abridged version of EPJC’s submission to Malawi Human Rights Commission (MHRC)
1.0. ABOUT THE ETHICS, PEACE AND JUSTICE (EPJC)
The Ethics, Peace and Justice Commission (EPJC), is a special Commission of the Evangelical Association of Malawi (EAM), which is an umbrella church mother body of 64 Church denominations and 58 Christian Organizations in Malawi, with the mandate to promote peace, justice, and good governance in Malawi.
The EPJC would like to advance its position in response to Government’s decision of a public inquiry on laws that criminalise homosexuality and the MHRC recent “call for Public Input on the Roadmap for Implementing a public inquiry into LGBTI in Malawi.”
2.0. RESTATING OUR POSITION ON HOMOSEXUALITY DEBATE
2.1. THE CITIZEN MARCH FOR LIFE AND FAMILY AS A PLATFORM TO PRESENT OUR POSITION ON HOMOSEXUALITY DEBATE
Our position on the subject matter of homosexuality has not changed and will never change: homosexuality remains a sin and an abomination before God [1 Timothy 1:10; Jude 1:7; Romans 1:32; 1 Corinthians 6:9-11 Leviticus 18:22]. This position was restated in the 6th December 2016 petition submitted to Parliament and all the districts and city councils in Malawi by all Malawians of goodwill under the leadership of the Episcopal Conference of Malawi (ECM) of the Catholic Church, and the Evangelical Association of Malawi (EAM), in partnership with other faith groups like Quadria Muslim Association of Malawi (QMAM), Rastafarian faith, and others during the Citizen’s March for Life and Family.
It is in this regard that we restate that: sex and marriage is naturally between man and woman, and man and woman union is the naturally ideal and complete basic unit of a society.
2.2. HOMOSEXUALITY AS A THREAT TO THE FABRIC AND MORALITY OF A SOCIETY
Besides being sinful and an abomination before God, homosexuality is a threat to the fabric and morality of a society as the union between man and woman is the foundation or basic unit of a society, and that anything that runs counter to this set-up must hence be challenged. Precisely, our Constitution (Section 13, 22, 33) recognizes that the family by virtue of being a natural and fundamental group unit, is entitled to protection by society and state. Besides, Section 23 specifically states that children have the right to know, and also to be raised by their parents [biological – father and mother], partly rejecting any idea of homosexual “couples” having the right to adopt children. The duty to protect the family as a basic unit of a society is, besides our Constitution and other pieces of our domestic laws, also recognized in other foundational international and regional human rights consensus documents like the Universal Declaration of Human Rights (Article 16) as well as the International Covenant on Civil and Political Rights (Article 26), and the African Charter on Human and Peoples Rights (ACHPR).
2.3. THE PLACE OF HOMOSEXUALITY IN INTERNATIONAL HUMAN RIGHTS LAW: NO GLOBAL CONSENSUS ON THE MATTER
We observe that the place of homosexuality [or the so-called “LGBT’ “rights”] under international human rights law, remain highly contested. While there has been a drastic push towards the universal recognition of homosexuality [under the bunner of “LGBT”] in recent years by homosexuality “rights” campaigners across the globe through portraying a false picture that these claimed “rights” have attained “universality” status, these matters remain highly contested globally to the extent that there is no consensus even amongst the so-called developed countries. The very fact that the world has witnessed some countries holding national referendum on the matter, and also some conflicting court rulings across the globe with some recognizing homosexuality “rights” and still others rejecting them, speaks volumes about the proposition that there is no “universality” or global consensus on “LGBT” as “rights” despite the growing pressure by some international agencies and homosexuality and “transgender’ “rights” campaigners piled on developing countries like Malawi, to recognize such “rights” as rights.
Besides, just like our Constitution, the UDHR, the UN Charter and the so-called seven “core” UN international human rights treaties ( ICCPR, CAT, ICESR; CERD, CEDAW, CRC, and MWC ) the word “sex” (implying male or female) rather than “sexual orientation” (the phrase that is used to advance homosexuality or “LGBT” agenda), is used, and no where do we see the phrases “Lesbians, Gay, Bisexual and Transgender rights [LGBTI]” in these overarching international human rights documents.
This clearly underscores the fact that the framers of these international consensus documents were informed by a conception of sex as naturally being male or female, and had high regard for protection of family as a basic unit of a society.
2.4. THE ONLY ACCEPTED “PUBLIC INQUIRY” ON MATTERS OF HOMOSEXUALITY IS A REFERENDUM: TIME TO DEFEND THE CONSTITUTIONAL TERMS
We would also like to state that the only accepted “public inquiry” to inform Government as to whether to remove those laws that criminalise homosexuality is a referendum – not a stakeholder centred public inquiry as the Government would want to make us believe. This is so because any change or removal of the laws that criminalise homosexuality will by implication means a change in the definition, scope of marriage and family as held in our Constitution and other domestic laws.
And family as one of the principles of national policy (Section 13 of the Constitution) and hence being under an entrenched provision of the Constitution [ as reflected in the Schedule to the text of the Constitution], is a protected area in our Constitution based on the principle of Constitutional Stability, and any attempt to affect such through the repealing of laws that criminalise homosexuality without consulting Malawians through a referendum, is not only wrong and unacceptable, but also a gross violation of the Constitution.
Besides, the Report of the Law Commission on the Electoral Laws (2017), clearly states that “Government might also decide to initiate the referendum because public pressure forces it to hold one or it is divided on the issue at hand.” Already, Government confessed that it was receiving enormous pressure, hence the decision on the public inquiry.
It can therefore be argued that Government can consider initiating a referendum on this matter based on the said pressure it is receiving. In fact, Government should go further to tabling the Referendum Bill [as prepared by the Law Commission], in the next November sitting of Parliament, and then subsequently subject the issue to a referendum as per the Constitution guarantees [e.g Section 89(1) (i) ].
After all, President Arthur Peter Mutharika already pledged during the Presidential 2014 debate pledged to subject the issue to a referendum.
3.0. OUR REACTION TO MHRC’S STATEMENT
3.1. CONTRADICTIONS ON THE PURPOSE OF THE PUBLIC INQUIRY
While the MHRC statement is right by stating that Government indicated that the outcome of the public inquiry would help it to “determine the way forward,” the November 2016 statement from Government was explicit and specific on this way forward –Government would seek the views from the public in order to determine as to whether to remove the laws that criminalize homosexuality or not. In fact, this was the overall objective of the said public inquiry – NOT the one indicated in the MHRC statement: “to get views from the public that would be used to inform the national position on the controversial issue of LGBTI.” Besides, the national [Malawi] position on the so-called “controversial issue of LGBTI” is an already established and settled issue as ably stated in our domestic laws [the penal code, Constitution, Marriage Act etc.].
It is therefore misleading [on the part of Government] to suggest that Malawi does not have a position on the issue. Malawi’s position is loud and clear: Homosexuality is illegal in Malawi.
3.2. THE USE OF SUCH PHRASES LIKE “GAY RIGHTS”, “LGBT”: LANGUAGE MATTERS IN THIS DISCOURSE
We also observe with concern that the MHRC’s statement uses such words and phrases like: “gender identity and expressions” (SOGIE, “LGBT,” Lesbians, Gays, Bisexual and Transgender, and “gay rights.”) Such words or phrases are never found in any of our laws. Our laws are clear that: homosexuality is illegal. It is in this regard that it is weird for the MHRC [besides Government] to use these phrases, which by implication seem to suggest that MHRC – contrary to our laws and Malawi’s position – acknowledges and recognizes such “rights,” and this in turn shows that the design of the inquiry is already skewed –towards promoting the homosexuality agenda.
3.3. THE PROPOSAL BY MHRC “TO MOVE THE MINISTRY OF JUSTICE AND CONSTITUTIONAL AFFAIRS TO SUBMIT TO PARLIAMENT A BILL OF LAW FOR THE SUSPENSION OF SECTION 153 AND 156 OF THE PENAL CODE UNTIL THE PUBLIC INQUIRY IS FINALIZED” IS UNCONSTITUTIONAL AND SMACKS OF THE HIDDEN AGENDA
We also observe that it is unconstitutional for MHRC to “move the Ministry of Justice and Constitutional Affairs to submit to Parliament a Bill of law for the suspension of Section 153 and 156 of the Penal Code until the public, inquiry is finalized.
Neither Parliament nor the Legislature [including Judiciary], – in our considered view – has the powers to suspend a law or laws, whose change or suspension requires a referendum. Already, the Court granted an injunction to some Mzuzu residents stopping Government from implementing a Moratorium on laws that criminalize homosexuality sought by Government.
To date the injunction has not been lifted. So moving Government to submit to Parliament a Bill of law for the suspension of Section 153 and 156, when the matter is in Court, is an anomaly of the Highest Order.
The inclusion of this recommendation, if truth be told, smacks of the hidden agenda. We also observe with great concern that the design of “the roadmap is not far from that of a homosexuality [or “LGBT”] advocacy and awareness project. The MHRC’s objectives and the suggested process [or roadmap], are typical of a baseline study of an “LGBT” [or homosexuality] advocacy or awareness raising project.
It is therefore important for all Malawians of goodwill, to rise up and defend the Constitution by reminding Government that the only legally and constitutionally backed platform to resolve the question of whether Malawi should remove its laws that criminalize homosexuality or not [which by implication means legalization of homosexuality in Malawi], is a referendum.
Malawians should further remind the Government through the Malawi Human Rights Commission (MHRC), that the question of Malawi’s position on homosexuality is an already established one, as clearly provided by our laws, and as such there is nothing like an “outstanding national position” on the matter as Government and the MHRC would want Malawians to believe.
When all is said and done, homosexuality remains illegal in Malawi, and if Government or any other body wants to change the status quo, then the referendum – not a public inquiry – is the way to go.
It’s time to rise up and defend the terms of the Constitution!
May God bless Malawi!?
Rev. Dr. Zacc Kawalala Makhumbo R. Munthali
National Chairman National Secretary
Ethics, Peace and Justice Commission (EPJC) Ethics, Peace, and Justice Commission (EPJC)