MALAWI: Court case drives MSM deeper underground
Lawyers for the couple allege their clients were beaten while in police custody
Lilongwe, 6 April 2010 (IRIN) - An engagement ceremony has landed a same-sex Malawian couple in jail, propelled their country into international headlines, and pushed men who have sex with men (MSM) further towards society's risky margins.
Steven Monjeza and Tiwonge Chimbalanga were arrested and charged with sodomy and indecency after their public engagement in late December 2009. The case, which has drawn international criticism of Malawi's laws, is set to begin on 6 April after a magistrate decided there was sufficient state evidence to proceed. The couple face up to 14 years in prison if they lose.
The court case - which is rare in a country where most people charged with same-sex acts plead guilty due to lack of legal representation - has sparked intense public scrutiny and police crackdowns, increasing the risk of arrest and harassment for MSM
, and decreasing their access to vital HIV prevention services.
"This case has put us in an awkward position in terms of our programming," said Gift Trapence
, director of the Centre for the Development of People (CEDEP
) a human rights organization.
"Police are more empowered to arrest people, so it is very hard for the MSM community to come to meetings. It's also become very hard even for the organization to distribute HIV/AIDS information [to them] because that will be regarded as promoting something illegal ... that's what the media and the church
and the government officials are saying."
CEDEP is one of the few organizations working to prevent HIV among MSM in a country where many believe same-sex practices to be "un-Malawian" and "un-African". In 2008 research
by the organization found that HIV prevalence among MSM was about 21 percent, almost double the national average of about 12 percent cited by UNAIDS
Unclear messages in a minefield
|Prior to this, Malawi was committed to addressing vulnerable populations in its HIV/AIDS outreach... [This case] ... set back the effort, and I do think that some of the activists have been under threat
Trapence said they had also found that more than 50 percent of MSM said they were bisexual.
"You cannot talk about mother-to-child or parent-to-child transmission when you are excluding these communities," he told IRIN/PlusNews
. "When we talk about HIV prevention, we need to take a holistic approach whereby everyone is reached, because if we start excluding some communities, the virus will still come back to us – it's a vicious cycle."
By June 2009, activists thought the government was ready to talk about HIV prevention; MSM, including prisoners
, and sex workers - another marginalised group - were written into the National HIV Prevention Strategy 2009-2013
Sex workers in Malawi are prosecuted under loitering laws, and instances of forced HIV testing of detained women have been documented in the media
According to Trapence, the prevention strategy may have been ahead of its time. "MSM were included in that document, and now one wonders why the government would want to target them with HIV/AIDS-related programmes but, on the other hand, those individuals are being arrested. We rushed to include MSM and sex workers in the national plan without looking at the legal framework."
Lawyers for Monjeza and Chimbalanga attempted to take the case before Malawi’s Constitutional Court, planning to argue that the case was in violation of sections of the Constitution
that guaranteed freedom from discrimination based on factors including race, sex, or “other status.” Had the pair won there, laws criminalizing same-sex practices would have been effectively abolished. Their application to appear before the Constitutional Court was rejected in late February 2010.
The South African Law Centre (SALC), a non-profit organization, has been assisting the Malawian legal team. Priti Patel, who works with the HIV and AIDS programme at SALC, said the court case marked a turn in activist-government relations.
"Prior to this, Malawi was committed to addressing vulnerable populations in its HIV/AIDS outreach, and getting populations to come forward to address their health needs. [This case] ... set back the effort, and I do think that some of the activists have been under threat," she told IRIN/PlusNews.
A culture of fear
"Our offices were raided by police and they took what they called 'pornographic material', but it ... was information that we use to educate MSM on HIV prevention," Trapence
said. "Some of our officers were arrested ... [which] has created fear among the organization's staff; health workers are afraid to go to communities with outreach activities."
The intense police focus on MSM, combined with the men's lack of access to the legal system, has set the stage for increased stigma, harassment and extortion. The crackdowns
have been reported on in the media.
"It’s very difficult as an organization to work under such circumstances," Trapence told IRIN/PlusNews. "Articles have been published with police saying that they are hunting for them, that they have lists of names whom they would want to arrest."
Public pushes back to international pressure
A member of the legal team, who asked to remain anonymous given the current climate, said international pressure to release the couple may have made things worse.
"In terms of influencing the government's position, it may have moved them a little bit, but in terms of popular opinion, international pressure has done quite the opposite and actually galvanized people against homosexuals," said the lawyer, who suggested that a more appropriate course would be to lobby for same-sex practices to be decriminalized.
"People who view homosexuality as being 'un-Malawian' are saying, 'Why should government just release these people if we have a law that outlaws the action allegedly committed by these people?'"
The legal team plan to return to court, but few witnesses are willing to take the stand in the couple's defence, said the legal advisor.