I have keenly been following the debate on sexual minorities in Malawi and one thing has become clear. Some are arguing without a clear understanding of the subject matter. Others totally misunderstand the concepts around the issue altogether.
A classic example is the failure to distinguish between legalisation and decriminalisation. It has been argued that by repealing sections in our Penal Code criminalising â€˜indecent practicesâ€™ or â€˜unnatural offencesâ€™, that would legalise â€˜same-sex marriagesâ€™. Nothing can be further from the truth.
I join this debate to clarify some concepts used in this discourse, and also disabuse some of the notion that homosexuality is an offence in Malawi. De jure and de facto, it is not.
The first concept to be considered is homosexuality or being homosexual. A homosexual is a person who has sexual feelings or an erotic attraction towards a person or persons of the same sex. Males are called gays and females, lesbians. Statistically, the homosexual community are a minority in every population. Researchers estimate them to be somewhere between 4-8 percent or 2-10 percent.
Many of us have sexual feelings towards another person or other persons either of the same or different sexes. However, some, surprisingly so, have no sexual feelings or an erotic attraction towards any person or persons, whether of the same or different sexes. These are called asexual.
Second, is the heterosexual. They have sexual feelings or an erotic attraction towards a person or persons of the opposite sex. Statistically, these are a majority in every population. That explains why they are not in the sexual minoritiesâ€™ label.
Then, there are those who have sexual feelings or an erotic attraction towards persons of both male and female sexes. These are called bisexuals. This is another misunderstood concept. Some think a bisexual is a person born with different sexual organs. These are not bisexuals. Does it not strike you that society compartmentalises each one of us into some box?
The sexual feelings or the erotic attraction towards persons of either the same or opposite or both sexes, or the absence thereof in some, is termed sexual orientation or sexual identity. Many are heterosexual, some asexual, others bisexuals and yet others homosexuals. None of these is an offence in Malawi. They are all different forms of sexual orientations. Consequently, homosexuality cannot be an offence while the others are not. That would amount to discrimination. As a matter of law, homosexuality or being homosexual is not an offence in our laws. Mere physiological sexual feelings or erotic attraction or their absence in some among us cannot be criminalised.
So, conceptually, one must make a distinction between homosexuality or being homosexual and sexual practices that give expression to homosexuality. Where there is no act or conduct or practice, there is no offence known to the law. In other words, it is the practice or act or conduct that is criminalised and not the status or condition of being a homosexual. Homosexuality or being homosexual is and remains a form of sexual orientation.
The Penal Code criminalises carnal knowledge â€˜against the order of natureâ€™ committed by both heterosexuals and homosexuals in Section 153. Surprisingly, the debate thus far, has been one-sided. It is only the homosexuals that have been under attack and never the heterosexuals! Your guess is as good as mine.
In some countries, sexual orientation is a prohibited ground under the anti-discrimination clause in their laws. In Malawian laws, it is not specifically mentioned as a prohibited ground. However, sex is. Again, other jurisdictions that do not have sexual identity as a prohibited ground in their laws have adopted an expanded interpretation of â€˜sexâ€™ to include â€˜sexual orientationâ€™. Of course, that has not been without criticisms. Others have described it as doing â€˜violence to the languageâ€™ of the laws but it has been necessitated by the need to protect the rights of the sexual minorities.
In the Malawian context, every time sexual orientation or identity is mentioned, it is homosexual practices that come to most peopleâ€™s minds. Yet, as the discussion has shown thus far, sexual orientation is just a status or condition. It is as if we always identify each other by our sexual orientation or identity. We do not.- The author is a private legal practitioner based in Blantyre.