On November 5th, during a radio debate organized by two pro-LGBT groups, the government of Malawi announced that it has suspended enforcement of the country’s anti-gay laws until its National Assembly has had a chance to debate their constitutionality. The laws in question might clash with constitutional provisions that ban discrimination and guarantee that the State “recognize and protect fundamental human rights.” This suspension is the latest in a string of surprising pro-LGBT announcements and decisions by Malawian President Joyce Banda. Whether she will be able to overcome centuries of entrenched homophobia and help Malawi become one of the few African countries without anti-gay laws remains to be seen, but her political savvy and credentials in the women’s rights movement make her a fairly strong candidate.
Up until earlier this year, Malawi’s gay rights history resembled that of many other former British colonies. All of these countries’ anti-gay laws technically date back to 1860, when colonialist leaders, worried that the relative sexual freedom enjoyed by the various people they were conquering might corrupt their own colonists’ delicate sensibilities, included a section in their Indian Penal Code punishing “carnal intercourse against the order of nature,” (aka sodomy, with apologies to those of you whose delicate sensibilities had not yet been corrupted). This code became a model, and this provision a boilerplate, for penal codes all across the British Empire, including Malawi’s, which was drafted in 1930. The relevant text is in Section 153, which deals out up to fourteen years of imprisonment to anyone practicing “unnatural offenses,” including “carnal knowledge of any person against the order of nature.” The provision also shows up in spirit in Section 156, which promises five years in prison to any man exhibiting “gross indecency with another male person in public or private.” After Malawi gained independence in 1964, it retained Britain’s penal code, making it one of the thirty-five countries across Africa, Asia and the Pacific that still have some version of this 250-year-old law on the books.
Fast forward to 2010, when, having spent several centuries hanging around under the radar and contenting itself with affecting public opinion, causing police beatings and blackmail, and other subtle forms of discrimination, Section 153 reared its head in court. After meeting at church, falling in love, and holding a symbolic commitment ceremony, Steven Monjeza and Tiwonge Chimbalanga, a cis man and a trans woman, were convicted of “unnatural offenses” and sentenced to fourteen years of hard labor – a “scaring sentence,” in the words of judge Nyakwawa Usiwa-Usiwa, “so that the public . . . are not tempted to emulate this horrendous example.” The decision was condemned by regional and international human rights organizations, donor entities, other governments, and U.N. Secretary General Ban Ki-moon, who eventually convinced then-President Bingu wa Mutharika to overturn it. It’s been argued that Mutharika did this solely to save face internationally and with no intention to change the country’s policies. Support for these accusations comes from comments he made at the time, and form his actions in February of 2011, when he signed a bill criminalizing “same-sex conduct” between women in Malawi.
So far, this looks depressingly similar to situations in countries such as Uganda and Nigeria, where the Anti-Homosexuality Bill and the Same Sex Marriage Prohibition Bill, respectively, have been repeatedly shut down at the last minute thanks only to international pressure. But Mutharika’s successor, President Joyce Banda, took office last April and immediately began making sweeping reforms, firing corrupt officials, devaluing the currency, and selling the presidential jet. In May of this year, during her first state of the nation address, Banda surprised pretty much everyone by pledging to repeal the indecency and unnatural acts laws, calling it “a matter of urgency.” She disappointed activists when she failed to quickly pass an executive order, and again when, in a September interview with the Associated Press, she seemed to reneg on her promise, saying that “Malawians are not ready to deal with that right now.” But this new suspension of the laws, and the accompanying promise of a Parliamentary decision, suggest that the issue has regained a measure of the urgency Banda originally afforded it.
Of course, nothing has really happened yet. Some activists, such as South Africa’s Enoch Chilemba, don’t think anything ever will, citing what they see as “a murky mix of public, donor-friendly rhetoric and voter-friendly inaction” as a sign that Banda is “unlikely to take a potentially ‘unpopular’ gamble by repealing anti-gay laws and recognizing gay rights ahead of the polls.” There is no doubt that donor-friendliness plays a sizeable role in all of Banda’s political decisions – around 40% of Malawi’s annual budget comes from foreign aid, and the country’s lack of natural resources, and increasing reliance on tobacco exports in a falling market, suggest that this won’t change anytime soon. On top of that, Banda inherited a set of international relations disasters, taking office less than a year after the U.S. and Britain both suspended budgetary aid to Malawi following police killings of unarmed protestors and Mutharika’s expulsion of the British ambassador. Banda has launched a full-scale “diplomatic offensive” to regain funding, respect, and support from the international community. Given the world’s response to the Chimbalnga/Monjeza case and others like it, and recent, very clear statements from the US and the UK regarding gay rights equaling human rights and human rights equaling foreign aid, making those rights a stated priority is certainly a shrewd move; Banda acknowledged as much during her original address, when she referred to “traditional development partners who were uncomfortable with our bad laws.”
Whether this translates into actual action remains to be seen. But Banda’s professional and political history show a true commitment to human rights, as well as an ability to follow through on unpopular decisions. Before she got into politics, Banda was a mother of three living in Kenya, trapped in a bad marriage by financial dependence. Inspired by the country’s burgeoning women’s movement, she left her husband and started a series of successful businesses. After that, hoping to “help other women achieve financial independence and break the cycles of abuse and poverty,” she founded a school for underprivileged children, an association for aspiring businesswomen, and a leadership network for young girls, in the process becoming one of Malawi’s “most visible champions of gender equality” (and one of its most eloquent and insightful, too, as this quotation attests:)
“The women didn’t go to school when they were young because parents preferred to send their brothers, the women couldn’t access loans in their own right because the banks sought the approval of a male dependent, the women couldn’t make decisions at household level because they didn’t bring any income into the household . . . if a woman says, ‘This body can have two children,’ and the husband says, ‘You will have five,’ that is domestic violence. But there’s no way women are going to make a choice about their health or the number of children they have without economic empowerment.”
During her first political appointment, as the Minister for Gender and Community Services, she managed to push through a domestic violence prevention bill that had failed seven times in a row, and she designed and enacted several childrens’ rights platforms. She’s made a career out of understanding and combating the societal disenfranchisement of minorities. I see no reason why she wouldn’t try to do this for gay people, too. All this without mentioning the fact that she herself must have overcome countless barriers in order to work her way up from a secretarial position to being the most powerful woman in Africa. That kind of experience has to lead to an appreciation for the plight of similarly downtrodden groups, not to mention the kind of determination required to raise them up.
The approach Banda’s government is taking – forgoing an executive order in favor of a constitution-based parliamentary decision – has been criticized, for familiar and worthwhile reasons. As Chilemba says, “It is not up to the majority or the government to decide which rights people get to enjoy,” and when the rights in question involve not going to jail, enacting them quickly becomes that much more important. But from another point of view, this method is sneakily diplomatic, and might end up being more effective, and less dangerous It’s reminiscent of how Obama ended up repealing Don’t Ask Don’t Tell. After announcing his intention to get rid of it, he let Congress pass the bill and gave the military time to get ready for the transition; by the time the repeal went into effect, it was practically everyone’s decision. Similarly, Banda has put this choice in the hands of elected officials, and in the meantime, she’s suspended the laws. This not only ensures that no one will get arrested, but also leaves space for Malawian LGBT rights groups – like the Center for the Development of People and the Center for Human Rights and Rehabilitation, who organized the radio debate that framed the announcement – to, as rights activist Billy Mayaya puts it, openly educate lawmakers and citizens, and “not fight from the shadows.” This repeal isn’t real yet, but the idea is gaining real clout: the President is pulling for it, the international community backs it, the constitution very well might support it, and now the people can finally make their voices heard, too. It’s going to be an uphill battle, but this is definitely a step.