|For a summary of Malawi’s review at the second cycle please click here.|
9th UPR session
Date of review: 1 November 2010
Date of report adoption: 16 March 2011
Report of the Working Group: A/HRC/16/4
Recommendations made: Decriminalise homosexuality; amend and/or derogate all legal provisions, including customary law, which result in discrimination on the basis of sexual orientation and gender identity; put in place a moratorium on convictions for same-sex relationships; release immediately and unconditionally all persons deprived of their liberty for only this reason; introduce policies aimed at ending discrimination against LGBT people; allow the registration of NGOs that defend matters of sexual orientation and gender identity without discrimination.
Status of recommendations: Rejected.
I. Key issues/ recommendations identified by NGOs
- Commend decision of President of Malawi to pardon two persons convicted under laws prohibiting consensual same-sex conduct;
- Recommend repeal of these provisions, as well as measures to combat hate crimes on grounds of sexual orientation and gender identity, sensitivity training for police and public officials, and protection of the right of NGOs to register and advocate on issues of sexual orientation and gender identity without discrimination.
II. Excerpts from input reports
Compilation of UN information
II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
B. Implementation of international human rights obligations
1. Equality and non-discrimination
19. In May 2010, the United Nations High Commissioner for Human Rights stated that the detention, prosecution and sentencing to 14 years imprisonment with hard labour of a Malawian couple based on their sexual orientation, which was imposed by a court in application of the penal code, was discriminatory and set an alarming precedent. On 29 May 2010, the Secretary-General applauded the decision announced by the President of Malawi to pardon the couple.
Summary of stakeholder information
II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
B. Implementation of international human rights obligations
1. Equality and non-discrimination
11. JS3 recommended that Malawi outlaw homophobia and publication of anti-gay propaganda and hate speech. CHRR further recommended that Malawi end incitement to discrimination, hostility or violence against individuals on the basis of their sexual orientation.
12. The Centre for the Development of People (CDP) reported that the Malawi Government through the Ministry of Information and Civic Education issued a press release condemning homosexuality and organizations fighting for the rights of MSM (men having sex with men). This homophobia had also reportedly been propagated by the media which had demonized gay issues.
III. References and recommendations made during the UPR Working Group
Presentation of the State under review
39. In response to advance questions raised by Denmark, the Czech Republic, the United Kingdom, Norway and the Netherlands regarding homophobia, Malawi stated that it had no plans to legalize homosexuality. The wishes of the people of Malawi in this regard should be respected. It noted that there was no international consensus on gay rights or on the right of gay persons to marry. Malawi should not be unduly singled out and unnecessarily pressured to legalize homosexuality. Malawi recalled that a resolution on gay rights considered for adoption by the United Nations in 2008 had been defeated.
40. Responding to an advance question raised by Sweden regarding non-discrimination on the basis of sexual orientation, Malawi stated that there was no homophobia or incitement against gay people. The law simply outlawed unnatural acts, which could even be committed in a sexual relationship between a man and a woman.
Interactive dialogue and responses by the State under review
45. France […] referred to the criminal prosecution of persons who had engaged in same-sex relations. France requested information about measures taken to implement recommendations of the Committee on the Elimination of Discrimination against Women.
49. Canada commended Malawi for its sustained commitment toward promoting respect for human rights, gender equality and the rule of law, evidenced by the implementation of anti-corruption measures, public sector reforms, and of a number of programmes to address challenges in areas such as food production, primary education and HIV/AIDS. It also commended Malawi’s decision to be one of the first countries to ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and to sign the SADC Protocol on Gender and Development. Canada also congratulated Malawi on working with civil society to advance women’s rights through the 50/50 campaign in 2009. Finally, Canada was pleased that a presidential pardon was granted to the same-sex couple handed a 14-year sentence. Canada was concerned, however, at the prevalence of violence against women and schoolgirls and at the trafficking of women and children for sexual exploitation or child labour.
50. Germany […] asked if there were any plans to change the legal framework with the aim of ending discrimination against citizens with same-sex orientation. Germany made a recommendation.
52. Hungary noted with satisfaction that Malawi had prioritized several aspects of human rights in the context of democracy and good governance, but was concerned about discriminatory laws and stereotypes that continued to hamper women in various areas. […] Issues related to freedom of expression and the rights of lesbian, gay, bisexual and transgender (LGBT) persons, as well as refugees and asylum seekers, were also still awaiting legal solutions.
57. Sweden expressed concerns at the existing discrimination based on sexual orientation. Sweden recalled Malawi’s ratification of the International Covenant on Civil and Political Rights as well as the basic principle of non-discrimination, which also underpinned the African Charter on Human and Peoples’ Rights and the Universal Declaration of Human Rights. Sweden referred to credible reports of incidents involving torture and other forms of ill treatment carried out by police officers, as well as the prevalence of impunity. It also referred to unsatisfactory living conditions in prison and requested Malawi to elaborate on its strategy to address those issues.
59. Malawi thanked all delegations that had made recommendations and stated that it would consider them seriously. On the issue of the decriminalization of same-sex marriage, Malawi emphasized that it had no law criminalizing such marriage, but a law proscribing unnatural offences. It noted Malawi’s historical background. Malawi had been a British protectorate, and when it had gained its independence, it had adopted all the laws then in force, including that regarding unnatural acts. In 1994, Malawi had adopted a new Constitution, under which a Law Commission had been established that was mandated with the task of reviewing all laws to ensure that they were consistent with the Constitution. The Law Commission was in the process of reviewing legislation. Since 2009, the Legislature had enacted more than 50 Acts of Parliament.
63. Australia welcomed the positive measures towards achieving the Millennium Development Goals. It encouraged Malawi to pursue gender equality in all areas of society, including in relation to sexual and reproductive health and the dissolution of marriages. Australia also welcomed Malawi’s interest in strengthening measures to prevent trafficking and noted that Australia has offered assistance in that area. Australia was pleased to learn about the pardon granted by the President to a homosexual couple sentenced to imprisonment. Australia made recommendations.
64. The United Kingdom inquired about the extent of the consultation with civil society in the preparation of national report and its involvement in the follow-up process. The United Kingdom shared it concerns about reports of intimidation and threats of closure of newspapers and incidents of arrest at public demonstration. It welcomed the pardon of two persons convicted of homosexual acts and urged Malawi to review its laws to ensure human rights for all without discrimination.
66. Italy […] expressed concern about homophobia and the recent detention, prosecution and sentencing to 14 years of imprisonment of a couple on the basis of sexual orientation, and welcomed the pardon granted to them. With regard to female genital mutilation, Italy noted that the practice persisted within some ethnic groups and asked whether Malawi was considering acceding to the Optional Protocol to CEDAW. It also noted with concern that children were still victims of child labour, corporal punishment and sexual abuse.
67. Austria praised Malawi’s efforts towards gender equality. However, it inquired about plans to ensure for women equal access to property and enhance the role of women. Austria commended the presidential decision to pardon two persons convicted under laws prohibiting consensual same-sex conduct, but shared its concern with regard to the existence of such laws. Austria also inquired about the two bills pending in Parliament with regard to improving access to justice, particularly for women.
68. The United States commended Malawi for progress in aligning its national legislation with some international human rights conventions, but was concerned by the criminalization of homosexual activity. It noted that it viewed the decriminalization of homosexuality as integral to the continued protection of universal human rights in Malawi, and crucial to the urgent need to fight the spread of HIV/AIDS. In this regard, the United States made a recommendation.
71. Spain made reference to the non-application of the death penalty since 1992, but noted that there were still more than 20 persons sentenced with the death penalty. Spain applauded the President’s decision to pardon two persons who had been convicted under the legislation criminalizing same-sex activities between consenting adults.
72. Switzerland commended Malawi for adopting several national policies aimed at promoting the rights and well being of children, notably in the areas of education, food security and HIV/AIDs. […] Switzerland expressed concern about provisions in the Penal Code authorizing the prosecution and punishment of people solely for their sexual orientation or gender identity. Switzerland made recommendations.
73. Luxembourg praised the establishment of the National Human Rights Commission and the encouraging presence of women in Parliament. It welcomed the recent presidential decision to pardon two people sentenced on the basis of their sexual orientation.
IV. Conclusions and/or recommendations
The following recommendations did not enjoy the support of Malawi:
105.1. Completely overhaul the legal system to ensure the compliance of the Constitution and all other domestic legislation with international human rights obligations and standards and, in this regard, amend and/or derogate all legal provisions, including customary law, which result in discrimination, especially on the basis of sexual orientation (Mexico);
105.17. Put in place a moratorium on convictions for same-sex relationships and, over time, decriminalize homosexuality in order to fully apply the principle of equality and non-discrimination among all persons (France);
105.18. Put in place effective measures to prevent discrimination, prosecution and punishment on the basis of sexual orientation or gender identity (Canada);
105.19. Reform the penal code and abolish discrimination against people based on their sexual orientation (Germany);
105.20. Fulfil its obligations under international human rights law and review its national legislation, as a matter of urgency, to decriminalize same-sex relationships and prohibit discrimination on any grounds, including sexual orientation (Sweden);
105.21. Repeal legislation discriminating against individuals on the basis of their sexual orientation or gender identity (Australia);
105.22. Review penal code provisions that discriminate against individuals on the basis of sexual orientation or gender identity, in order to ensure an end to hostility or violence against such groups (United Kingdom of Great Britain and Northern Ireland);
105.23. Review national legislation with the aim of decriminalizing homosexuality between consenting adults and prohibiting discrimination on the grounds of sexual orientation and gender identity (Italy);
105.24. Repeal legislation criminalizing homosexuality and introduce policies aimed at ending discrimination against LGBT people (Austria);
105.25. Decriminalize homosexual activity (United States of America);
105.26. Derogate legislation that criminalizes same-sex activities between consenting adults and adopt measures to combat incitement to hatred for reasons of sexual orientation or gender identity, and allow the registration of NGOs that defend matters of sexual orientation and gender identity without discrimination (Spain);
105.27. Review domestic legislation with a view to decriminalizing homosexual relations and prohibiting all forms of discrimination, in compliance with Malawi’s international commitments. Release immediately and unconditionally all persons currently deprived of their liberty only for this reason (Switzerland);
105.28. Renew its efforts to combat ongoing discrimination on a de facto and de jure basis concerning sexual orientation, and decriminalize same-sex relations (Luxembourg);
105.29. Decriminalize same-sex relations (Ireland);
105.39. On the question of the rights of sexual minorities, review laws in order to ensure that legislation is brought into line with international human rights norms (Norway).
V. Adoption of the Report
Statements by States and other stakeholders
-The United States congratulates Malawi for its commitment to the UPR process and the adoption of its final report.
The United States commends Malawi for its work in aligning its national legislation with its international human rights obligations. These are important steps in ensuring the continued protection of human rights in Malawi and related to many recommendations in the UPR Working Group report. Lamentably, we note discouraging trends in Malawian law and governance. In November, we expressed our deep concern with Malawi’s law criminalising homosexuality. Since that time, Malawi has taken the regrettable step of making this law ever more severe by criminalising lesbian relations. Criminalising homosexual relations is inconsistent with Malawi’s obligations under the International Covenant on Civil and Political Rights.
We strongly urge the government of Malawi to re-assert its commitment to protect and uphold all human rights. We are particularly conscious of the need for these protections for the most vulnerable persons in society, including members of minority groups. We recommend the Government of Malawi pursue steps to end discrimination against lesbian, gay, bisexual and transgender individuals […]. Thank you.
Action Canada for Population and Development delivered by Gift Trapence
-Mr President, distinguished members of the delegation,
On behalf of the Centre of Development of People and the Centre for Human Rights and Rehabilitation, the Malawi Civil Society Grand Coalition for Human Rights and Governance congratulates Malawi for undergoing through the Universal Periodic Review process. We also welcome Malawi’s acceptance of various recommendations that call it to prohibit discrimination against the LGBTI community as well as calls to decriminalise the same sex relationships. We believe that this is inconsistent with its own constitutional and international human rights obligations to prohibit discrimination and ensure equality for all people in its jurisdiction. Mr. President, we also regret Malawi’s decision to amend section 137 (a) of the penal code introduces in December 2010 immediately after the review in November to criminalise same sex relationships involving women. We call on Malawi to consider changing its position on these and guarantee rights for all people […] Thank you very much President.
VI. Further information
National report 1: A | C | E | F | R | S
Corrigendum 1: A | C | E | F | R | S
Compilation of UN information 2: A | C | E | F | R | S
Summary of stakeholders’ information 3: A | C | E | F | R | S
Questions submitted in advance: E only
Questions submitted in advance – Addendum 1: E only
Questions submitted in advance – Addendum 2: E only