The Marriage, Divorce and Family Relations Bill of 2015 that Malawian President Peter Mutharika signed last week before traveling to the U.S. raises the minimum marriage age in his country to 18. The statute also reiterates the definition of marriage in Malawi as between a man and a woman.
“Two persons of the opposite sex who are both not below the age of eighteen years, and are of sound mind, may enter into marriage with each other,” reads the law.
The law further stipulates that “sex is determined at birth.”
“Hence sex, for purposes of marriage, will continue to be regarded as one’s sex at birth,” it reads. “Such a determination of sex at birth avoids any potential problems caused by transsexuals or persons who have undergone sex-changing surgery later in life from marrying a person who, prior to that sex-changing surgery, was of the same sex as them.”
The statute also states committing rape or other “unnatural offenses” under Section 153 of the Malawian Penal Code is grounds for a divorce. This provision says “any person who permits a male person to have carnal knowledge of him or her against nature, shall be guilty of a felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment.”
Rev. MacDonald Sembereka, national coordinator of Manerela, a group based in the Malawian capital of Lilongwe that advocates on behalf of people living with HIV/AIDS, told the Washington Blade in an email he feels the new law is a “lost opportunity” because it reinforces “the thinking in the old law” with regards to the definitions of marriage and sex.
“It is further sugarcoated in the vice that its protecting women and yet harming women who are either lesbians or trans,” added Sembereka. “This law reinforces the very existing old laws that outlaw same sex relations. In my thoughts its like what Jesus says of putting new wine in old wine skins.”
Jessica Stern, executive director of the International Gay and Lesbian Human Rights Commission, in a statement welcomed the law’s provision that raises the minimum marriage age to 18 as a way to protect women and children in the impoverished country. She nevertheless said the statute would subject LGBT Malawians to additional discrimination.
“It’s appalling that a law that attempts to address a serious human rights abuse like child and forced marriage would then also target Malawians for discrimination based on sexual orientation or gender identity,” said Stern.
Agnes Odhiambo of Human Rights Watch largely echoed Stern’s assessment.
“In passing this marriage law, Malawi’s government has itself recognized its obligation to uphold international law,” said Odhiambo in a statement. “But the provisions that discriminate on the basis of gender identity and sexual orientation flagrantly violate internationally recognized human rights, reinforcing the perception that LGBTI Malawians are second-class citizens.”
Both the International Gay and Lesbian Human Rights Commission and Robert F. Kennedy Human Rights, a Washington-based advocacy group, urged Malawian lawmakers to amend the law in order to remove provisions they contend target LGBT people.
“The homophobic provisions in an otherwise important law diminish both the credibility and significance of what should have been a positive step forward for Malawi,” said Robert F. Kennedy Human Rights President Kerry in a statement.