MALAWI-SOGI-TBs-CCPR

Concluding Observations on Report 1 (2014) (Link)

National human rights institution

6. The Committee is concerned that the Malawi Human Rights Commission does not function fully independently and is not yet adequately funded. The reluctance of the Commission to engage in issues related to the rights of lesbian, gay, bisexual, transgender and intersex persons is also a source of concern for the Committee. The Committee further notes the absence of adequate mechanisms in place for the effective consideration of the Commission’s recommendations (art. 2).

The State party should amend the Human Rights Commission Act to ensure that the Commission enjoys full independence, in line with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles). The State party should also provide the Commission with adequate financial and human resources and establish mechanisms for the consideration and implementation of the Commission’s recommendations. The Commission should fully comply with its mandate and engage in all human rights issues, including those related to the rights of lesbian, gay, bisexual, transgender and intersex persons.

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Sexual orientation

10. The Committee is concerned that consensual same-sex sexual activity among consenting adults is still criminalized. It is also concerned about reports of cases of violence against lesbian, gay, bisexual, transgender and intersex persons and that, owing to the stigma, these persons do not enjoy effective access to health services (arts. 2 and 26).

The State party should:

(a) Review its legislation to explicitly include sexual orientation and gender identity among the prohibited grounds of discrimination and repeal the provisions that criminalize homosexuality and other consensual sexual activities among adults (arts. 137 (A), 153, 154 and 156 of the Penal Code);

(b) Introduce a mechanism to monitor cases of violence against lesbian, gay, bisexual, transgender and intersex persons and undertake all necessary measures to prevent those cases, prosecute the perpetrators and compensate the victims;

(c) Ensure that public officials refrain from using language that may encourage violence and raise awareness to eliminate stereotyping and discrimination;

(d) Guarantee effective access to health services, including HIV/AIDS treatment, for lesbian, gay, bisexual, transgender and intersex persons.

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Concluding Observations in the absence of a report (2012) (Link)

7. The Committee is concerned about allegations regarding reported cases of violence and discrimination against people engaging in same-sex relationships in the State party, as well as allegations of incitement to violence against them by some public officials and authorities, despite section 20 of the Constitution, which guarantees equality of persons and prohibits discrimination. The Committee is also concerned about sections 153 and 156 of the Penal Code, which criminalize homosexuality, and about the new amendment to the Penal Code, section 137A, which also criminalizes same-sex relationships between women (arts. 2, 3 and 26).

The State party should amend its Penal Code to decriminalize homosexuality between adults of both sexes, and conduct awareness-raising campaigns to educate the population on this issue. The State party should also take appropriate steps to protect persons engaged in same-sex consensual relationships against discrimination and violence on the basis of their sexual orientation, and ensure that public officials and public authorities refrain from using language that may encourage hatred and violence against them. In this regard, the State party should prosecute persons allegedly responsible for such acts of discrimination and violence, and punish those who are convicted.

Response: The Government of Malawi has referred to the Law Commission for review of all legislation referred to above. The review process will be thorough and consultative. The Malawi Law Commission is an independent body and its recommendations are seriously considered by the Government of Malawi.

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