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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 — including Muslim and Christian — 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. 

“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.” 

“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

Mauritius decriminalizes homosexuality

Country’s colonial-era sodomy law declared unconstitutional

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From left: Tim Otty, Abdool Ridwan Firaas Ah Seek and Gavin Glover (Courtesy photo)

The Mauritius Supreme Court on Wednesday declared Article 250 of the country’s penal code that criminalized consensual same-sex sexual relations unconstitutional.

The Young Queer Alliance, Egides and Rekonekte, Collectif Arc-en-Ciel and other advocacy groups over the last couple of years have fought hard to decriminalize homosexuality in the country.

Abdool Ridwan Firaas (Ryan) Ah Seek, a gay man and prominent LGBTQ activist, in October 2019 filed a lawsuit that sought to strike down the penal code. His legal team included lawyers Gavin Glover, Yanilla Moonshira and Komadhi Mardemootoo. Human Dignity Trust and the organization’s founder, Tim Otty, and Herbert Smith Freehills supported the case.

“It has been a long battle and receiving this judgment in my favor is an enormous relief,” said Seek. “From today, as a citizen and a human being, I am now free to love whoever I want without fear. Above all, it also means that the next generations can fully and freely embrace their sexuality without fear of being arrested.” 

LGBTQ Mauritians consistently face verbal harassment and even physical attacks from the community and religious sector, even though authorities rarely arrested anyone under Article 250 before the ruling.

Anjeelee Beegun of Egides and Rekonekte said the Supreme Court ruling ensures everyone’s human rights are respected, regardless of their sexual orientation.

“Today the Supreme Court finally recognized that Section 250 of the penal code violates the fundamental human rights guaranteed by the constitution,” said Beegun. “More importantly, the Supreme Court has stated in clear terms that the constitution, which is the supreme law of the land, protects us from discrimination on the basis of sexual orientation.”

Beegun further described the ruling as a historic moment for LGBTQ Mauritians, noting the penal code is a legacy from the country’s colonial past.

“We can finally break free from the shackles of a centuries’ old law which, despite being a remnant of the country’s colonial past, continued to feed into the stigma and hate against LGBTQIA+ people in present days,” said Beegun. 

“The LGBTQIA+ community in Mauritius continues to face numerous challenges, but the decriminalization of same-sex intimacy is paramount to the full inclusion of LGBTQIA+ people,” added Beegun. “This judgment is a huge leap forward in the right direction and will hopefully inspire the community to continue fighting for equality and dignity.” 

Young Queer Alliance said the existing penal code violated the constitution.

“Section 250 of the criminal code is unconstitutional and violates Section 16 of the constitution in so far as it prohibits consensual acts of sodomy between consenting male adults in private and should accordingly be read to exclude such consensual acts from the ambit of Section 250,” said the group in a social media post.

Human Dignity Trust Chief Executive Téa Braun said the ruling was long overdue.

“Another 8-year effort comes to a gloriously decisive victory for equality and justice,” said Braun. 

Collectif Arc-en-Ciel Vice President Dimitri Ah-Yu commended Seek for his endurance and perseverance in the case.

“This is an historic day for our organization and the entire LGBT community in Mauritius,” said Ah-Yu, noting Section 250 dates back to 1838. “We salute Ryan Ah Seek for his courage and the Supreme Court for choosing inclusion and human rights over conservatism and reprobation. At Collectif Arc-en-Ciel, we believe that it should be a collective responsibility to stand against discrimination and defend fundamental human rights.” 

Angola, Botswana, Mozambique and South Africa are among the other countries in southern Africa that have decriminalized consensual same-sex sexual relations. The Mauritius Supreme Court issued its ruling roughly two months after a Pan Africa ILGA conference took place in the country.

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LGBTQ rights group sues Kenya police chief over anti-gay protests

Mombasa demonstrations began after ruling allowed NGO to register

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Kenya flag (Photo by rarrarorro/Bigstock)

An advocacy group in Kenya has sued Police Inspector General Japhet Koome for allowing religious leaders and lobby organizations to hold homophobic protests whenever court rulings favor the LGBTQ community.    

Two petitioners — Mr. JM and the Center for Minority Rights and Strategic Litigation — have sued Koome in the High Court in Mombasa, the country’s second largest city, and demanded a “ban on anti-LGBTQ protests in the country.” 

The petitioners’ move is in response to recent anti-LGBTQ protests, particularly in Mombasa after last month’s Supreme Court ruling that affirmed its February decision in support of the National Gay and Lesbian Rights Commission and its ability to register as an NGO.

The controversial ruling sparked criticism from clerics, politicians and the general public. Demonstrations the two petitioners have described as gross human rights violations against the LGBTQ community followed.

An MP from the ruling party and Mohamed Ali — a celebrated investigative journalist whose anti-gay motion for the government to ban public discussion, reporting and distribution of LGBTQ content in the country passed overwhelmingly in Parliament — are among those behind the homophobic Mombasa protests.

Six LGBTQ lobby groups applauded the rulings as a “crucial shot in the arm towards LGBTQ rights” and condemned protest organizers for “mobilizing towards hatred and marginalizing others.”        

Mr. JM and CMRSL have also sued two anti-LGBTQ activists and a national lobby group dubbed the “Anti-LGBTQ Movement” that organized the demonstrations, in addition to the police official whose office authorizes street marches by issuing permits to protesters.  

“The petitioners have sought to include new amendments to the petition filed last week via the court’s online filing system and they have until Oct. 11 when the court will give directions to the hearing of the case,” a source familiar with the petition told the Washington Blade. 

To stop any future homophobic protests, the petitioners want the court to declare the LGBTQ community is also entitled to constitutional rights and freedoms without hate or discrimination just like their opposite-sex counterparts. 

They argue the anti-LGBTQ protests, characterized by incitement to violence in March and last month in response to the Supreme Court’s rulings, have led to increased cases of homophobia and threats to the lives of the queer community across the country.

The petitioners claim the “Anti-LGBTQ Movement” group has been propagating “violence, elimination and expulsion” of the queer community from the country in its relentless homophobic campaign. They further allege that organizations working with LGBTQ people have recorded “more than 100 cases of violence, forced evictions and denial of services” by landlords, employers and the public as a result of these protests. 

The petitioners also claim the protests have led to the shutting down of “more than 20 organizations and medical facilities” that provide essential HIV and STI treatment services to LGBTQ people because of security concerns.   

Mr. MJ and CMRSL in their case have included the Kenya National Commission on Human Rights, a state-funded watchdog organization, as an interested party, although it always distances itself from defending LGBTQ rights. 

The Kenyan Constitution, which only recognizes consensual opposite-sex relations, directs the KNCHR. Section 162 of the penal code criminalizes consensual same-sex sexual relations. 

This sidelining has forced the LGBTQ community to demand a representative to the KNCHR to represent their interests, such as intersex people who are represented after a landmark law that recognizes them as Kenya’s third sex, took effect in July 2022. The petitioners did not engage KNCHR before listing it as an interested party. 

The state-funded National Cohesion and Integration Commission, Amnesty International Kenya and the Kenya Human Rights Commission are among the other institutions the two petitioners have included in the case as interested parties.

Amnesty International Kenya with Irungu Houghton as its executive director on Sept. 30 held the “State of Freedoms and Rights in 2023” conference in partnership with United States International University Africa in Nairobi, the Kenyan capital. Participants demanded respect for the rights of every person, including members of the LGBTQ community.

The rights organization vowed to fight any infringement of the rights of any person or group, regardless of their gender or sexual orientation, in line with its newly launched 4-year strategic framework for 2024-2028 that will guide its human rights advocacy.

Meanwhile, some parents in one of Kenya’s all female high schools are angry after administrators suspended 18 students who allegedly engaged in what they described as lesbianism.

The students’ suspension from Cardinal Otunga Girls’ High School in the western part of the country last week has caused fury among their parents, because they are set to start taking their final high school national exams on Oct. 10. This action comes amid the government’s plans to consider a recommendation from a presidential task force on education reforms to hire imams and chaplains in schools to guide students against what they feel is the infiltration of LGBTQ practices.

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Eswatini government refuses to allow LGBTQ rights group to legally register

Supreme Court previously ruled in favor of Eswatini Sexual and Gender Minorities

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Members of the Eswatini Sexual and Gender Minorities, an LGBTQ and intersex rights group, after the Eswatini Supreme Court on May 5, 2023, heard arguments in their case in support of legally registering in the country. (Photo courtesy of Eswatini Sexual and Gender Minorities)

The Eswatini Commerce, Industry and Trade Ministry this week said it will not allow an LGBTQ rights group to register.

The country’s Supreme Court in June ruled the government must allow Eswatini Sexual and Gender Minorities to register.

The Registrar of Companies in 2019 denied the group’s request. Eswatini Sexual and Gender Minorities the following year petitioned the Supreme Court to hear their case. The Supreme Court initially ruled against the group, but it appealed the decision.

“[The] Minister of Commerce and Trade refuses to register ESGM citing the ‘Roman Dutch Law,'” said Eswatini Sexual and Gender Minorities on Thursday in a tweet to its X account. “This was after the Supreme Court ruled unanimously that the refusal to register ESGM by the registrar was unconstitutional.”

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