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MALAWI: Gay Couple Released After Presidential Pardon

Laure Pichegru

JOHANNESBURG, May 31 2010 (IPS) - Five months and a day after their arrest, the gay Malawian couple who dared to publicly declare their union with a traditional engagement party were pardoned by the president and released without conditions.

Stephen Monjeza and Tiwonge Chimbalanga were found guilty and sentenced to the maximum sentence of 14 years with hard labour.

Speaking at the consecration of a Catholic bishop in April, President Bingu wa Mutharika had condemned the couple. “A man getting married to a fellow man is evil and bad before the eyes of God. There are certain things we Malawians just don’t do.”

But on May 29, Mutharika announced the pardon shortly after a meeting with U.N. Secretary-General Ban Ki-Moon. The U.N. was one of many international organisations that had urged Malawi to reconsider the sentencing and Moon praised the “courage” of the decision of the President of Malawi.

According to local media, the men were released several hours after the announcement and conducted to their respective homes.

Local and international activists have welcomed the pardon.

Gift Trapence, director of the Centre for Development of People (CEDEP), a local human rights organisation which works for the welfare of marginalised groups, told IPS, “We are happy that the President of Malawi took this decision and that he, as the head of the African Union, sent the message to the other African countries that all the people are equal, no matter what their sexual orientation is.”

Clemency not justice

However the pardon changes nothing with regards to Malawi’s penal code: homosexual acts remain illegal.

“There are other gay people who deserve their rights to be recognised,” says Trapence. “It is time to look at how we can remove these laws.”

Immediately following sentencing on May 20, the gay couple had instructed their lawyer to file an appeal to the High Court on constitutional grounds. Malawi’s constitution guarantees freedom of conscience, privacy and expression which includes sexual orientation, in the opinion of human rights lawyer Chrispine Sibande.

“The gay suspects did not do anything wrong as long as they lived the without violating other people’s rights,” Sibande told IPS in January.

Article 20 of Malawi’s Constitution states that “discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status”.

Anthony Kamanga, Malawi’s solicitor general and secretary for justice and constitutional affairs denies that the pardon was intended to avoid an appeal that could have overturned sections of the Penal Code.

“The President exercised clemency. It has nothing to do with blocking an appeal to the High Court.”

Kamanga also denied the release of the couple had anything to do with pressure from international donors. “Our partners did raise concerns, but none of them did threaten to reduce aid on account of this matter, as far as I know.”

For the moment CEDEP’s Trapence is worried about the safety of the two men: “They are free, but now the major concern is about their security,” he said.

“Their identity is known, so they cannot walk free on the streets because they could be physically attacked. Their lives are still in danger.”

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