As debate continues on same-sex marriages in the country, LEWIS BANDE, lecturer in law at Chancellor College, weighs in by questioning the relevance and justification of the law used to regulate sexual activities in the country.
By now, most Malawians have an idea that the law in the country criminally prohibits homosexual activities. So, men are prohibited from having sex with men and women with fellow women. Anecdotal evidence suggests that most Malawians actually support the law’s stance on this.
I am pretty sure it may come as a surprise to most Malawians to learn that the law does not only tell people with whom to have sex with, but also how to do so.
Hence, it is not only a crime to have sex with someone of your own sex, but also to have sex with someone of the opposite sex contrary to what the law prescribes.
This begs one simple question: Is it a good policy for the law to regulate how consenting adults should have sex?
I want to address this question by reference not to the well-known homosexual offences, but to the less known offence of having sex against the order of nature, which also targets heterosexuals.
Briefly summarised, our law prohibits people-including heterosexual couples-from having sex contrary to “the order of nature.” It matters not that the people involved are consenting adults, or that the sexual activity happened in private. Hence, a legally married husband and wife can be arrested and punished if they have consensual sex in the privacy of their matrimonial bedroom contrary to order of nature.
Oddly, the law does not tell what sexual activities are in accordance with the order of nature, and those that are not. This has been left to the police and courts to decide. Can one imagine that: the law has recklessly left it to the police and courts to decide what sexual activities between consenting adults are permissible and which are not?
This law’s attempt to regulate how consenting adults should have sex is problematic on several fronts. Limitations of space mean that I can only discuss one of these: respect for human rights, particularly the rights to dignity and privacy.
The idea that adults should be told how to have sex and, worse still, to be punished for having sex as they wish in the privacy of their bedrooms, is not only demeaning, but also an assault on their dignity. With the offence in the statute books, it means that adults should constantly cross-check with their lawyers, or even the police, before trying new things in their bedroom.
More indignity awaits those who are arrested and prosecuted for this offence. To be questioned about your private sexual life, even with your legally wedded spouse, and to be put through a public criminal trial over what you did with your legally wedded spouse in the privacy of your matrimonial bedroom, can shatter every person’s sense of dignity.
Further, the enforcement of this offence inevitably involves serious violations of the right to privacy. An individual’s sexual life constitutes the core of his/her right to privacy. Accordingly, any interference with a person’s private sexual life is an assault on that right. Such interference can only be justified on very strong grounds.
Now, every stage in the enforcement of this offence involves a serious violation of the privacy rights of those concerned. One can just imagine the type of evidence that will have to be adduced to prove such an offence, or how such evidence will be collected by the police. The police will have to invade the sanctity of people’s bedrooms and peep under the blankets, to see how they are having sex. That is a serious violation of people’s privacy.
Besides constituting a serious violation of the dignity and privacy of those arrested or prosecuted for this offence, it is just hard to imagine any benefits the society in general derives from this needless sexual censorship. We are not worse off as a society because people want to have sex as they wish. The criminalisation is, therefore, deeply flawed and misguided. The sexual activities of consenting adults done in private should never be a prosecutable offence. It does not matter whether those adults are homosexuals or heterosexuals.
