played on this angle and the threat of gay marriage to traditional Malawian culture and family values. For the LGBT movement in Malawi, gay marriage had never been what the movement was about, as it sought incremental changes in the law to enable minority rights and protections for the LGBT community and to gain inclusion in the HIV / AIDS initiative.
By the end of 2010, the LGBT movement in Malawi was crying out for a form or forms of advocacy to repair the damage that Soko and Kachepa had seemingly caused. For many, the case's influence on the LGBT movement was a negative one and it is difficult to see what, if any, positives can be drawn from the case. This article will now deal with these issues.
ASSESSING THE CASE'S INFLUENCE ON THE LGBT MOVEMENT
International pressure and aid conditionality
One form of advocacy, which emerged from the outset of the case, was pressure from the international community and the use of aid conditionality. The pressure that the international community placed on the Malawian government did very little to advance the LGBT movement and, in some ways, caused setbacks. As previously noted, the case garnered unprecedented international attention, in the form of condemnation and appeals for the unconditional release of the defendants. Almost from the time the police arrested and took the two defendants into custody, media reports spread across the globe. International LGBT and human rights organizations, civilians and celebrities all spoke out and urged or demanded that Malawian officials release the two defendants unconditionally.Footnote 51 These groups also pressured their own governments to act. Western governments, in turn, resorted to aid conditionality as a tactical mechanism to force the Malawian government to free the defendants and decriminalize homosexuality. The governments of the United Kingdom, the United States, Norway and Germany, as well as organizations such as the International Monetary Fund, the World Bank, Amnesty International and Human Rights Watch expressed their condemnation of the prosecution and threatened to cut off aid in the face of these human rights abuses.Footnote 52
As the case progressed through Malawi's criminal justice system, western pressure persisted. Following sentencing, the United Kingdom proceeded to cut $30 million in donor aid.Footnote 53 The United States reacted negatively and expressed the view that the criminalization of sexual orientation and gender identity amounted to a “step backward in the protection of human rights in Malawi”.Footnote 54 The United Nations also spoke out against the situation in Malawi, stating that the law dated back to the colonial era and demanded that the government repeal it, as well as the convictions.Footnote 55 International pressure culminated in the president announcing on 29 May 2010 that he was pardoning the defendants and directing that they be released forthwith.Footnote 56
The threats and actions by western governments to withhold aid appear to have had mixed results. On the one hand the pressure provided a quick fix, as it appeared to play a key role in the presidential pardon and release of Soko and Kachepa. Many believe the president succumbed to the pressure because of Malawi's heavy reliance on international aid.Footnote 57 Nevertheless, the president's decision to grant clemency was hailed as a victory for LGBT rights in the “warm heart” of conservative Africa.Footnote 58 Indeed, it is difficult to deny the significance of the defendants' unconditional release shortly after receiving such harsh sentences.
On a macro level, however, one can make the case that aid conditionality has failed to have any sustainable impact on the advancement of LGBT rights in Malawi and has been counter productive to some extent. Western pressure led to a perception that, for many Malawians, pitted Malawi against the developed world. In this vein, it became about the West imposing its views on Malawi and perhaps even being the underlying influence that led to the defendants becoming publicly engaged in the first place. How else, Malawians asked, could “gayism” have crept into a place where it never before existed?Footnote 59 Thus, western pressure that Malawi accept its views on homosexuality seemed to dovetail with and reinforce the notion that homosexuality was a western practice and foreign to Malawi culture.Footnote 60
The futility of international pressure and aid conditionality as a form of advocacy for advancing the LGBT movement in Malawi could also be seen during the president's announcement that he was pardoning the two “gay boys”.Footnote 61 It was clear that international pressure had in no way shifted the president's position on homosexuality and he seemed to be issuing the pardons for economic reasons. While the president claimed that his decision was based on humanitarian grounds, he blamed the two gays for causing “a great deal of stress” to the Malawi people and to the Malawi government and for “creating a situation in [the] country, which is unheard of”.Footnote 62 He cited three areas of concern, that the gays: violated and injured Malawi traditions and culture; challenged and caused stress to Malawi religious institutions; and violated the country's laws.Footnote 63 Based on the president's message, it appeared that international pressure had in no way impacted the Malawi government's staunch opposition to LGBT rights and that he was making the concession in the interest of Malawi's economic well-being.
Within months of the decision to pardon the couple, the ineffectiveness of western aid conditionality on the Malawi government became further apparent with Malawi's decision to enact new anti-gay legislation.Footnote 64 In December 2010, the Malawi Parliament passed a bill to criminalize female same sex sexual acts, to which President Mutharika assented in January 2011.Footnote 65 As a result, under the new section 137(a) of the Penal Code, females are prohibited from engaging in same sex sexual activity and face a penalty of up to five years' imprisonment for contravention.Footnote 66 Thus, the Malawi government created a further obstacle to the LGBT movement by enacting a new prohibition affecting female sexual minorities.
Perhaps the most glaring example of the ineffectiveness of aid conditionality can be seen in President Joyce Banda's efforts to accommodate western donor nations, following President Mutharika's unexpected death in 2012. President Banda inherited the leadership in the wake of President Mutharika's second term, during which the Malawi economy had fallen into serious decline. Upon assuming power, President Banda announced in her state of the nation address her intent that Parliament repeal anti-homosexuality laws “as a matter of urgency”.Footnote 67 Arguably, President Banda took the step as part of a larger effort to stabilize the economy by appeasing donor nations and negotiating the return of aid that had been discontinued under President Mutharika's leadership.Footnote 68 President Banda was applauded by international organizations for her courage.Footnote 69 However, President Banda's declaration led to formidable domestic protest from religious and civil society organizations.Footnote 70 The pressure mounted quickly and, within just a few days, led her to reverse her position.Footnote 71 In doing so, President Banda explained that “Malawians are not ready” to live in a society where homosexuality is decriminalized. President Banda appealed to the international community to “allow each country to have that debate freely, without being pushed”.Footnote 72
In hindsight, Soko and Kachepa arguably demonstrates the limitations and perils of western aid conditionality on efforts to advance the LGBT movement in Malawi. The method seems to be a blunt instrument that does little to change embedded views and may even have led to resentment as a result of the neo-colonial undercurrents that resonated with the Malawian government and people. Indeed, the dangers associated with forcing change through aid conditionality are considerable. Such change is ostensibly alienating, lacking in legitimacy and hypocritical, to the extent that western democracies attempt to impose their own views and take the decision out of Malawians' hands. Aid conditionality also seems to have the greatest deleterious effect on those who need aid the most. The United Kingdom's decision to cut some of its aid, for example, left some 849 individuals accused of murder in Malawi without funding to have their trials.Footnote 73 As a result, they remained in custody with no trial dates scheduled for the foreseeable future.
Aid conditionality also did not stop Malawian authorities from prosecuting similar offences, as others have subsequently been arrested, charged and convicted since the defendants' release.Footnote 74 One individual was even arrested and charged for posting pro-LGBT information.Footnote 75 In short, international pressure and threats of aid conditionality, while ostensibly leading to the important step of obtaining the defendants' pardon and release, did little to change and possibly contributed to worsening the prevailing attitude relating to sexual minorities in Malawi. Moreover, international pressure presented a virtually untenable approach to the recognition of LGBT rights, as it effectively required Malawi to employ undemocratic measures to fulfil western demands.
Rule-shifting
Under Professor Thomas Stoddard's “rule-shifting, culture-shifting” paradigm, lawyers and activists can use the law to change the rules that govern society (rule-shifting) or, in some cases, use the law to change prevailing social attitudes on a given issue (culture-shifting). According to Professor Stoddard, the more traditional goals of lawmaking that can be achieved by rule-shifting include the creation of new rights and remedies for victims, as well as altering the conduct of government, citizens and private entities.Footnote 76
A primary benefit of rule-shifting, in comparison to change prompted by aid conditionality, is that the change has greater perceived legitimacy because of the channels used to effect the change. Specifically, accomplishing change through judicial rulings or in the legislature is more likely to be accepted and adhered to by Malawians. It follows that rule-shifting is also positive in that any changes that are accomplished are more sustainable. That said, rule-shifting as a mechanism for change inherently suffers from its own set of limitations. As noted by Professor Stoddard, the type of changes achieved through rule-shifting may have a limited reach.Footnote 77 In a place like Malawi, where the population is largely rural based, such change can have even less impact. Moreover, the possibility of rule-shifting through the legislature seems remote at present, given the current homophobic climate in Malawi. Nevertheless, the decriminalization of homosexuality in Malawi through the judicial system would represent a pivotal gain for the LGBT movement, a gain that may eventually pave the way for further rule-shifting in the legislature.
While the LGBT movement failed to achieve any sustainable gains in Soko and Kachepa, the quest for rule-shifting continually appears to motivate domestic advocacy groups to pursue change by arguing the unconstitutionality of the sodomy laws. Of note, the Centre for Development of People (CEDEP), a small human rights advocacy organization born out of the need to fill major gaps in HIV service delivery, has been engaging in efforts to effect a rule-shift to advance LGBT rights.Footnote 78 In particular, CEDEP has led a sustained effort over the past few years for the Constitution to recognise the rights of sexual minorities.Footnote 79 At the risk of oversimplification, the argument appears to be that the Constitution provides a broad scope of protection against various forms of discrimination and implicitly includes the category of sexual minorities. Under the heading “equality”, section 20 of the Constitution provides: “[d]iscrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition.”Footnote 80
As a matter of logic, the case for constitutional recognition and the concurrent invalidation of sodomy laws in the Penal Code is sound, as the open-ended text of section 20 provides the necessary semantics to enable a more expansive, but rational interpretation of the meaning of discrimination. Accordingly, if CEDEP and other like groups persist in their push to effect rule change by litigating the constitutionality of the sodomy laws, then there is a reasonable prospect for such change. A receptive judiciary may interpret the words “or other status or condition” to include protecting individuals from discrimination based on sexual orientation.
In the context of the situation in Malawi, domestic advocacy focusing on rule-shifting brings a number of advantages in comparison to international pressure and aid conditionality. A domestic advocacy organization such as CEDEP has particular advantages as the source of rule-shifting efforts because it is a local organization that is aware of the political and social nuances in respect of the LGBT movement in Malawi. Armed with “insider information”, an organization like CEDEP is well positioned to push for change because it is familiar with past and present litigation on the topic in Malawi and can make informed determinations about the suitability of a matter for impact litigation. As a local organization, headed by Malawians, it is also likely to carry far greater legitimacy in the eyes of Malawians than an international organization acting on its own or through foreign state intervention. Nevertheless, domestic rule-shifting efforts can be bolstered by support from the international community, which would foster a multi-layered advocacy approach.
The goal of rule-shifting to obtain constitutional protection for sexual minorities in Malawi presents a formidable challenge. In light of the conservative views and prevailing attitudes, it may take many years before a rule-shift can be achieved.Footnote 81 Moreover, the reality is that rule-shifting can work to the detriment of the LGBT movement. As a case in point, the Malawi government, under President Mutharika, used rule-shifting to pass section 137(a) of the Penal Code, thereby outlawing further forms of same sex sexual activities in Malawi.Footnote 82
Another challenge faced by the LGBT movement was the precedent set by the decision of the chief justice of the High Court to deny hearing Soko and Kachepa's application challenging the constitutionality of the sodomy laws. However, as Associate Professor Nan Hunter (as she then was) notes in her response to Professor Stoddard's article, strategically targeted, repeated efforts can lead to successful outcomes.Footnote 83 Thus, a multi-faceted, strategic and targeted advocacy movement, led by domestic advocacy groups, is central to a positive rule-shift to strike down the sodomy laws. The process would provide members of the LGBT community with relief from the threat of criminal prosecutions and the concomitant stigma relating to same sex sexual activity.
In recent years, the domestic advocacy movement in Malawi has engaged in a number of positive initiatives in an effort to produce a rule-shift to secure LGBT rights and protection. Domestic advocacy groups have pursued targeted, repeated efforts to secure basic rights for the Malawian LGBT community, such as providing litigation support to individuals facing criminal charges for consensual same sex activity, as well as holding preparatory workshops on how to use the courts to promote LGBT rights in Malawi.Footnote 84 During one such workshop, lawyers discussed the importance of using a constitutional lens to review laws and policies.Footnote 85 Through such efforts, advocacy groups are asserting a basis for including the LGBT community within Malawi's constitutional framework and placing the constitutionality of sodomy laws before the courts, where rule-shifting can be achieved.
In September 2013, the High Court conveyed to the nation for the first time that it was willing to consider the validity of arguments regarding the constitutionality of the sodomy provisions. The High Court took the unprecedented step of initiating proceedings to review the constitutionality of section 153(a) of the Penal Code, following the convictions of four Malawian males in the magistrate's court.Footnote 86 In giving notice in a national newspaper, the High Court invited all interested parties, including the Malawi Law Society, civil rights organizations (local and international) and religious groupings, to apply to join the matter as amici curiae [friends of the court].Footnote 87 In response to the notice, a number of human rights organizations took the opportunity to file submissions.
Though the matter showed rule-shifting potential, the case stalled in the Malawi Supreme Court of Appeal (the Supreme Court). The attorney general initially objected in the High Court on the basis that the chief justice had not certified the proceedings as a constitutional matter, pursuant to section 9 of the Courts Act.Footnote 88 The High Court dismissed the objection and the attorney general appealed to the Supreme Court. It is understood that the Supreme Court had indicated that it was not in a position to examine the appeal in the absence of written reasons from the High Court.Footnote 89 After a lengthy delay and numerous requests by advocacy groups for the High Court to provide a record, Justice Mwaungulu provided a written ruling earlier this year in which he dismissed the attorney general's assertion that the chief justice needed to certify the proceedings before the High Court could have jurisdiction to deal with the constitutional question.Footnote 90 In addition to rejecting this argument, Mwaungulu J framed the substantive issue to be considered by the High Court succinctly, stating: “[in] the context of this matter, prohibiting or criminalizing the conduct in s. 153 of the Penal Code, even though deemed criminal, could be discriminatory based on sexual orientation or an invasion of the right to privacy. Setting down the case for review would enable justification of these penal provisions or their being declared unconstitutional.”Footnote 91
It is arguable that the High Court's decision to initiate a constitutional review and Mwaungulu J's recent reasons on certification represent progressive steps in the pursuit of a rule-shift concerning LGBT rights and protection. The High Court demonstrated, for the first time, a readiness to examine the constitutionality of the sodomy laws. With the issue of certification addressed and the matter remitted back to the High Court, the High Court is now in a position to deal with the constitutionality of section 153 of the Penal Code head on and will probably do so in the coming months when the matter is set down to be heard. In the meantime, the fates of the convicted individuals continue to hang in the balance.
The High Court's decision to launch the proceedings suggests that targeted, repeated advocacy efforts by various domestic organizations have, to some degree, had an impact that has not previously occurred within Malawi's justice system. As such, access to a rule-shifting platform, necessary for various advocacy organizations to present their arguments,Footnote 92 appears to be more proximate today than appeared to be the case in the aftermath of Soko and Kachepa, just a few years ago. Moreover, the manner in which the High Court chose to initiate the proceedings, by giving notice in a national newspaper, suggests that the awareness of any eventual rule-shift could have a wider reaching and more immediate impact, even in Malawi's many rural areas.
Despite targeted, repeated advocacy efforts and signs of potential progress, other factors also impinge on the ability to achieve rule-shifting. Malawi's current economic woes, for example, have provided difficult terrain for effective rule-shifting and contributed to substantial human rights violations. In 2014, empty government coffers resulted in Malawi court staff going on strike.Footnote 93 This caused the judicial system to grind to a halt, generating a huge backlog of cases and individuals awaiting their court proceedings.
In addition, deeply engrained religious and cultural attitudes among many Malawians continue to sustain an unfavourable environment for the pursuit of LGBT rights and protections. In the past year, such views have once again manifested themselves in the form of efforts towards negative rule-shifting. In February 2015, Malawi's president signed into law the Marriage Divorce and Family Relations Act, which limits marriage in Malawi to “persons of the opposite sex”.Footnote 94 Moreover, the new law stipulates that a person's sex is determined at birth. Consequently, this law expressly serves to exclude members of Malawi's LGBT community from the institution of marriage. This negative rule-shift crystallizes into law the views of the many Malawians who opposed the attempt by Soko and Kachepa to enter into a union at their chinkhoswe in late 2009.
Culture-shifting
Whilst rule-shifting is key to achieving crucial rights and protection for sexual minorities, changing the law will not guarantee any change in attitude among the Malawian people. Professor Stoddard asserts that law making also has the capacity for culture-shifting and, if done successfully, the law can be used to impart a new moral idea or standard and even lead to a change in cultural attitudes.Footnote 95 It is rare for lawmaking to lead to social change and it often only takes place at a “glacial pace”,Footnote 96 but change can be achieved under certain conditions.Footnote 97 Professor Stoddard asserts that lawmaking can transcend its traditional role of rule-shifting and take on a culture-shifting capacity when the change in question is profound, the public is aware of the change, the change is perceived as legitimate and there is continuous enforcement of the change.Footnote 98 Professor Hunter asserts that a fifth condition must also be present to achieve culture-shifting. She claims that there must also be “public engagement” in relation to the issue at hand.Footnote 99 As she states, “[b]y engagement I mean more than consciousness and more than passive support, even legitimacy. Unless there is significant public engagement in some form, beyond a small cadre of litigators or lobbyists, in the effort to change the law, there is no basis for culture-shifting”.Footnote 100
Given the religious and cultural backdrop and related prevailing attitude in Malawi, the pursuit of culture-shifting presents a particularly ambitious and time consuming approach to change. Nevertheless, if true equality for sexual minorities is the end goal, it is a worthwhile pursuit. While Professor Stoddard is of the view that legal change through legislative action (as opposed to courtroom litigation) is more apt to achieve culture-shifting, Professor Hunter argues that both arenas reward repeat players.Footnote 101 This is potentially significant, as the current climate in the Malawi Parliament does not appear conducive to legislative change, even in a rule-shifting capacity.
While culture-shifting is the long term aim, there are a number of smaller gains that need to be made before lawmaking on such a profound scale can take place. Perhaps one of the most important steps is for the supporters of the LGBT movement to develop a more harmonious relationship with other human rights and civil society organizations that do not currently perceive LGBT rights as human rights and even see the quest for such rights as selfish.Footnote 102 One of the more dramatic displays of the gulf between the LGBT movement and other human rights organizations took place during a press conference in mid-May 2011.Footnote 103 Vince Mhone, the director of the Council of Non Governmental Organizations, took express steps to distance his umbrella group from CEDEP's efforts to advocate for LGBT rights.Footnote 104 Mhone called LGBT rights a “distraction from the many issues affecting the vast majority of Malawians”.Footnote 105 CEDEP, however, has worked to build a coalition with other “like-minded actors”.Footnote 106 By working towards a more collaborative relationship, it is conceivable that human rights advocates will accept the LGBT movement as being part of the human rights movement. Advocates will then be able to work collaboratively to achieve rights that will benefit all of the movement's members.Footnote 107
In addition to collaborating with external organizations, CEDEP has developed a three year multi-layered strategy that contains a number of culture-shifting advocacy tools.Footnote 108 One area that stands out is CEDEP's efforts to sensitize the media to LGBT issues, including television and radio outlets.Footnote 109 To this end, CEDEP has held a conference on the LGBT movement and provided education to the media about LGBT rights and the reasons for supporting their establishment in law. This seems to have led to more balanced reporting about LGBT related issues, as news articles now carry opposition views on a more consistent basis.Footnote 110
CEDEP's director, Gift Trapance, has also written a series of newspaper articles about Malawians who are members of the LGBT community. In these articles, Trapance cultivates the humanity of the individuals he writes about and the reality that these people are more like others in the community than they are unalike.Footnote 111
In addition to these initiatives, CEDEP and other LGBT supporters have continued to lobby the government for change and generate ongoing debate. Unfortunately, many politicians, including the current president, have taken the position that a referendum is the democratic way to resolve the issue.Footnote 112 This appears to be a political manoeuvre that avoids taking a hard-line position prone to damaging relationships with donor aid countries, while not offending various church organizations and their many constituents who oppose homosexuality. However, while a referendum provides a rule-shifting mechanism, it is likely to be an ineffective one, as it permits the majority's discriminatory views to act as a barrier to change. Accordingly, a referendum does not seem to be a viable option for positive rule-shifting, especially in the current climate, as it is highly unlikely that a majority of Malawians will vote to protect the rights of the “un-African”, even “satanic” minority. In the circumstances, such a vote may undermine rule-shifting and culture-shifting advocacy efforts.
This analysis demonstrates that, despite many obstacles, domestic advocacy in the LGBT movement is promising, with CEDEP adopting a multi-layered advocacy approach in an effort to shift Malawian laws to benefit sexual minorities. With persistence, these efforts will ideally lead to a change in the cultural mindset of Malawians. Importantly, with CEDEP taking the lead, the push to shift laws and culture will carry greater legitimacy and ensure greater receptiveness.
CONCLUSION
The case of Soko and Kachepa brought the rights of the LGBT minority out of the shadows and into the nation's conscience. The facts and timing of the case, however, made it an unsuccessful episode for LGBT rights in Malawi. The case led to a number of setbacks, not least of which was the government's use of the case to send a strong message to the community that portrayed homosexuality as evil, threatening traditional Malawian values and not to be tolerated. The government even engaged in undesirable rule-shifting, as it passed a law prohibiting same sex relations between women. In 2015, the government went even further, as it passed legislation that limits marriage to persons of the opposite sex and defines sex as that assigned at birth.
Although the case dealt a number of blows to the LGBT movement, it has also given rise to a number of positive steps in advocacy for the rights of sexual minorities in Malawi. While international pressure and aid conditionality did not appear to contribute to any sustained progress in relation to the LGBT movement, support from other nations can nonetheless provide invaluable assistance to a multi-layered domestic advocacy strategy. Viewed through this lens, Soko and Kachepa was not all about setbacks. Rather, with every “loss” in litigation, a “win” can be manufactured.Footnote 113 In this case, the “win” for the LGBT movement was raising the public awareness of the issue and allowing those involved in the movement to gather support and strive for change. As has been noted, since Soko and Kachepa a number of organizations have engaged in targeted, repeated efforts to achieve a rule-shift and better protection for Malawi's LGBT community, leading also to publication of a notice in a national newspaper which called for submissions on the constitutionality of Malawi's sodomy laws. Poised to deal squarely with the issue, the High Court provides a forum that will underpin any positive rule-shift with much needed legitimacy.
As discussed in this article, there are myriad reasons for the prevailing attitudes of anti-homosexuality in Malawi. In this type of environment, similar to that of many western states only one or two decades ago, the pursuit of culture-shifting activities and the achievement of an attitude of acceptance presents as a difficult task. Nevertheless, with time, energy and an effective multi-layered strategy, it is reasonable to posit that many of the desired rights, protection and even equality can be attained for sexual minorities in Malawi.
