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On June 28, Malawi’s Constitutional Court dismissed a challenge to the Penal Code that criminalized same-sex conduct. The ruling violated fundamental rights protected under international human rights law, including the rights of lesbian, gay, bisexual and transgender (LGBT) people to equality and non-discrimination.
Three judicial panel members rejected Jane Willen AxterDutch citizens, and sleepA transgender woman and sex worker questioned criminal law Articles 153, 154 and 156. These articles criminalize anyone who has “sexual intercourse against the order of nature” with another person, attempts to commit an “unnatural crime” or performs an “indecent act.” These provisions are vague and overbroad, promote discrimination against LGBT people and carry a maximum sentence of 14 years in prison.
Both applicants faced criminal prosecution in lower courts: Akster was charged with child abuse and Gonanyi was charged with “false pretense” for impersonating a woman. Gonanyi was sentenced to eight years in a men’s prison in December 2021, while the case against Akster continues. They appealed to the High Court in 2022 and 2023, respectively, challenging the constitutionality of the ban on same-sex sexual conduct, and the Chief Justice consolidated the cases into one.
Many religious groups have filed legal briefs and organized demonstrations against LGBT rights During the hearingThe case also sparked a nationwide debate over same-sex marriage. Leading protests They believe the court action is aimed at legalizing same-sex marriage in Malawi.
The court rejected all arguments raised, insisting that it was the responsibility of Parliament to review and amend the law.
“This is a dark day for the entire community. We are more afraid than ever,” an LGBT rights activist told Human Rights Watch.
The court’s ruling intensified Risk of arbitrary arrest and prosecutionHuman Rights Watch has documented violence, physical violence, and discrimination against LGBT people in Malawi. In addition, LGBT people may be excluded from health care, justice, and security.
With the case dismissed, the power to protect LGBT rights now rests with Parliament, which should uphold Malawi’s international human rights obligations and urgently review and amend the Criminal Code to end anti-LGBT discrimination and protect everyone’s rights to safety, privacy, and dignity.
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