Is it right to continue keeping Malawi’s gay couple in custody?

The story of suspected gay couple, Tiwonge Chimbalanga and Steven Monjeza, continues to grab headlines both in the local and international media.

The latest development took place on March 22 when Blantyre Magistrate court ruled that the two have a case to answer and must defend themselves.

Since the case started after their arrest on December 28 2009, there has been a lot of international support from both gay activists like Uk based OutRage! and non-gay human rights groups.

Just a day before the ruling, Amnesty International, one of the world’s largest human rights group adopted the two and declared them ‘prisoners of conscience’. Donors too have extended their support towards the gays.

But given that gay practice in Malawi is illegal according to sections 153 and 156 of the Penal Code, why is there so much pressure from international human rights groups.

Donors too have shown their support for the gays. Africa Development Bank Resident Representative in Malawi, Frank Kufakwandi, speaking in his capacity as chairperson of the Common Approach to Budgetary Support group of donor countries said that the way the case has been handled it has raised a lot of international concern.

Why have donors come in the open to warn authorities on the matter?

Denied bail

Popular belief and simplistic thinking would want us believe that the reason why there is a lot of international support for the gays is because these human rights groups or donors have no respect for our laws since they are our benefactors.

It is indeed easy to view international support for the gays as a careless attempt by the west to undermine our sovereignty by taking advantage of the arrested gay couple to impose their alien cultural practices on Malawi.

However, such thinking is misplaced and lacks any logical coherence as regards the gay incident. In fact, attempts by pro-gay activists such as Peter Tatchel of OutRage! and British millionaire Sir Peter Maxwell Davis to pressure the Scottish government to cut aid to Malawi have failed.

On March 27, Malawi News carried a story to the extent that the Scottish Government has refused to yield to calls by pro-gay activists to review or cut aid to Malawi.

Rather, the reason why there is all this noise for the gays is the cruel manner in which the two have been treated especially by denying them bail and subjecting them to anal examination that have attracted and generated all this sympathy.

Surely, reasons advanced by the court for not granting the two bail are baseless. The court said it denied them bail because it fears for their personal safety as people may exact mob justice on them due to resentment since homosexuality is taboo in the Malawian culture.

It is true that homosexuality is a taboo and anyone known to be a gay is resented and stigmatised. However, whether such resentment or stigma can come to a point where it can boil to violence is obviously an exaggeration.

Even in the event that there was the possibility of people beating them up after being released on bail there are options the court could have used to avoid the violence. Such bail conditions have used by various courts before in Malawi.

One of such options would be to give them bail with the condition that they should change area of residence once they are released and go on to a new place where they are not known. This has happened before without any problems.

The maximum sentence for homosexuality according to the penal code is imprisonment for a period of between five and fourteen years. But there are some cases whose maximum sentence is life imprisonment or death penalty but whose suspects have been granted bail.

For example, the case of former vice president Cassim Chilumpha who was charged with treason, a crime that carries a death sentence if convicted. The suspect Chilumpha was granted bail and is still on bail since 2005.

Another good example is the case involving the first Nachipanti suspects. In 2007, Ndirande police arrested three local chiefs on suspicion that they were the ones behind the gruesome mysterious murders in the township and were charged with murder counts.

They too were facing death penalty or life imprisonment, however, the magistrate court in Machinjiri released them on bail until hearing of the case commenced.

The suspects were eventually acquitted but they too were facing the possibility of mob justice considering that emotions were high in the township because of the gruesomeness of murders.

But still the court granted them bail and ordered them not to return to the township for fear of violence. This is what this court should do as well.

So why not Chimbalanga and Monjeza?

It is difficult to understand the reasoning of the court at the moment. Government has not come out clearly on the matter except what Deputy Finance minister, Frazor Nohoria, said when Kafakwandi criticised government.

Nohoria said the gay issue is a tricky one so much that there is need for extensive consultations to be done before a final decision is made. Unfortunately his response was not particularly addressing the case at hand rather on gay practice in general

The law says a suspect is considered innocent until proved otherwise. Chimbalanga and Monjeza too being suspects are innocent until the court declares them guilty or not guilty of the crimes they are charged with.

At the time the court passed its judgment that they have a case to answer on March 22, they had spent 84 days behind bars. The story about the inhuman conditions in our prisons has been told several times and does not need to be repeated.

Prisoners live in conditions characterized by hunger as they eat one meal per day, sodomy, unchecked spread of contagious diseases scabies and TB being rating the highest, just to mention a few.

Most of the inmates who are in prison are hardcore criminals convicted of rape, murder, armed robbery and you name it. Recently police made a statement that prisons are no longer places where prisoners get reformed.

Southern Region Police spokesperson Dave Chingwalu said the prison is poisoning petty criminals into hardcore ones who after being released become armed robbers.

Is this the place where we want individuals who have not been convicted belong? Aren’t we turning Chimbalanga and Monjeza into worse human beings by keeping them there? Further, one of the problems in prisons has been congestion. By keeping the two in prison aren’t we creating unnecessary congestion in an already crowded place?

Prejudice

There is reason to believe that this case has been prejudiced that is why Chimbalanga and Monjeza are being treated with a less-kind attitude buy the courts.

There is no question that the two did a silly thing to stage a public engagement ceremony. At a traditional engagement patrons celebrate with the bride and groom to be by giving them money and gifts.

But on this one, stunned patrons seeing a man engaging with another man, a clear cultural taboo, turned on their backs and scorned the bride and groom.

Since then a strong rumour has been circulating that the two went all the way to engage in public because they had been encouraged by an organised group of gays who guaranteed them moral, material and most importantly, legal support.

And true to this speculation, Centre for the Development of People CEDEP came in the open and offered to sponsor lawyers for Chimbalanga and Monjeza.

It is said, gays in the country are trying to taste the waters. It is difficult to ascertain the truth of these statements but obviously its a theory that has been making rounds around this case.

Such rumours may also have worked to the disadvantage of Chimbalanga and Monjeza as the court might also be looking at an opportunity to make an example of on the gays and make a statement on the fact that gay practice is unlawful in the country.

Cedep, a human rights group involved in the fight against HIV/Aids has inclinations towards gay activities. They have conducted research on gay practice in the country and concluded that there are over 10,000 gays in the country but are in hiding because of fear.

Crackdown

Since the arrest of the two gays, there has been a crackdown of some kind on gays. Suspected gays have been living in fear of being arrested. Southern Region Police spokesperson Davie Chingwalu recently told the press that police were zeroing in on suspected gays who are in high offices.

What has caused this stern warning from the police has been increasing reports in the media of suspected gays sodomising destitute boys in the streets of Blantyre and Lilongwe.

Since the case started two people have arrested for sodomy. One of them, Davis Mpanda, a coach for a junior football team in Ndirande, Davis Highlanders was arrested and convicted.

The Machinjiri Magistrate court handed Davis, a first time offender, ten years imprisonment after being found guilty of baggery and canal knowledge with an underage kid. The kid fell sick and sperms were pumped from his anus by doctors.

Another man Tony Chirwa of Chirimba has also been convicted of sodomy and is awaiting sentencing at Blantyre magistrate court. Such increased cases of sodomy only serve to militate against homosexuality because the people involved in sodomy are homosexuals.

Most victims of sodomy are poor kids who are forced into these acts in return for favours because of poverty. These kids instead experiment sodomy on other poor kids, so on and so forth in the end, homosexuality is spreading in the country.

Most of the homosexuals are found in lakeshore areas of Nkhata-Bay, Salima, Mangochi because they are in constant contact with western tourists who pay them money in return for anal sex gratification. Most of these young men are married but yield to homosexuality as a means of raising an easy income for their own survival.

It is a vicious cycle of homosexuality, poverty and HIV/Aids. Most of these boys think anal sex does not transmit HIV/Aids. In the end they get infected and become carrier and infect their unsuspecting wives at home.

This is why there is need to either recognize gay practice and develop programmes for HIV/Aids control in the national HIV/Aids prevention programme that includes homosexuality. Or ban it altogether but sensitize those who practice it of the inherent dangers of infection.

Arguments against Homosexuality

Unfortunately the only sound argument for recognizing gay practice is in attempt to level the HIV/Aids prevention equation. Beyond that there does seem any sound argument to justify homosexuality.

It has been argued that homosexuality is illegal based on culture and the order of nature as God created man and woman to give each other sexual gratification. On this account, it is difficult for anyone to justify gay practice.

The bible which has inspired many constitutions and laws in the world at several points, does not condone same sex marriages. It is similar to committing murder. To kill another person is unlawful in the bible but people kill each other but that does not mean killing can be justified.

In similar fashion although there is homosexuality it does mean that it is right to practice homosexuality. Further although those who practice homosexuality claim it is a natural phenomena, I beg to differ.

Had it been a natural phenomena then since sexual attraction is natural to all animals, then why is it that wild animals do not get attracted male to male or female to female. It is becasue that is not the order of nature. It is unnatural. Homosexuality therefore is unnatural.

But homosexuals being human beings also deserve to be treated equally as the law says. If they are entitled to bail, it should be granted because it is their right and because that is what the law says. They must be given a fair trial.