Since
the arrest last December, the case has attracted a lot of criticism mainly from
human rights and gay rights groups that believed that the couple should have
been allowed to express their sexuality without any coercion or fear of
persecution. The case has also caused some diplomatic stand-offs between Malawi
and its Western donors many of whom have threatened to withdrawal aid in
protest against the arrest.
The
Malawian Government has rightly argued that it is a sovereign state prohibitive
of other countries meddling in its internal affairs. The Government, through
its spokesman, Leckford Mwanza Thotho has expressed its gratitude for the
conviction of the gay couple, stating: "What we are saying is that the
ruling or the court proceeding as of [today] reflects our tradition in Malawi.
It just shows that the gay issue is against our culture in Malawi."
Curiously,
the law that the court has used in prosecuting the couple was never devised by
Malawians; it is a colonial law that out-dates Malawi's 1964 independence. The
country's current constitution does not mention same sex marriages at all.
Section 20(1) of the constitution however states that:
"Discrimination
of 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, nationality, ethnic or
social origin, disability, property, birth or other status."
Whether
this makes the judgement unjust or unlawful, it is open to interpretation. But
it shows that the Malawian constitution is not discriminatory, and undermines
the Government's sovereignty argument when its courts are ignoring the
country's own laws in favour of outdated and discredited colonial law.
By
using colonial law, this ruling has not only undermines the supremacy of
Malawi's constitution and its 46 years of independence, it has also undermined
Malawi's 16 years of democracy, which was founded upon the 1992's Catholic
Bishops’ Pastoral Letter that ignited the inferno of change and helped to bring
down the country's 31 years of Hastings Banda's dictatorship.
On
freedom of expression and association, the Bishops’ letter stated:
"...moreover
human persons are honoured - and this honour is due to them - whenever
they are allowed to search freely, to voice their opinions and be heard, to
engage in creative service of the community in all liberty with the
associations of their own choice. Nobody should ever have to suffer reprisals
for honestly expressing and living up to their convictions: intellectual,
religious or political."
This
letter became a benchmark of Malawi's democracy and the country's constitution
reflects that. By ignoring the constitution the courts have inadvertently
reversed much of the progress that Malawi has made since the independence.
For
Steven and Tiwonge, history is on their side. Throughout human history, freedom
has had to be won, be it slavery, apartheid, colonialism, racism, women's
rights, and people suffering in the hands of their oppressors who were mainly
driven by economic interests and domination. This begs thequestion:
what do the Malawi Government hope to achieve by persecuting gay people?
I
am aware that homosexuality remains a controversial issue even in the most
developed democracies but surely “indecency” and “unnatural acts”, which the couple has been convicted for,
cannot be given priority over Malawi’s fledging democracy. The court could not
do any worse to bypass its own laws only to convict people that are not a
threat to society.