Already panting under public spending criticism from donors, the Peter Mutharika administration has again pricked its benefactors’ backsides: sliding on human rights by arresting two alleged homosexuals soon after freezing such actions.
The arrest by police at Kanengo in Lilongwe last week of 19-year-old Cuthbert Kulemela and Kelvin Gonani, 39, on allegations that they engaged in homosexuality acts at the home of one of the suspects, has prompted the United States of America (USA) and Human Rights Watch (HRW) to ask Malawi to drop charges of sodomy levelled against two men.
The US and HRW have said the duo’s arrest goes against human rights commitments Malawi pledged to adhere to.
The arrest came at a time government has told international human rights institutions, including the United Nations (UN), that there was a moratorium on arrests, detention and prosecution of people alleged to have engaged in homosexual practices.
In a letter sent to Minister of Justice and Constitutional Affairs Samuel Tembenu dated December 15 2015, HRW asked government to instruct the police that no one should be arrested on the grounds of their real or perceived sexual orientation or gender identity.
“We urge the Malawian authorities to immediately drop the charges against Kelvin G. and Cuthbert K. Instead, the authorities should investigate the actions of community police members and local residents who, according to the lawyer of the accused, physically assaulted the two men and unlawfully entered and ransacked Kelvin G’s home,” Graeme Reid, director for LGBT Rights Programme at HRW wrote.
The letter is copied to the Office of the President and Cabinet (OPC), Ministry of Home Affairs and Internal Security, Malawi Human Rights Commission, Office of the High Commissioner for Human Rights Malawi, UNAids Malawi, Centre for the Development of People (Cedep) and Centre for Human Rights and Rehabilitation (CHRR).
Reid said by dropping charges, Malawi would be upholding the African Commission Resolution 275 of 2013, which calls for member States to cease arbitrary arrests and to protect individuals from violence on the grounds of sexual orientation and gender identity.
Malawi is also a signatory to the International Covenant on Civil and Political Rights which guarantees the right to privacy and the right to non-discrimination of all people.
Malawi suspended enforcement of anti-gay laws, among them Sections 137(a), 153, 154 and 156 of the Penal Code pending a High Court review of their constitutionality, but this has not been concluded, HRW said.
On the US Embassy Lilongwe Facebook page, US Ambassador Virginia Palmer also called for the non-discrimination of lesbian, gay, bisexual, transgender and intersex persons as a matter of human rights, public health and public order.
“I urge government to make good on its international human rights obligations, drop the charges and resolve this unfortunate incident as quickly as possible,” she wrote.
In a follow-up e-mail interview yesterday after the Facebook post to find out what is at stake if Malawi fails to comply with the request to drop charges against the suspects, US Embassy public affairs officer in Lilongwe, Edward Monster, said it is Malawi’s international reputation for upholding human rights standards that is on the line.
“The government has stated its policy is not to arrest, detain, charge, or pursue people engaged in consensual same-sex activity. I urge the government to make good on its international human rights obligations,” he said.
Monster also said there is misinformation that US assistance is specifically tied to promotion of LGBT rights, but said Washington takes human rights violations seriously.
“It [tying aid to promotion of gay rights] is not, but adherence to international human rights standards [and the agreements to which Malawi has already subscribed] bolsters the case for assistance to Malawi. All over the world, the United States has found that governments that govern on behalf of their people, are accountable and respect the human rights of their citizens are more effective and get better results than those that do not,” he said.
Asked if non-compliance to human rights standards such as in the gay issue would affect the $350 million Millenium Challenge Corporation [MCC] grant for boosting Malawi’s energy sector—whose scorecard includes governance—would be affected, Monster said “the rights of LGBTI persons are human rights and donors take adherence to human rights principles seriously”.
Gay rights advocacy body, Centre for the Development of People (Cedep), has also asked government to adhere to international commitments on human rights.
Cedep executive director Gift Trapence said he was worried that the same government which instituted the moratorium and sought funding from the Global Fund for Malaria, Aids and Tuberculosis had turned around to drive the minority group underground.
Cedep and Human Rights Watch claim that the two men underwent forced medical examinations which, they said, was degrading and an insult to their dignity.
Reacting to the calls, Tembenu confirmed that there was a moratorium in place, but the ministry was investigating circumstances that led to the arrest of the two.
A seven-site Men who have Sex with Men (MSM) HIV prevalence, socio-behavioural and population size estimation study released at the end of 2014 found that there are 38 734 people who engage in homosexual activities, representing 1.84 percent of the overall male population aged 20 to 39 years in Malawi.
President Mutharika—currently on a charm offensive to woe back donors and has had a string of controversies on governance issues—on Monday expressed ignorance on the arrest of the two men at a time when there is a moratorium in place, but promised to inquire from the Minister of Home Affairs on the status of the charges against the two. n