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Malawi Constitutional Court considers LGBTQ, intersex rights cases

Homosexuality remains criminalized in African country

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(Bigstock photo)

Malawi’s LGBTQ and intersex community is awaiting for the outcome of two cases currently before the Constitutional Court that could see the legalization of same-sex sexual relations in the country.

The Constitutional Court is currently considering two cases that Wim Akster, a Dutch national, and Jana Gonani, a local transgender woman from Mangochi, brought in order to acknowledge the rights of the LGBTQ and intersex community.

The Constitutional Court on Monday began to hear arguments brought in by the duo’s lawyers as well as state prosecutors. The cases have been adjourned to Aug. 28.

Several religious leaders ā€” including Muslim and Christian ā€” as well as government officials took to the streets of Blantyre, where the cases are being heard, before the hearings began and demonstrated against the legalization of same-sex marriages.

Three local LGBTQ and intersex rights activists during a Zoom meeting that Victor Mukasa, a Malawian human rights activist organized, condemned the demonstrations that were still taking place on Tuesday. The activists said they were sending the wrong narrative to the general public.

“Do they really understand the outcry of LGBT people? We are trying to have an inclusive environment. All these demonstrations have caused panic because all of the LGBT community in Malawi has been pushed back, way back to the primitive laws where they cannot now access amenities. So, my worry now is whatever is happening right now has the hand of the government behind it,” said Solum Ntogolo, a program officer for the Center for Development of People.

Eric Sambisa, director of Nyasa Rainbow Alliance, noted the Malawi Human Rights Commission and other human rights organizations remain silent. He also said LGBTQ and intersex Malawians cannot seek protection in the country and pointed out even the country’s media is against them.Ā 

“We don’t have any funding to inform the public about this case because the case before the court is not about the legalization of same-sex marriages but about human rights issues, being accorded the same rights like every citizen,” said Sambisa. “Furthermore, we are going through a difficult time because accessing social amenities is now very difficult. Even the police are not attending to our cases. Our offices were ransacked last month by unknown assailants and the police are not doing anything even us activists we are being attacked.” 

Ousman Kennedy, a lawyer and human rights activist, said he only wanted to comment on the facts presented in the cases.

“We can’t comment on the case itself but I will comment on the facts,” said Kennedy. “The first case is about a trans woman who was arrested in 2021 September in Mangocha. She went through an unconsented genital verification exercise by a male officer in Mangocha. She was also placed in a male cell and sent to a hospital to confirm whether she was mentally challenged as identifying as trans was a sign of insanity in the eyes of the police and the second case is about acknowledging the rights of the LGBTQ+ community. So, it’s about constitutional violation because the constitution guarantees the right of liberty to everyone.”Ā 

“Moreover, what happens between two people in their personal or private space should not be the business of the state,” he added. “The state has serious issues to deal with such as corruption and other pertinent issues like the fuel crisis, not dealing with things that concern the general public. What is happening to the LGBTQ+ community in Malawi is unconstitutional.” 

Kennedy also said the demonstrations that have been taking place show the government is against the LGBTQ and intersex community.

“We were surprised to see the Information Minister being part of the religious demonstrations what kind of message is it sending to the people? So to us, the government is supporting these religious leaders,” he said.

Malawian law currently criminalizes consensual same-sex sexual relations with up to 14 years in prison.

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Africa

Lesbian South African MP named to country’s new Cabinet

Steve Letsike won a seat in the National Assembly on May 29

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Steve Letsike (Photo courtesy of Steve Letsike)

South African President Cyril Ramaphosa on Sunday appointed lesbian MP Steve Letsike to his Cabinet.

Letsike, founder of Access Chapter 2, a South African advocacy group who is a member of the African National Congress that Ramaphosa leads, will be the country’s deputy minister of women, youth, and people with disabilities.

Letsike won a seat in the South African National Assembly in national and provincial elections that took place on May 29.

The ANC lost its parliamentary majority that it had had since Nelson Mandela in 1994 won the South African presidency in the countryā€™s first post-apartheid elections. Ramaphosa on Sunday announced Letsike and other new Cabinet members after the ANC and nine other parties agreed to form a National Unity Government.

The Washington Blade has reached out to Letsike for comment.

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Congolese justice minister orders prosecutor general to arrest LGBTQ allies

Constant Mutamba issued directive on June 15, implementation unclear

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Congolese Justice Minister Constant Mutamba (Photo courtesy of Mutamba's X account)

Congolese Justice Minister Constant Mutamba has instructed his country’s prosecutor general to arrest LGBTQ allies.

The newly appointed justice minister in a June 15 communique said the prosecutor general should initiate legal proceedings against people who advocate for the LGBTQ community in Congo.

Although same-sex marriages are constitutionally prohibited, there is currently no law that criminalizes consensual same-sex sexual relations. The communique has raised a lot of eyebrows from social and LGBTQ activists who are asking on what grounds Mutamba issued the communique.

“He could have started by initiating a bill in this direction, but in the current Congolese legislation he is missing the point,” said Jean Claude Katende, a Congolese human rights activist who is the president of the African Association of Human Rights. “If he wants to repress homosexuals, he must initiate a law which must make this behavior an offense and have it punished. He will be arrested for complicity in arbitrary arrests. The constitution is clear, no one can be prosecuted for an act which does not constitute an offense.” 

Khelver Hermano, a Congolese social commentator, said the law should not be interpreted based on one person’s emotions. 

“LGBT marriage is already not applied in the DRC but the minister wants to incarcerate those who do it informally without a legal basis,” said Hermano. “The law is not interpreted according to our will.” 

“Does the penal code in the DRC recognize polygamy? Why don’t we arrest all these known polygamists?” asked Hermano. “Just as polygamists are not prosecuted, we cannot do so against LGBT people.”Ā 

Many Congolese people, however, have welcomed the communique, arguing same-sex relations are un-African and unorthodox.

Article 172 of the country’s penal code states a person “who commits a moral crime by exciting, facilitating or promoting to satisfy the passions of others, debauchery or the corruption of persons of either sex under or apparently under the age of 21 years shall be punishable by a prison term of three months to five years or a fine.” Article 176 says a person “who engages in activities against public decency shall be punishable by a prison term of eight days to three years and/or a fine.”

Although not entirely applicable, the prosecutor general can use these two penal code articles to initiate the arrests ā€” the country in recent years has seen some arrests of LGBTQ people.

The June 15 communique is not the first time Mutamba has come out against the LGBTQ community. 

Mutamba earlier this year introduced a bill that would criminalize acts of homosexuality. The proposal received widespread support, particularly on social media where many Congolese people described it as a turning point for the country and for the continent at large.

Although parliament has not formally debated the bill, activists are concerned it will pass without many major objections because most MPs have previously said they do not support the LGBTQ community. It remains unclear how the prosecutor general will executive Mutamba’s communique.

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Prominent South African activist elected to country’s parliament

Steve Letsike founded Access Chapter 2

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Steve Letsike (Photo courtesy of Steve Letsike)

A prominent South African LGBTQ activist has won a seat in the country’s parliament.

Steve Letsike, a lesbian woman who founded Access Chapter 2, a South African advocacy group, is a member of the African National Congress. She is also part of the ANC’s National Executive Committee that determines the party’s direction.

Letsike won a seat in the South African National Assembly in national and provincial elections that took place on May 29.

The ANC lost its parliamentary majority that it had had since Nelson Mandela in 1994 won the South African presidency in the country’s first post-apartheid elections. MPs earlier this month re-elected President Cyril Ramaphosa after the ANC invited the Democratic Alliance and other parties to form a Government of National Unity.

Letsike in a statement to the Washington Blade described her election as “a milestone for the people of South Africa, and also affirmative of our party’s posture that is inclusive and intention to transformation agenda.”

“I am not in parliament for myself but the people that trusted the ANC to send individuals that will put people first,” said Letsike. “In that cohort that includes the LGBTI people like myself. Rooted in the teaching of a just society, that seeks equality and believes in the rule of law. That demand on developmental agenda from a queer lens and clear priorities of the people is important.” 

“I am delighted by this task, trust and hope for our people,” she added.

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