ON Friday, Malawi’s Constitutional Court dismissed a high-profile case brought by two applicants seeking to legalise same-sex relationships. The ruling was welcomed by state lawyers, while lawyers for the applicants expressed their disappointment.
The case was initiated by Jan Willem Akster from the Netherlands and a Malawian transgender man, Jana Gonani, following their arrest in 2021. Akster faces nine charges of sexual abuse and sodomy, while Gonani is charged with unnatural offenses. They argued that Malawi’s laws violated their fundamental rights, including privacy and dignity.
However, Judges Joseph Chigona, Vikochi Chima, and Chimbizgani Kacheche rejected their arguments. Chigona stated that the applicants failed to demonstrate how the country’s laws discriminated against homosexuals.
Chigona also highlighted that Akster could not prove that Malawi’s laws infringed on his right to health. ‘The first applicant was asked in cross-examination if he had ever accessed a public hospital and replied that he had gone to Zomba Central Hospital after a car accident,’ Chigona said. ‘He was not asked about his sexual orientation before receiving medical assistance, and he was well-treated. His only complaint was about spiders in the ward.’
Additionally, the court dismissed claims that Malawi police violated Gonani’s right to privacy when they ordered him to undress to confirm his transgender status. ‘By Section 24 of the Criminal Procedure and Evidence Code, police are empowered to search a suspect reasonably suspected of committing a particular offence,’ Chigona explained. ‘The search only extends as reasonably required for discovering items related to the offence.’
The delivery of the judgment, which lasted over six hours, was attended by minority rights activists and religious leaders. Michael Kaiyatsa of the Centre for Human Rights and Rehabilitation expressed dissatisfaction with the ruling but reserved further comments until reviewing the written judgment.
Defence attorney Bob Chimkango acknowledged the thorough process but disagreed with the judgment. ‘We are satisfied with the process, but we need to analyse the 135-page document before advising our client,’ VOA reported him as saying.
Frank Namangale, spokesperson for the Ministry of Justice, expressed the government’s approval of the ruling.
Same-sex marriages remain a contentious issue in Malawi. In July 2023, religious leaders led nationwide protests against the potential legalisation of same-sex marriage. Friday’s judgment upholds homosexuality as an offence in Malawi, punishable by a maximum prison sentence of 14 years.
The Constitutional Court noted that the applicants could seek legislative changes if dissatisfied with the judgment.
