Malawi's Top Court Rejects Case Seeking to Legalize Same-Sex Relationships

In Summary

• Malawi’s Constitutional Court dismissed a case seeking to legalize same-sex relationships.
• The case was brought by Jan Willem Akster, a Dutch national, and Jana Gonani, a Malawian transgender man.
• Akster faces nine charges of sexual abuse and sodomy, while Gonani is charged with unnatural offenses.
• The court rejected the applicants' arguments that Malawi’s laws violated their rights to privacy and dignity.
• Judges stated the applicants failed to provide evidence of discrimination or violations of health rights.
• The court upheld police actions during Gonani's arrest, stating they were lawful.
• State lawyers welcomed the ruling, while the applicants' lawyers and rights activists expressed disappointment.
• Homosexuality remains illegal in Malawi, with penalties including up to 14 years in prison.

BLANTYRE, MALAWI — Malawi’s Constitutional Court on Friday dismissed a case brought by two applicants seeking to legalize same-sex relationships. The ruling was welcomed by state lawyers, while lawyers for the applicants expressed disappointment. Malawi joins other African States like Uganda that have refused attempts to legalise same sex marriages.

The case was brought by Jan Willem Akster from the Netherlands and Jana Gonani, a Malawian transgender man. They sought the Constitutional Court's interpretation of Malawi's anti-homosexuality laws following their arrest in 2021. Akster faces nine charges of sexual abuse and sodomy, while Gonani is charged with unnatural offenses. They argued that Malawi’s laws violate their fundamental rights, including the rights to privacy and dignity.

However, Judges Joseph Chigona, Vikochi Chima, and Chimbizgani Kacheche rejected their arguments. Chigona stated that the applicants failed to provide evidence of discrimination under the country's laws.

Chigona highlighted that Akster could not prove that Malawi’s laws violated his right to health. “The first applicant was asked in a cross examination if he had ever accessed a public hospital and replied that he had gone to Zomba Central Hospital after he had been involved in a car accident," Chigona said. "When he was asked about his experience there, especially if he was asked about his sexual orientation before he was assisted, he said he was not. He actually said that he was medically assisted so well. The only complaint he had about the facility were spiders in the ward.”

The court also dismissed claims that Malawi police violated Gonani’s right to privacy when they ordered him to undress to confirm his claims that he was transgender. Chigona explained, “We know that by Section 24 of Criminal Procedure and Evidence Code that police are empowered to search a suspect who is reasonably suspected of having committed a particular offense and who has been arrested. The caveat is that the search only extends as it is reasonably required for discovering a thing upon this person in connection to the offenses he was suspected of.”

Minority rights activists and religious leaders attended the judgment delivery, which lasted over six hours. Rights activist Michael Kaiyatsa of the Center for Human Rights and Rehabilitation expressed his dissatisfaction with the ruling but reserved further comments until reviewing the written judgment.

Defense attorney Bob Chimkango remarked, “To be honest, we are satisfied with the process, but the only thing that we may not be agreeing with is the judgment itself. But it’s too early to comment as you will notice it’s a 135-page document. We were just listening — we were not working on it. So we will be waiting for it to be given to us, analyze it and then advise the client accordingly.”

A spokesperson for the Ministry of Justice, Frank Namangale, told reporters outside the court that the government was happy with the ruling. Same-sex marriages have been a controversial issue in Malawi. In July 2023, religious leaders led street protests across the country against the potential legalization of same-sex marriage.

Friday’s judgment means homosexuality remains an offense in Malawi, punishable by a maximum prison sentence of 14 years. The Constitutional Court noted that the applicants were free to ask parliament to amend the country’s homosexuality laws if they were not satisfied with its judgment.