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Malawi’s Constitutional Court declines to legalize same-sex relationships

Binational couple brought case in 2023

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(Bigstock photo)

Human rights organizations in Malawi have criticized the country’s Constitutional Court over its June 28 ruling that declined to legalize same-sex relationships.

Wim Akster, a Dutch national, and Jana Gonani, a local transgender woman, through their lawyers last year approached the Constitutional Court over the legalization of consensual same-sex relations under the penal code, which criminalizes so-called acts of “carnal knowledge against the order of nature and gross indecency” with a maximum penalty of 14 years in prison with corporal punishment for both men and women.

The Constitutional Court heard the case and issued its ruling on June 28.

“We echo the concern voiced regarding the recent Malawi Constitutional Court ruling on consensual same-sex sexual conduct,” said U.N. Human Rights Southern Africa. “We urge the government to protect and stand up for the human rights of vulnerable groups, including LGBTQ+ persons, by ensuring domestic laws align with international obligations.” 

Khanyo Farise, Amnesty International’s deputy regional director for East and Southern Africa, described the ruling as a bitter setback for human rights in Malawi.

“The court’s decision to keep these discriminatory laws on the books is a bitter setback for human rights in Malawi. The ruling manifestly flies in the face of Malawi’s constitution, the African Charter and international human rights law, which all clearly prohibit discrimination,” said Farise. “It also makes Malawi an outlier in Southern Africa, where most countries have decriminalized consensual same-sex sexual conduct.”

Farise added “the court’s refusal to overturn these laws means LGBTI persons in Malawi will continue to face discrimination and persecution simply for who they love.” 

“In particular, this ruling translates to continued barriers in access to healthcare and other social services for LGBTI persons,” said Farise. “Amnesty International stands with all LGBTI people in Malawi, who deserve the right to live their lives with dignity and full humanity. We also demand that authorities ensure their safety in the face of threats of violence.” 

U.N. Human Rights said the provisions of the Malawian penal code that criminalize consensual same-sex sexual relations should be repealed.

“The Constitutional Court’s ruling upholding the criminalization of consensual same-sex conduct is deeply disappointing and contrary to the country’s own international human rights obligations,” it said. “The anti-gay law must be repealed and the rights of LGBTQ+ people protected.”

LGBTQ activists in Malawi say the recent surge in demonstrations and actions against the community that traditional and religious leaders have organized have raised serious concerns about the protection of human rights and the principles of equality and nondiscrimination. 

“Homophobic sentiments are leading to higher rates of mental health issues, unemployment and homelessness,” said the Nyasa Rainbow Alliance. “It takes no compromise to give people their rights. It takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.”

“Gay people are born into and belong to every society in the world,” added the group. “They are of all ages, races, and faiths. They are doctors, teachers, farmers, bankers, soldiers, athletes, and whether we know it or we acknowledge it, they are our family, our friends, and our neighbors.” 

Media reports indicate human rights organizations are considering an appeal of the ruling.

The Namibian High Court last month decriminalized consensual same-sex relations. Mauritius last year declared Article 250 of the country’s penal code that criminalized consensual same-sex sexual relations as unconstitutional following a four year legal battle that Abdool Ridwan Firaas (Ryan) Ah Seek, president of Arc-en-Ciel, the country’s largest LGBTQ rights group, initiated.

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Africa

Burkina Faso moves to criminalize homosexuality

Justice Minister Edasso Bayala made announcement on July 10

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Burkina Faso flag (Photo by rarrarorro/Bigstock)

Burkina Faso has become the latest African country to move to criminalize consensual same-sex sexual relations.

Justice Minister Edasso Bayala on July 10 after a Cabinet meeting said same-sex sexual acts and similar practices would now be prohibited and seen as a violation of the law.

Unlike other countries where lawmakers have to introduce and pass bills, this scenario will likely not be the case in Burkina Faso because the country is currently under military role. Captain Ibrahim Traorè in 2022 led a coup that removed President Roch Kaboré and Prime Minister Lassina Zerbo.

Although some have signaled there still needs to be a parliamentary vote, there will be “legal” ramifications for those who are found to be LGBTQ or advocating for the community.

Consensual same-sex sexual relations or identifying as LGBTQ were regarded as legal in Burkina Faso before the July 10 announcement. Same-sex marriages were — and remain — illegal.

Members of the Transitional Legislative Assembly last September met to discuss regional issues that included the prohibition of and penalization of homosexuality and restricting the creation of groups that advocate on behalf of sexual minorities. The TLA incorporated the suggestions into a report and submitted it to Burkina Faso’s leadership.

Some of the country’s LGBTQ groups and human rights organizations have called upon the current leadership to respect and acknowledge other genders.

“We are all equal in dignity and rights,” said the National Consultive Commission on Human Rights, which is known by acronym CNDH (Commission Nationale des Droits Humains in French), in a statement. “CNDH is fighting against all forms of discrimination based on race gender, religion or social origin.”

“In Burkina Faso, thousands of people suffer from prejudice and injustice every day,” added CNDH. “We must take action. Discrimination weakens our society and divides our communities. Every individual deserves to live without fear of being judged or excluded.”

The organization further stressed “every action counts. Every voice matters.”

“Together we can change mindsets,” it said. “We must educate, raise awareness and encourage respect for diversity.”

CNDH President Gonta Alida Henriette said the government’s decision “would be the greatest violation of human rights in Burkina Faso and would condemn hundreds of thousands of LGBT+ people in Burkina Faso.” Alice Nkom, an African human rights activist, echoed this sentiment.

“Why politicize a privacy matter among consenting adults while making it a crucial topic for Africa? I answer you: Stop spying on your neighbor for the wrong reasons,” said Nkom. “Mind your own life and, if you care about your neighbor, worry about their health, if water is coming out of the tap, if there is electricity in the house, or food to feed their children.”

“Why are they prioritizing the issue of saying no to homosexuality in Africa instead of no wars or armed conflict in Africa, no poverty in Africa, no hunger in Africa, no misery in Africa?,” asked Nkom. “We should stop being distracted by topics that take away nothing and add nothing to our lives.”

Other activists say the proposal would expose the LGBTQ community and its allies to imprisonment and other punishments. They say the repercussions would go beyond legal implications; making human rights and sexual minority activists more vulnerable to criminal action, persecution, and arbitrary arrests. 

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Africa

Cameroon president’s daughter comes out

Brenda Biya acknowledges relationship with Brazilian model

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Brenda Biya (Photo via Instagram)

The daughter of Cameroonian President Paul Biya has come out as a lesbian.

Brenda Biya, 26, on June 30 posted to her Instagram page a picture of her kissing Brazilian model Layyons Valença.

“I’m crazy about you and I want the world to know,” said Brenda Biya.

Her father has been Cameroon’s president since 1982.

Consensual same-sex sexual relations remain criminalized in the Central African country that borders Nigeria, Equatorial Guinea, Gabon, the Republic of Congo, the Central African Republic, and Chad. The State Department’s 2023 human rights report notes harassment, discrimination, violence, and arbitrary arrests of LGBTQ people are commonplace in the country.

Brenda Biya is a musician who does not live in Cameroon.

The BBC reported she told Le Parisien, a French newspaper, in an exclusive interview published on Tuesday that she and Valença have been together for eight months. The women have also traveled to Cameroon together three times, but Brenda Biya did not tell her family they were in a relationship.

Brenda Biya said she did not tell her family that she planned to come out, and they were upset when she did. Brenda Biya told Le Parisien that her mother, Cameroonian first lady Chantale Biya, asked her to delete her Instagram post.

The Washington Blade on Thursday did not see the picture of Brenda Biya and Valença on her Instagram account.

“Coming out is an opportunity to send a strong message,” Brenda Biya told Le Parisien.

Brenda Biya described Cameroon’s criminalization law as “unfair, and I hope that my story will change it.”

Activists applauded Brenda Biya for coming out. The BBC reported the DDHP Movement, which supports Cameroon’s anti-LGBTQ laws, filed a complaint against her with the country’s public prosecutor.

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Africa

Ugandan activists again appeal ruling that upheld Anti-Homosexuality Act

Country’s Constitutional Court in April refused to ‘nullify’ law

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(Image by rarrarorro/Bigstock)

A group of LGBTQ activists in Uganda on Thursday once again appealed a ruling that upheld the country’s Anti-Homosexuality Act.

President Yoweri Museveni in May 2023 signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

The Ugandan Constitutional Court on April 3 refused to “nullify the Anti-Homosexuality Act in its totality.” Sexual Minorities Uganda Executive Director Frank Mugisha and Jacqueline Kasha Nabagesara are among the activists who appealed the ruling to the country’s Court of Appeal on April 16.

A picture that Mugisha posted to his X account on Thursday notes he, along with Nabagesara, are two of the 22 activists who filed the latest appeal with the Supreme Court, which is the country’s highest court.

“Today, we have filed an appeal in the Supreme Court of Uganda to overturn the Constitutional Court decision that upheld the Uganda Anti-Homosexuality Law,” said Mugisha.

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