|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: 4 January 2011
Document number: A/HRC/16/4
SOGIESC issues during Malawi’s 1st UPR review
I. SOGIESC issues/recommendations identified by NGOs
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.
II. Excerpts on SOGIESC issues from the national report
III. Excerpts on SOGIESC issues by UN agencies
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.
IV. References to SOGIESC issues during the Working Group 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.
45. France […] then referred to the criminal prosecution of persons who had engaged in same-sex relations.
49. Finally, Canada was pleased that a presidential pardon was granted to the same-sex couple handed a 14-year sentence.
50. Germany […] also asked if there were any plans to change the legal framework with the aim of ending discrimination against citizens with same-sex orientation.
52. [Hungary]. 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.
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 was pleased to learn about the pardon granted by the President to a homosexual couple sentenced to imprisonment.
64. The United Kingdom […] 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.
67. 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.
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.
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 expressed concern about provisions in the Penal Code authorizing the prosecution and punishment of people solely for their sexual orientation or gender identity.
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.
V. Conclusions and/or recommendations
Malawi noted the following recommendations:
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).