The Swedish and Finnish embassies in Zambia have incurred the wrath of some Zambains after raising the rainbow flag on the premises.
The flag which were hoisted together with the country’s national flags was a symbol of support for the lesbian, gay, bisexual, transgender (LGBT) and queer pride and LGBT social movements.
Same-sex relationships are outlawed in Zambia, where British colonial-era laws on homosexuality still apply.
The Swedish embassy in Zambia tweeted the rainbow flag using the hashtag #Idahot2022, which stands for International Day Against Homophobia, Biphobia, Intersexism and Transphobia.
“LGBTIQ rights are human rights – always and everywhere,” the tweet said. The Finnish ambassador also tweeted “standing together for human rights”.
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Former Zambian diplomat Emmanuel Mwamba has demanded answers from the country’s foreign ministry, The Lusaka Times website reports.
“It is surprising that these embassies chose to fly these flags at their premises without due regard to the law and cultural sensitivity of Zambians and Zambia on the matter,” he is quoted as saying.
In December 2019, the US recalled its ambassador to Zambia over a diplomatic row after he had criticised the imprisonment of a gay couple.
The Zambian government had accused the ambassador of trying to dictate policy.
Ghana’s lawmakers are pushing for tougher laws to deal with LGBT+ persons and those who promote their activities with a new draft bill.
The bill titled “The Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill 2021″ is being sponsored by some individual lawmakers who are anit-LGBT+ activists.
Details of the bill have now emerged with those behind the draft law seeking a jail term of up to ten years for culprits depending on the crime.
According to details of the bill, anyone of the same sex that engages in sexual intercourse are “liable on summary conviction to a fine of not less than seven hundred and fifty penalty units and not more than five thousand penalty units, or to a term of imprisonment of not less than three years and not more than five years or both.”
This punishment also covers any person who “holds out as a lesbian, a gay, a transgender, a transsexual, a queer, a pansexual, an ally, a non-binary or any other sexual or gender identity that is contrary to the binary categories of male and female.”
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The bill also seeks to punish those it deems promoters and allies of the LGBT+ community with a jail term.
It states that “a person who, by use of media, technological platform, technological account or any other means, produces, procures, markets, broadcasts, disseminates, publishes or distributes a material for purposes of promoting an activity prohibited under the Bill, or a person uses an electronic device, the Internet service, a film, or any other device capable of electronic storage or transmission to produce, procure, market, broadcast, disseminate, publishes or distribute a material for purposes of promoting an activity prohibited under the Bill commits an offence and is liable on summary conviction to a term of imprisonment of not less than five years and not more than ten years.”
There is also punishment for persons who engage in activities that “promotes, supports sympathy for or a change of public opinion towards an act prohibited under the Bill.”
Such offenders are liable on summary conviction to a term of imprisonment of not less than five years or not more than ten years.
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Various human rights activists have expressed their displeasure at this attempt by Ghana’s lawmakers to pass the law.
Last month eight members of Ghana’s Parliament jointly submitted the private bill to push for the criminalization of LGBTQI+ activities.
Ghana’s current criminal code only outlaws what it describes as “unnatural” carnal knowledge. The law is however silent on explicitly mentioning LGBT people and those who promote their activities.
Various human rights activists have expressed their displeasure at an attempt by Ghana’s lawmakers to pass a law that criminalizes activities of LGBTQ+ persons and those who advocate such rights in the country.
Last month eight members of Ghana’s Parliament jointly submitted a private bill to push for the criminalization of LGBTQI+ activities.
The bill, titled “Bill on the Promotion of Proper Human Sexual Rights and Ghanaian Family Values”, was presented to Speaker, Alban Bagbin who is an anti-LGBT+ activist.
The proponents of the bill want the promotion, advocacy, funding, and acts of homosexuality to be criminalized in Ghana.
The Executive Director of the Ghana Center for Democratic Development @CDDGha, Professor Henry Kwasi Prempeh has berated the Speaker of Parliament, Alban Babgin for becoming a “cheerleader” for the anti-LGBTQ bill and making international headlines “for all the wrong reasons.” pic.twitter.com/bzCPfIzgH8
The recent wave of repression of the activities of LGBT+ activities in Ghana comes on the back of arrest and detention of some 21 activists charged with unlawful gathering for meeting in the country’s Ho city for a paralegal training on LGBT+ rights.
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The stayed in detention for weeks before finally gaining their freedom but the state is yet to stop their prosecution.
At the last hearing last week, the Ho circuit court hearing the case adjourned the case to 5th August, 2021.
The prosecutors said they are still waiting for advice on the case from the Ghana’s Attorney General’s office.
Silent Majority Ghana (SMG), a rights advocacy group at a virtual press briefing called for charges against the 21 activists to be dropped and the case discontinued to end the abuse of justice happening in the courts and the erosion of civil liberties in Ghana.
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On June 15, 2021 the group coordinated a day of action to advocate for the freedom of the 21 activists and also to petition the Ministry of Justice, and Attorney General to immediately drop all charges against the 21.
We’re coordinating a day of action on June 15, 2021 to advocate for the freedom of the 21 activists who were arrested in Ho, and to petition the Ministry of Justice, and Attorney General to immediately drop all charges against the 21. #JusticeForTheHo21#DropTheChargespic.twitter.com/0SMBATVIg7
— Silent Majority Ghana (@smajoritygh) June 14, 2021
Silent Majority Ghana told reporters that current draft bill before Ghana’s parliament is to further suppress and oppress LGBT+ persons, as it fears it will also heightened hatred for such persons and their allies.
The group said there is the need to ensure a balance of voices in discussion about homophobia and queer rights in Ghana.
Already there is a move to get Ghanaians to sign an online petition to have the bill rejected and withdrawn.
The founder of the LGBT+ Rights Ghana Alex Kofi Donkor revealed at the online briefing that he and other LGBT+ persons feel unsafe in Ghana due to constant persecution and harassment.
Donkor said the Ghanaian society is becoming a dangerous and unwelcoming place for gay persons, something he expressed sadness about.
Human Rights Watch has said Ghana’s attorney general must drop charges against 21 human rights activists facing trial for attending a paralegal training session.
The activists were charged with “unlawful assembly” for attending a meeting on how to document and report human rights violations against lesbian, gay, bisexual and transgender (LGBT) people.
On June 11, 2021, the High Court released the activists on bail after 22 days in detention, raising hopes that the authorities would abandon abusive efforts to prosecute them.
But at a hearing on June 16, Circuit Court Judge Felix Datsomor granted the state prosecutor a postponement on the basis that the docket was with the attorney general for further advice and instruction.
“The unlawful arrest and detention of human rights defenders simply for attending a training session on human rights is a stain on Ghana’s reputation,” said Wendy Isaack, LGBT rights researcher at Human Rights Watch.
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“The prosecutor should immediately abandon this appalling effort to punish activists for learning about human rights.”
Police arrested the 16 women and 5 men on May 20 at a hotel where they were attending a paralegal training session by Rightify Ghana, a human rights organization.
Police justified the arrest on the grounds that the training session was promoting homosexuality and that the gathering was an unlawful assembly. Section 201 of the Ghana Criminal Code (Amendment) Act 2003 (Act 646) defines an unlawful assembly as the gathering of three or more people with the intent to commit an offense, clearly not the case in this instance, Human Rights Watch said.
The Circuit Court and High Court denied three bail applications before the High Court finally granted bail. Danny Bediako, executive director of Rightify Ghana, told Human Rights Watch that the repeated bail refusals and prolonged detention may be a tactic “to punish and instill fear among LGBT+ individuals and human rights defenders” and as a “political tactic to legitimize homophobic violence and support conservative members of parliament that are calling for further criminalization of same sex conduct.”
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The arrests are the latest attack on LGBT rights organizing in Ghana. In March, police raided a community center for LGBT+ people following mounting pressure by religious and traditional groups against the center, forcing it to close its doors.
Human Rights Watch has documented the human rights impact of section 104(1)(b) of Ghana’s penal code, which prohibits and punishes “unnatural carnal knowledge,” and the authorities’ failure to actively address violence and discrimination against LGBT people.
While few, if any prosecutions, have been carried out under this provision, Human Rights Watch found that the criminalization of adult consensual same-sex conduct contributes to a climate in which violence and discrimination against LGBT people are commonplace. Section 104(1)(b), commonly referred to as the anti-gay law, is seen as tacit government approval of discrimination, and even violence, on the basis of real or imputed sexual orientation and gender identity.
Several opinion leaders, including government officials and members of parliament, have spoken out against gay rights, contributing to a threatening atmosphere for LGBT people.
In February 2018, then-speaker of parliament Mike Ocquaye reiterated his position that the house will not be coerced to pass any legislation that endorses gay rights, and had warned in July 2017 “that leaders in countries like Ghana would not countenance the aggressive push by external forces to accept acts such as homosexuality, bestiality among others.
On March 8, the Ghanaian Times reported that six members of parliament had “hinted of jointly sponsoring a bi-partisan Private Members Bill… to proscribe and criminalise the advocacy and practice of homosexuality in the country.”
Such legislation would be inconsistent with the rights to freedom of assembly, association and expression, protected under the African Charter on Human and Peoples’ Rights (Banjul Charter) and the International Covenant on Civil and Political Rights (ICCPR), both of which Ghana has ratified and is bound to uphold. Ghana’s Constitution also expressly protects these freedoms.
In September 2020, the United Nations Human Rights Committee, which interprets the ICCPR, adopted General Comment No. 37 on Article 21, the right of peaceful assembly urging countries to ensure that “laws and their interpretation and application do not result in discrimination in the enjoyment of the right of peaceful assembly for instance on the basis of sexual orientation or gender identity.”
Any restrictions on peaceful assemblies “may not be imposed because of opposition to expressions of sexual orientation or gender identity.”
The African Commission on Human and Peoples’ Rights in 2014 adopted Resolution 275, “Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity” (ACHPR/Res.275(LV)2014), condemning “violence and other human rights violations, including arbitrary imprisonment” on the basis of their imputed or real sexual orientation or gender identity and calling on countries to “ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals or criminal prosecution as a result of their human rights protection activities, including the rights of sexual minorities.”
The Commission’s Resolution 376 on the Situation of Human Rights Defenders in Africa says that governments should adopt domestic legislation to protect human rights defenders working on issues related to sexual orientation and gender identity.
The African Commission’s Guidelines for Policing Assemblies by Law Enforcement Officials in Africa also says that countries should train all law enforcement officials on the safety and protection of groups that may face limitations on their right to freedom of assembly, including on grounds of sexual orientation and gender identity.
“Ghana should ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals, or criminal prosecution as a result of their human rights protection activities, including defenders working on sexual orientation and gender identity issues,” Isaack said.
“The authorities should stop harassing human rights defenders for doing their work and should disavow efforts to advance legislation that would further entrench discrimination against LGBT people.”
A high Court in Ghana on Friday granted bail to some 21 activists of Lesbians, Gay, Bisexual, and Transgender society.
They have been denied bail multiple times since their arrest on May 20, 2021 at a meeting in Ghana’s Volta region.
The UN asked the government of Ghana to release the suspects including 16 females and 5 males, arguing that their detention was a violation of international human rights.
The suspects who were said to have been at a conference in the Ho Municipality where the arrest was made, were charged with unlawful assembly.
Following their appearance in court, lawyers for the accused proceeded to the High court to file a bail application after an earlier attempt was declined by a lower court.
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The High Court, however, withheld the application this morning at a bail sum of $864 (GHC 5,000) for each applicant and one surety each who are expected to submit a valid ID to the court.
There have been protests outside the Ghana Embassy in the United States of America over the continuous detention of some 21 LGBTQ activists in the West African country.
If follows the latest decision of a court in Ghana’s Volta Region to deny them bail for the fourth time.
The court also ordered that the suspects be put into prison custody until their next appearance.
Julia Selman Ayetey, a lawyer for the defendants has told journalists that no justification was given for their continuous detention.
The Ho Circuit Court has today, June 8th, denied bail for the 21, on the bases that, the High Court had already denied them bail on June 1. This brings to 3, the number of bail denials. In the meantime, they are being sent to prison. PC: @edemrobbypic.twitter.com/AyoY3SVCid
— LGBT+ Rights Ghana (@LGBTRightsGhana) June 8, 2021
The decision to deny them bail comes days after the UN demanded their release, arguing that it is an infringement on international human rights.
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The UN also said their detention also amounted to discriminated since it is based on their supposed sexual orientation.
#Ghana 🇬🇭: UN human rights experts condemn arbitrary arrest of #LGBT human rights defenders, urge their release. “All evidence available points to the fact that they were detained while peacefully exercising their rights to freedom of expression, peaceful assembly & association.” pic.twitter.com/oCa08FLdja
The 16 women and five men were told to reappear in court on June 16 for their next hearing. Some were seen weeping after the ruling in the south-eastern city of Ho.
A group of over 100 Ghanaian feminists have announced their solidarity with “LGBT+ Rights Ghana and queer and transgender Ghanaians everywhere.”
Members of the LGBT+ community in Ghana have come under serious attack following news of the commissioning of an office and work space for them in Ghana’s capital Accra.
Ghana is a highly conservative and religious nation, which has driven support for anti-LGBT+ activities.
But with a surge in attempts to resist the acceptability of the LGBT+community in Ghana, the group of Ghanaian feminists wrote a statement “to show the community that you are not alone.”
The feminists who signed the statement said they “hope this statement can help other Ghanaians who feel supportive know that they do not have to be cowed by the violent rhetoric of the government, the press, and the religious sector.”
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“The violence directed at the community in the wake of their office launch demonstrates the vitriolic conditions under which queer Ghanaians live and why such a community space is needed,” the statement added.
The feminists also expressed their rejection of “the current onslaught of religious, media, and state violence meted out against queer and transgender people, who are simply asserting their God-given right to exist with dignity and safety.”
According to the statement the “backlash against LGBT+ Rights Ghana follows a trend of moral panic led by the media, religious groups, and political figures. Whenever queer Ghanaians demand rights, respect, and safety in our own country, these leaders use the guise of morality and concern to push a violent agenda.”
Their agenda is harmful to queer and trans Ghanaians, and it ultimately seeks to control how all Ghanaians live, regardless of their sexuality. We are already witnessing the toll these attacks take on people’s lives.
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As a result of the recent media frenzy, many LGBT+ persons are facing increasing threats of violence online, at work and in their homes. Community members have been threatened with evictions, forced marriage and employment termination.”
The over 100 Ghanaian Feminists said they “believe that the patriarchal and colonial constructions of gender and sexuality that shape social expectations and norms not only hurt the LGBT+ community, but continue to keep other marginalized groups–including poor women, sex workers, people with dreadlocs, amongst others–oppressed and constantly policed.
We align our political perspective with a radical vision of freedom and justice for all people in Ghana, which is also enshrined in our Constitution.”
“Of the undersigned, some of us identify as LGBT+, and others identify differently. Our genders are wide-ranging, our geographic locations are in Ghana and its vast Diaspora, and our life experiences are diverse.
What binds us is a shared vision for the freedom and liberation of all people, particularly those who are most marginalised in our communities. We unapologetically and unreservedly stand in support of LGBT+ people to live with dignity and under safe conditions in Ghana,” it added.
The statement also called “on allies to do the work of speaking up for queer and trans people as they are subjected to violence by the state, religious institutions and the public.”
Here are the names of the feminists who signed the statement:
Anima Adjepong, PhD, USA
Nana Yaa Agyepong, Ghana
Shakia Asamoah, USA
Akua Gyamerah, DrPh, USA
M. A. Marfo, Young Feminists Collective, Ghana
Wunpini Mohammed, PhD, USA
Rita Nketiah, PhD, Canada
Nana Darkoa Sekyiamah, Ghana
Abena Benewaa Fosu, Ghana
Malaika Aryee-Boi, Ghana
Shelia Adufutse, Ghana
Abena Awuku, Netherlands
Raphaela M.A. Rockson, Ghana
Fatima B. Derby, Ghana
Godfried Asante, PhD, San Diego State University, USA
Akosua Hanson, Ghana
Abena Darko, Ghana
Joseph Ewoodzie, PhD, Davidson College, USA
Amma Dodi, USA
Johlyn Fallah, UK
Sylvia Bawa, PhD, York University, Canada
Nobiana Dodi, USA
Adwoa Asante, Ghanafeminism.com USA
Makafui Ahorney, Ghana
Sayidatu Mariam Ibrahim, University of Ghana, Ghana
Ama Amponsah, Canada
Elvina Quaison, Ghana
Christine Hanson, SOH, Ghana
Kafui Offori, Ghana
Portia Asantewaa Duah, Feminist, Ghana
Ria Boss, Ghana
Adoley Pappoe, Israel
Adaeze Williams, Nigeria
Salma Shanni, Ghana
Tracy N. K. Owoo, Ghana
Debbie Frempong, USA
Emma Dodi, USA
Maame Akua Marfo, Ghana
Debbie Owusu-Akyeeah, Canadian Center for Gender and Sexual Diversity, Canada
Portia Asantewaa Duah, Videographer, Ghana
Ismael Montana, PhD, Northern Illinois University, USA
Shone Edem, Key Watch Ghana, Ghana
Wisdom, Solace Initiative , Ghana
Alliance for Equality and Diversity (AfED), Ghana
Kwame Edwin Out, PhD, University of Virginia, USA
Emmanuel Owusu-Bonsu, FOKN Bois / Wanlov the Kubolor, Ghana
Rose Afriyie, USA
Yasmin Fuseini-Codjoe, USA
Ewurabena S. Hutchful, USA
Jeanne Barbara Debre, Ghana
Selasie Dotse, USA
Nana Yankah, Esq., Shia Travel Group, LLC, USA
Akua Agyen, USA
Amma Gyamfowa, Canada
Keya Prempeh, Canada
Phillip Adu, Canada
Chris Akyah, USA
Olivet Aggrey-Fynn Makiava , USA
Madonna Kendona, Accra, Ghana
Kofi Ofosu, PHD, University of Texas at Austin, USA
Elfreda Tetteh, Germany
Betty Esi Awuku, The Netherlands
Malaka Grant, South Africa
Serena Dankwa, University of Bern, Switzerland
Yvette Tetteh, Pure and Just Company, Ghana
Jessica Longdon, United Kingdom
Ayesha Harruna Attah, Senegal
Dshamilja Adeifio, University of Teacher Training, Switzerland
Maame Akua Marfo, Ghana
Sefakor Agbesi, Germany
Nnenna Onuoha, Germany
Kuukuwa Manful, U.K.
Teki Martei, Ghana
Panji Anoff, Pidgen Music, Ghana
Selinam Setranah, Ghana
Naa Oyo S. Quartey Papafio, Switzerland
Anita Enyonam Kwaku (Naa Busuafi), Afed, Ghana
Gabriella Rockson, Ghana
Hauwa Uthman, Ghana
Sel Kofiga, The Slum Studio, Ghana
Daniela Gyeabour, Canada
Germaine Bombande, Ghana
Esinam Agbeyaka, Canada
Nana Akua Amoafoa Mensah , Ghana
Owiredua Akrofi, UK
Nana Aba Armoo-Daniels, USA
Dorcas Amoah, Brooklyn, NY
Owiredua Akrofi, UK
Dorothy L. Hammond, University of Ghana, Ghana
Kinna Likimani, Ghana
Tawakalitu Braimah, Women in AI, France
Nii Kotei Nikoi, PhD, USA
Aseye Afi-Djangmah, Ghana
Naa Korkoi, Ghana
Afia Kwakyewaa Owusu-Nyantakyi, Ghana
Fouzia Alhassan, Ghana
Justice Okai-Allotey, Humanist Association of Ghana, Ghana
Caren Akoto-Adade, Ghana
Angela Otoo, Drama Queens, Ghana
Jacob Alhassan, Canada
Prof. Senam Okudzeto, Director Art in Social Structures, Switzerland
Franka Hagan, Ghana
For inquiries about this statement, please contact Dr. Anima Adjepong at adjepoaa@ucmail.uc.edu
There is public uproar over the establishment of an office in the Ghanaian capital Accra, for the LGBT community.
It follows viral photographs of the commissioning of the office and it’s fundraising programme attended by some diplomats.
The presence of the diplomats including Australian High Commissioner Gregory Andrews has fuelled speculations about their support for the activities of the LGBT group.
The National Coalition for Proper Human Sexual Rights and Family Values, a civil society group in Ghana is demanding that the offices are shutdown.
Its Executive Secretary Moses Foh-Amoaning argued that LGBT rights are not recognized under Ghana’s human rights laws.
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“The presidency, the ministry of foreign Affairs and the IGP have every right to investigate that office to close it down immediately and arrest and prosecute those people involved in it,” he said.
Mr Foh-Amoaning hinted that his group will push further against activities of the LGBT community in Ghana.
“We will put the appropriate petitions before Parliament for the immediate passage of a comprehensive legislation and then we will prohibit their motion” he indicated.
Australia supports #HumanRights and rejects discrimination and hate-based abuse and violence. We have laws to protect people from discrimination and against hateful speech and abuse.
But in a sharp rebuttal, the LGBT group has condemned the demand for the closure of its office.
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“LGBT+ Rights Ghana has an irrevocable right to exist as a recognized entity and movement entitled to all the rights and protections guaranteed under Ghana’s 1992 constitution.
We have the rights as Ghanaians to live in peace, join groups, be protected from harm and have our privacy respected.
We are well aware of the National Coalition for Proper Human Sexual Rights and Family Values aims and we strongly condemn their plans to sow discord and incite violence against an oppressed minority group like ours,” it said in a statement.
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[1], 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.
4.0. CONCLUSION
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)
kawalala@outlook.com makhumbomunthali16@gmail.com
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