|For a summary of Malawi’s review at the first cycle please click here.|
22nd UPR session
Date of review: 5 May 2015
Date of report adoption: 20 July 2015
Document number: A/HRC/30/5
SOGIESC issues during Malawi’s 2nd UPR review
I. SOGIESC issues/recommendations identified by NGOs
Right to privacy
45. HRW stated that the Penal Code criminalized consensual sexual conduct between adults of the same sex and violated the right to privacy, non-discrimination and other rights under international law. JS 4 stated that the relevant provisions of the Penal Code have been referred to the Law Commission for review, but that the Law Commission was yet to take any significant action towards repealing those provisions. HRW recommended that Malawi repeal those provisions of the criminal code that criminalize consensual, adult same-sex conduct and provide adequate protection to LGBT persons. JS 4 recommended that Malawi take measures to explicitly recognise and protect against discrimination on the basis of real or perceived sexual orientation or gender identity in its laws.
Right to health
63. HRW stated that the anti-gay laws have nefarious consequences, including restricting access to health services. It recommended that Malawi ensure that the LGBT population is included in Government HIV prevention and treatment programs.
II. Excerpts on SOGIESC issues from the national report
III. Excerpts on SOGIESC issues by UN agencies
Institutional and human rights infrastructure and policy measures
11. HR Committee was concerned that the Malawi Human Rights Commission did not function independently and was not adequately funded. It was also concerned at the Commission’s reluctance to engage on lesbian, gay, bisexual, transgender and intersex (LGBTI) issues. It stated that Malawi should amend the Human Rights Commission Act to ensure that the Commission enjoyed full independence; provide the Commission with adequate resources; and establish mechanisms for the implementation of the Commission’s recommendations. Furthermore, the Commission should fully comply with its mandate and engage on all human rights issues, including those related to the rights of LGBTI persons.
Right to privacy, marriage and family life
45. HR Committee was concerned that consensual same-sex sexual activity among consenting adults was still criminalized and about reports of violence against LGBTI persons. It stated that Malawi should review its legislation so as to explicitly include sexual orientation and gender identity among the prohibited grounds of discrimination, and to repeal the provisions that criminalized homosexuality and other consensual sexual activities among adults (arts. 137 (A), 153, 154 and 156 of the Penal Code). It also stated that Malawi should prosecute the perpetrators of violence against LGBTI persons; compensate the victims; and ensure that public officials refrained from using language that might encourage such violence.
Right to health
60. HR Committee was concerned that LGBTI persons did not enjoy effective access to health services. It stated that Malawi should guarantee effective access to health services, including HIV/AIDS treatment, for LGBTI persons.
61. UNCT stated that the criminalization of consensual same sex relations, societal stigma and discrimination had a detrimental impact on the enjoyment of the right to health. LGBTI persons were often not included in public health and support initiatives, such as education programmes or the provision of disease and infection prevention and care, and were denied access to necessary information, support and services to make informed decisions and to reduce their vulnerability to HIV.
IV. References to SOGIESC issues during the Working Group review
31. Germany expressed its disappointment over the continued discrimination on the basis of sexual orientation and gender identity and the fact that there had been no reform of the legislation on refugees. Germany was also concerned about the situation in prisons and detention centres.
35. Iceland welcomed the adoption of the Marriage, Divorce and Family Relations Bill and commended Malawi on the adoption of the Gender Equality Act. It urged Malawi to repeal the provisions of the Criminal Code that criminalized consensual, adult same-sex conduct and to repeal other laws that discriminated against lesbian, gay, bisexual, transsexual and intersex persons.
50. The Netherlands welcomed the passing of the Marriage, Divorce and Family Relations Act, while noting, however, that this law also contained several discriminatory provisions that stigmatized lesbian, gay, bisexual and transsexual people and hampered the fight against HIV/AIDS.
53. The delegation emphasized that discrimination against lesbian, gay, bisexual and transsexual persons was a problem that existed not only in Malawi. However, society in Malawi needed to evolve and an informed society would be able to take a decision on this matter. There was a need for discussion and debate on the issue. However, there had not been any attempt by civil society to engage with the Government.
58. Norway commended Malawi on the adoption of legislation strengthening the legal framework for human rights protection. It noted open discussions on minority rights, action towards decriminalizing same-sex relations, and improvements in freedom of expression and the media
71. Sweden noted that Malawi had taken some steps to fulfil the gender equality pledges made in 2010 but considered that it had failed to live up to most of them. It noted that in 2010 Malawi had rejected recommendations to decriminalize same-sex conduct.
72. Switzerland recalled the concerns it had expressed during the first cycle concerning the criminalization of persons based on their sexual orientation in the Criminal Code of Malawi. […]
80. The United States of America […] was concerned at laws that criminalized consensual same-sex activity between adults and urged Malawi to ensure that its legislation respected the rights of all citizens.
88. Australia […] noted that the rights of lesbian, gay, bisexual, transsexual and intersex groups remained under pressure.
89. Austria […] noted the existence of legislation prohibiting consensual same-sex relations, the reports of
harassment and intimidation of journalists and human rights defenders, and restrictions on
the freedoms of assembly and expression.
V. Conclusions and/or recommendations
Malawi accepted the following recommendations:
110.93 Take effective measures to protect lesbian, gay, bisexual and intersex persons from violence and prosecute the perpetrators of violent attacks (Austria);
110.126 Guarantee that people of the lesbian, gay, bisexual, transgender and intersex communities have effective access to health services, including treatment for HIV/AIDS (Honduras).
Malawi noted the following recommendations:
113.13 Review and reform its national legislation with a view to eradicating all discrimination on the basis of sexual orientation and gender identity (Brazil);
113.14 Include sexual orientation and gender identity among the prohibited grounds of discrimination and repeal the provisions criminalizing homosexual relations between consenting adults (Chile);
113.15 Repeal provisions criminalizing consensual same-sex sexual conduct in order to bring the penal code in line with international human rights obligations (Germany);
113.16 Repeal all legal provisions criminalizing sexual activities between people of the same sex (Italy);
113.17 Modify the criminal code to decriminalize same-sex sexual activity between consenting adults and to criminalize all forms of sexual abuse of children, regardless of the sex of the child (United States of America);
113.18 Repeal legal provisions that criminalize homosexuality, and take all necessary measures to ensure respect for all human rights of lesbian, gay, bisexual, transgender and intersex people, including access to public health services and support initiatives, such as education programmes and the provision of disease and infection care (Slovenia);
113.19 Abrogate legislation criminalizing homosexuality, in order to fully respect the principles of equality and non-discrimination for all persons (France);
113.20 Repeal all legal provisions criminalising sexual activity between consenting adults and encourage the Malawi Human Rights Commission to include in its mandate the protection of the rights of the lesbian, gay, bisexual, transgender and intersex community (Australia);
113.21 Consolidate the policy gains into legal reforms on issues such as treatment of same-sex relations and access to information (Norway);
113.22 Ensure to lesbian, gay, bisexual, transgender and intersex persons the full enjoyment and equal conditions in terms of their human rights by repealing the rules that criminalize and stigmatize them (Argentina);
113.23 Bring its legislation in conformity with international law, by decriminalizing consensual same-sex relations between adults and by prohibiting all discrimination based on sexual orientation and gender identity (Luxembourg);
113.24 Repeal the provisions in the Criminal Code that criminalize consensual same-sex conduct, and any other legislation which discriminates on the basis of sexual orientation or gender identity, and bring its
113.25 Repeal provisions of the Malawi Criminal Code that criminalize consensual, adult same-sex conduct (sections 153, 154 and 156) and provide adequate protection to lesbian, gay, bisexual and transgender persons (Sweden);
113.26 Decriminalize homosexuality and revise sections 137A, 153, 154 and 156 of the Penal Code and revise the law on marriage, divorce and family relations in order to bring it in line with the international instruments ratified by Malawi (Switzerland);
113.27 Eliminate existing norms against homosexuality, in particular articles 137, 153, and 156 of the Penal Code (Spain); 113.28 Combat, in law and in practice, discrimination based on sexual orientation (Uruguay).