Malawi, like most democratic African countries, has struggled to develop progressive jurisprudence on sexual minorities in courts due to legalized homophobia. The co-existence of the penal code with the sodomy law on the one hand and the Constitution on the other is problematic as it allows unchecked illegality in courts. Common law has allowed the use of retrogressive jurisprudence to criminalise homosexuality through the penal code. It has equally allowed progressive jurisprudence which decriminalises it through the Constitution. Such co-existence is paradoxical, demonstrating that the law can have two facets of the truth. This paper argues that constitutional morality must shape the court and not social morality. Leveraging gaps identified in queer theory, this study advances the scholarship through the development of a research model that recommends scientific queer epistemology through anthropological and historical approaches to create scientific queer jurisprudence. It offers a paradigm shift in the discourse from courts operating illegally to the rule of law through the proposed regulation of common law.

 

Legal homophobia is created through the enactment of laws that criminalise same-sex relationships. It is defined as cultural prejudice towards sexual minorities manifested through repressive laws (Anderson 2024). About 69 countries in the world criminalise homosexuality. Of these, 33 are African countries (Reid 2022). Such criminalization is based on the predominant belief that homosexuality is un-African and a Western concept. There is an emerging counter-discourse that rejects such theorizing. Tamale (2013) argues that history and anthropology reveal that same-sex relationships existed during the pre-colonial era without criminalization. She contends that legalized homophobia and not homosexuality was exported to Africa from Europe “in the form of Western codified and religious laws” (36). The British who developed the law abandoned it following the Wolfenden report in 1957, noting “homosexual relationships between adults by mutual consent and privacy, are… not within the province of criminal law and should be removed from our statutes” (SHD1957, 10). A historical and anthropological analysis by Murray and Roscoe (1998) concurs with Tamale that homosexuality in Africa could be traced to around the 1900s. Ngwena contends that Africa is pluralistic in sexuality (2018, 10). He suggests having a radical epistemology that would disrupt the discourse on normalizing heterosexuality (heteronormativity). Ngwena (2018), Tamale (2013) and Murray and Roscoe (1998) all observe that anthropology had either ignored or dismissed the existence of homosexuality among Africans. Murray and Roscoe state that most of what is regarded as African tradition emanates from colonial writing that disrupted African culture (11).

 

It has been argued that in criminal law one must establish mens rea (criminal intent) that can establish harm (Herring 2022). Failure to do so, puts in dispute the legal rules for establishing criminality. Unfortunately, countries like Malawi still use this sodomy law. This has implications as it is in ultra vires (beyond jurisdiction) of the Constitution. The court that is supposed to be jurisgenerative (create law) on sexual minorities, has brought inconsistencies in instead. Against this background, the development of LGBT (lesbian, gay, bisexual and transgender) jurisprudence through common law poses a significant challenge in the courtroom.

 

The Historical Context of the Legal Framework on LGBT in Malawi

 

Malawi has a 1929 penal code adopted from the British (Bande 2020). It is modeled on the 1860 Indian penal code which was itself inherited from British colonial rule (HRW 2008). The anti-homosexuality  law under section 377 of the Indian penal code from which Malawi developed its own jurisprudence was decriminalized in 2018 between consenting adults (Johar v Union 2018). The law persists in the Malawi Penal Code. Section 153 refers to unnatural offences and 154, to attempt to commit unnatural offences and 156 on indecent practices between males ( (DPP 2012). In 2011, the Malawi Law Commission added another section 137A which criminalized same-sex relationships among females (Kangaude 2019).

 

Malawi has a Constitution with a Bill of Rights which is a combination of the Universal Declaration of Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Convention on Civil and Political Rights (ICCPR). These instruments have expounded non-discrimination grounds to sexual orientation and gender identity (SOGI). The Constitution is not explicit on SOGI. However, the framers of the Bill of Rights have interpreted it to include SOGI as in the landmark case of Toonen v. Australia (1994). Citing the case, Mazel (2022) argues that international human rights law (IHRL) has the potential to transform domestic legislation. The country has also adopted the African Charter on Human and People’s rights (ACHPR), and is thus a party to the 2014 African Commission’s Resolution 275. The Resolution condemns “other forms of persecutions of persons on the basis of their imputed or real sexual orientation or gender identity” (2). Human Rights Watch argues that by having the anti-homosexuality law, the country is in breach of its human rights obligations on the ACHPR, ICCPR and the ICESCR. One key challenge to the country’s adoption of IHRL in its legal framework in Malawian courts is poor interpretation of the Constitution. Kapindu (2015, 75) argues that in a dualist State like Malawi, IHRL ought to automatically become part of the legislation. Gloppen and Kanyongolo have also argued that lack of pro-poor jurisprudence in Malawian courts can be attributed to lack of justiciability of socio-economic rights and lack of jurisprudence on social rights exacerbated by lack of landmark judgments on the same (Gloppen and Kanyongolo 2007).

 

 

Methodological Approaches

 

This study was a desk research from the recent Malawi court case on homosexuality. It uses data from strategic litigation of amici curiae (friends of the court) in a case involving a 27-year-old transgender woman convicted of procuring sex under false identity and a 51-year-old Belgian man accused of raping several boys. It also uses case law from other jurisdictions and other primary legal sources such as the penal code, Constitution and IHRL. The study uses queer theory, introduced by Teresa De Lauretis in 1991 (Watson 2005). Queer African studies have emerged to interrogate queer theory of its Western foundational influences (Asante 2022). It is argued that postcolonial thinking is still entrenched in the colonial rhetoric that denies the existence of homosexuality, regarding it as un-African and a Western phenomenon (Hawley 2001). Queer theory provides decolonial methods. However, it is argued that decolonial methods alone are not “sufficient for epistemic justice” (Meer & Muller 2023, 21-22). It is also argued that queer theory has potential to achieve substantive equality (Kepros 2000). Within queer theory is also the concept of queer legal theory (QLT). It is considered ‘outside jurisprudence’ as it is not recognised in traditional law (Banovic 2023). QLT’s goal is to bring queer consciousness into law and court. Kepros recommends that QLT develop literature to provide materials for courts to eliminate ‘heterosexist fiction’. According to her, QLT offers an anti-discrimination doctrine that would be devoid of ideological baggage (296).

 

 

Findings and Discussion

The court case in the High Court of Malawi against the Director of Public Prosecution (DPP) (Akster and Another v. DPP and Another, 2024) is the most recent one concerning sexual minorities. Skeleton arguments were presented before the court from the Attorney General (AG) which were anti-homosexuality and amici curiae that were anti-LGBT rights and those that were pro LGBT rights. The claimants were challenging the constitutionality of the anti-homosexuality law in the penal code sections 153, 154,156 and 137A as a violation of their human rights on the key principles of human dignity, non-discrimination and right to privacy. The court quashed all arguments citing that the applicants failed to demonstrate how the sodomy law discriminated against sexual minorities and to either appeal to the Supreme Court or opt for law review with legislators.

 

Common Law Implications

 

The skeleton arguments presented in court by both the AG and the amici curiae included different interpretations of case law from other jurisdictions. It is interesting how the same case law can be interpreted mythically and scientifically depending on the judges. The implication of this is that both scientific epistemology and scientific jurisprudence as well as mythical epistemology and mythical jurisprudence are accepted, legitimised, and legalised. Case law from African countries cited in the Malawi court case included RSA and Kenya. However, other jurisdictions such as Botswana and Namibia. The ECtHR and the Inter-American Court of Human Rights (IACHR) had also been used to set legal precedent.

 

 

National Coalition for Gay and Lesbian Equality v. Minister of Justice

 

The AG referred to the South African case (1998) to argue that the principle of privacy did not forbid States from interfering if the acts were shameful. However, the AG ignored the broader ruling of the case. Drawing inspiration from ECtHR in (Dudgeon v. The United Kingdom 1981) and in (Norris v. Ireland 1988) the RSA court held that sodomy laws were in violation of privacy, contrary to the AG’s claims. The AG had also made reference to the ECtHR in (Willis v. United Kingdom 2002) on the definition of discrimination without acknowledging progressive jurisprudence on LGBT in the UK. The RSA case found the views on the concept of marriage as dictated by heteronormativity as being possessed by “crude bigots” (39). Again, this contradicted the AG’s religious pronunciations. The court condemned morality that was based on beliefs instead of the Constitution. The court held “The enforcement of the private moral views … which are based … on nothing more than prejudice, cannot qualify as such a legitimate purpose” (ibid., p.37).  It was further noted, “the Bill of Rights is … founded on deep political morality” (ibid., p.132) based on “constitutional guarantees not with unwarranted assumptions” (ibid., p.133). Again ‘unwarranted assumptions’ reference the ideological baggage of the law which is interrogated by queer theory. The court demonstrated how sodomy laws had been invalidated in most of the mature democracies. It called for substantive equality against formal equality and pointed out that criminalization “reinforced systemic disadvantage” (ibid., 119).

 

 

Eric Gitari v. NGO Coordination Board and Others

 

The AG had also referred to a Kenyan case Eric Gitari v NGO Coordination Board (2023).  In his argument, the AG insisted that the sodomy law is neither unclear nor ambiguous, agreeing with the case. This case was quite interesting as the judgment seemed to be conflicted. There were parts that were retrogressive and others that were not. Despite questionable interpretation in some parts, the difference in State arguments between this case law and the Malawian court case is that the former tried to balance arguments with some progressive case laws. For instance, there were reservations on the penal code. It was pointed out “Talking of Kenya’s penal system…was transplanted and adapted to the exigencies of the British Colonial administration … The relevance of some of these laws remains controversial debate” (74). The court had also made reference to the case of Johar v Union. It noted that section 377 on sodomy law was found unconstitutional and “manifestly arbitrary”. On morality, it also quoted the Wolfenden report on outlawing the law. It was further pointed out that constitutional morality included pluralism and inclusiveness. In Wisconsin v. Yoder (1972) it was also noted that religion did not give license to state to offer moral judgement to its citizens (Johar v Union 2018).

 

 

Motshidiemiang v AG of Botswana & Dausab v The Minister of Justice of Namibia

 

In Motshidiemang v. Attorney General Botswana (2019), the Botswana case displayed queer consciousness. The court held that the arguments made by the respondents were not based on science and that the public morality argument was not “buttressed by any factual, scientific and cogent evidence” (105). The High Court further held that the sodomy law was ultra vires to the Constitution. The court found the law unreasonable and unjustifiable. Referring to the Wolfenden Report, it also emphasised that “there must remain a realm of private morality and immorality which is not the law’s business” (122). In the recent Namibia case, Dausab v The Minister of Justice, (2024) the court also held that sodomy laws were unconstitutional and struck down all statutes containing the law and declared them invalid. It also held that society’s mere dictates of morals and values did not make certain actions criminal. The judge reasoned, “By whose moral values is the State guided?” (15). The judge also noted that public opinion could be characterised by prejudice.

 

 

Conclusion

 

 

This study set out to interrogate the epistemology used for LGBT law, which also has implications for the epistemology used in the courtroom for LGBT and the sort of jurisprudence that comes out of such an epistemology. This epistemology claims that homosexuality is a Western concept and therefore un-African and against African values. It reinforces heteronormativity with no legal backing apart from the belief that it is perverse and against social morality. Queer theory condemns this and advocates for a queer world in both scholarship and jurisprudence to reflect the social reality of queer society. Prior studies have revealed that the anti-rights epistemology is not based on empirical evidence.  Such studies correlate with some historical and anthropological findings by scholars such as Murray and Roscoe that homosexuality existed even during the pre-colonial era. These studies therefore concur with queer theory’s assertions that the world is queer and has always been queer. However, such studies fall short of disrupting the dominant mythical epistemology. The study interrogated this mythical epistemology and suggests having a scientific queer theory that would create a scientific queer epistemology of LGBT and also scientific queer jurisprudence. It therefore advances the current queer theory which has been criticized for failing to overtake the dominant universalistic epistemology. Above all, it calls attention to the fictitious nature of the law exacerbated by such a false rhetoric. This aspect can never be ignored as it undermines the law. Illegality should not be allowed into law and those that allow it must be held accountable. The country has the potential to piggy-back on emerging jurisprudence from Africa and other jurisdictions such as the ECtHR, however, it has failed to do so.

​

 

 

Bibliography

ACHPR. 2014. ACHPR/res.275 (LV) 2014. May 12. https://achpr.au.int/en/adopted-resolutions/275-resolution-protection-against-violence-and-other-human-rights-violations.

Akster and Another v DPP and Another. 2024. 2 of 2021 (High Court of Malawi, June 28).

Anderson, Eric. 2024. Homophobia: Psychology and Society. July 18. https://www.britannica.com/topic/homophobia/Contemporary-attitudes-toward-homosexuality.

Asante, Godfried. 2022. Queer African Studies. Oxford: Oxford University Press.

Baisley, Elizabeth. 2015. "Framing the Ghananian LGBT Rights Debate: Competing Decolonisation and Human Rights Frames." Canadian Journal of African Studies 383-402.

Bande, L, C. 2020. "A History of Malawi's Criminal Justice System: From Pre-colonial to Democratic Period." Fundamina: A Journal of Legal History 288-336.

Banovic, D. 2023. "Queer Legal Theory." In Feminist Approaches to Law: Theoretical and Historical Insights, by Dragica Vujadinovic, Antonio, Alvarez del Cuvillo and Susanne Strand, 73-91. Cham: Springer.

Brimmer, Jesse. 2020. "Un-African" African Sexualities: Post-Colonial Nation Building and the Condititioning of Citizenship in Sub-Saharan Africa with Analysis of Eganda and Kenya. https://www.etd.ceu.edu>brimmer_jesse.

Closley, Jenna. 2021. What is Thematic Analysis? April. https://gradcoach.com/what-is-thematic-analysis/.

Cornell Law School. 2023. Jurisprudence. June. https://www.law.cornell.edu/wex/jurisprudence.

Dausab v. Minister of Justice. 2024. HC-MD-CIV-MOT-GEN-2022/00279 (High Court of Namibia, June 21).

De Lauretis, Teresa. 2000. "Queer Theory: Lesbian and Gay Sexualities: An Introduction." A Journal of Feminist Cultural Studies 111-xviii.

DPP. 2012. Penal Code Chapter 7:01 of the Laws of Malawi. Lilongwe: Malawi Government.

Dryden, Steven. 2019. A Short History of LGBT Rights in the UK. October 26. https://goodmenproject.com/social-justice-2/a-short-history-of-lgbt-rights-in-the-uk/ .

Dudgeon v. The United Kingdom. 1981. 7525/76 (European Court of Human Rights, October 22).

Gloppen, Siri, and Fidelis, Edge Kanyongolo. 2007. "Courts and the Poor in Malawi: Economic Marginalisation, Vulnerability and the Law." International Journal of Constitutional Law 258-293.

Gupta, Alok. 2006. "Section 377 and the Dignity of Indian Homosexual." Economic and Political Weekly 4815-4823.

Hawley, J, C. 2001. Postcolonial, Queer: Theoretical Intersections. New York: State University of New York Press.

Herring, Jonathan. 2022. Criminal Law Second Edition: The Basics. Oxon: Taylor and Francis.

Hobbs, Pamela. 2011. "Defining the Law: (Mis)using the Dictionary to Decide Cases." Discourse Studies 327-347.

HRW. 2008. This Alien Legacy: The Origins of "Sodomy" Laws in British Colonialism. New York: Human Rights Watch.

Johar v Union. 2018. 76 of 2016 (Supreme Court of India, September 6).

Kangaude, Godfrey, Dalitso. 2019. "A Review of the Role of Malawi's Law Reform Agency in Criminalisation and Decriminalisation of Female Same-Sex Sexual Conduct." Journal of Lesbian Studies 306-320.

Kapindu, Redson. 2015. "The Relevance of International Law in Judicial Decision-Making in Malawi." In Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi and Zambia, by Malawi Judiciary, NAWABO SALC, 74-84. Johannesburg: SALC.

Kepros, Rose, Laurie. 2000. "Queer Theory: Weed or Seed in the Garden of Legal Theory." Law & Sexuality 279-310.

Lennox, Corrine, and Matthew Waites. 2013. Human Rights, Sexual Orientation and Gender Identity in the Commonwealth: Struggles for Decriminalisation and Change. London: University of London.

Mackinnon, Catharine, A. 1982. "Feminism, Marxism, Method and the State: An Agenda for Theory." Signs 515-544.

Malawi Government. 2012. Constitution. Lilongwe: https://www.malawi.gov.mw/index.php/resources/documents/constitution-of-the-republic-of-malawi.

Mazel, Odette. 2022. "Queer Jurisprudence: Reparative Practice in International Law." Symposium on Queering International Law. Cambridge: Cambridge University Press. 10-15.

Meer, Talia, and Alex Muller. 2023. "The Messy Work of Decolonial Praxis: Insights from a Creative Collaboration among Queer African Youth." Feminist Theory 1-23.

Misra, Geetanjali. 2009. "Decriminalising Homosexuality in India." Taylor and Francis 20-28.

Motshidiemang v. Attorney General. 2019. MAHGB-000591 (High Court of Botswana, June 11).

Msosa, Alan. 2017. "Human Rights and Same-Sex Intimancies in Malawi." CORE 1-315.

Msosa, Alan, and Chrispin Sibande. 2022. "LGBT+ Lawfare in Malawi." In Queer Lawfare in Africa: Legal Strategies in Contexts of LGBTIQ+ Criminalisation and Politicisation, by Siri Gloppen, Alan Msosa and Frans Viljoen, 83-203. Pretoria: Pretoria University Law Press.

Murray, Stephen, O, and Will Roscoe. 1998. Boy-Wives and Female Husbands: Studies in African Homosexualities . New York: Palgrave.

Mwakasungula, Undule. 2013. "The LGBT Situation in Malawi: An Activist Perspective." CORE 359-379.

National Coalition for Gay and Lesbian v. Minister of Justice and others. 1998. CCT 11/98 (Constitutional Court of Sourth Africa, October 9).

NGOs Coordination Board v. Eric Gitari. 2023. 16 0f 2019 (Supreme Court of Kenya, February 24).

Ngwena, Charles. 2018. What is Africanness? Contesting Nativism in Race, Culture and Sexualities. Hatfield Pretoria: Pretoria University Law Press.

Norris v. Ireland. 1988. 10581/83 (European Court of Human Rights, October 26).

Reid, Graeme. 2022. Progress and Setback on LGBT rights in Africa: An Overview of Last Year. June 22. https://www.hrw.org/news/2022/06/22/progress-and-setbacks-lgbt-rights-africa-overview-last-year.

Saunders, Mark, Phillip Lewis, and Adrian Thornhill. 2009. Research Methods for Business Studies: Fifth Edition. London: Pearson Education.

SHD. 1957. Wolfenden Report. London: Her Majesty's Stationery Office.

Tamale, Sylvia. 2013. "Confronting the Politics of Nonconforming Sexualities in Africa." African Studies Association 31-45.

Toonen v Australia. 1994. 488 of 1992 (Human Rights Committee, March 31).

Turner, William, Benjamin. 2000. A Genealogy of Queer Theory. Philadelphia: Temple University Press.

UN. n.d. About LGBT People and Human Rights. https://www.ohchr.org/en/sexual-orientation-and-gender-identity/about-lgbti-people-and-human-rights.

—. 2016. General Comment No.22. May 2. https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQfQejF41Tob4CvIjeTiAP6sGFQktiae1vlbbOAekmaOwDOWsUe7N8TLm%2BP3HJPzxjHySkUoHMavD%2Fpyfcp3Ylzg.

—. n.d. Guidance Note of the Secretary-General on Democracy. https://www.un.org/democracyfund/sites/www.un.org.democracyfund/files/un_sg_guidance_note_on_democracy.pdf.

—. n.d. Independent Expert on Sexual Orientation and Gender Identity. https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity.

—. n.d. International Bill of Human Rights: A Brief History and the two International Covenants. https://www.ohchr.org/en/what-are-human-rights/international-bill-human-rights.

Watson, Katherine. 2005. "Queer Theory." The Group Analytic Society 67-81.

Willis v. United Kingdom. 2002. 36042/97 (European Court of Human Rights, June 11).

Wisconsin v. Yoder. 1972. 70-110 (Supreme Court of Wisconsin, May 15).