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Judicial injudiciousness of Malawi gay sentence

By Nick Wright
Posted on Thursday, 27 May 2010 12:25

In the Know features an interview, opinion or analysis on the events making the news in Africa each week

The case of Stephen Monjeza and Tiwonge Chimbalanga has been Malawi’s Oscar Wilde trial. A decision last week to hand-down a 14-year sentence to a young gay couple who held a same-sex wedding has met with international condemnation. Malawi’s political class realise it must tread carefully or else donors could pack their bags.

Some people, inside Malawi and outside it, have been holding their breath before 21 May for a judicious – rather than a strictly judicial – decision by the Blantyre chief magistrate in the case of the gay couple Stephen Monjeza and Tiwonge Chimbalanga. They did not get it. Chief Magistrate Nyakwawa Usiwa-Usiwa, having already declared on 18 May that the young men were guilty of the “gross indecency” and the sodomy with which they were charged, proceeded to sentence the couple to 14 years imprisonment with hard labour. This is the maximum sentence permitted under the old colonial penal code that still applies in Malawi.

The judge’s summing-up made it clear that he was determined to make an example of these men in order to “scare-off” other same-sex partners “tempted to emulate this horrendous example”. Malawi’s very culture was (he felt) at stake, although he was not specific about where he wished to scare such people away to. European border agencies fear that it may be into their own asylum-seeker hostels.??

An injudicious judicial decision can place some reasonable people in very awkward positions. Some in Malawi, and many more elsewhere, have a nasty sense of miscarriage of justice: one which condemned two lovers, still in their twenties, to the living hell of Blantyre’s overcrowded Chichiri prison.

Others – the magistrate clearly among them – felt that not only was the letter of the law here at stake, but so too were Malawi’s “cultural traditions”. The mobs of young men who circled the courthouse clearly agreed, as they wildly cheered his decision.

Malawi’s Catholic and Muslim leaders were not slow to add their voices of support. Traditional leaders, ever sensitive to the direction of the political wind, joined Paramount Chief Inkosi M’Mbelwa IV of the Angoni people in cheering the judgement.??

It could be argued that Malawians were merely demonstrating the simple point that their country belongs to a large group of African countries which do not like homosexuality and are determined to treat it as a noxious foreign disease that must be eradicated before it spreads any further.

This is the line that most of the political class in Malawi is quietly pushing; but they are unusually quiet because they realise that the Western donors who supply half of Malawi’s annual budget – and their own lavish life-styles with it – are not at all happy with this decision.

The donors, after all, have to face their own human rights ‘mobs’ back at home which are baying for a cutting-off of aid to Malawi until that poor country ‘sees sense’. The Blantyre mobs may be able to tell donors, in no uncertain terms, where to go with their tainted money and bullying habits, but Malawian politicians must be more circumspect in their public pronouncements.??

The great delusion that the Western and the Malawian mobs share is their utter conviction that their own human rights and homophobic values, respectively, have been – and will forever be – fixed and immutable. One only has to listen to the pronouncements of the Church of Scotland, in Edinburgh on this case, and those of the Central African Presbyterian Church in Malawi to realise how very un-fixed and mutable they are: two fresh branches from the same trunk perhaps, but spreading in opposite directions.

On 21 May, Reverend Ian Galloway, in Scotland, pronounced that this “is not a just decision… It is not right to imprison people on the grounds of their sexuality.” On the same day, Reverend Levi Nyondo, general secretary of the Livingstonia Presbyterian Synod in Malawi, declared “we are happy they have been sentenced to 14 years in jail.”

Some people have already noted the similarities between the London crowds at the time of Oscar Wilde’s trial in 1895 and those in Blantyre last week, and the words of the two judges, separated by a mere 115 years, as they lamented the inadequate jail sentences available to them. The Malawian town names Livingstonia and Blantyre might remind such careful observers how far Scotland has travelled since David Livingstone was back in his own homeland.??

Truth and justice, culture and tradition, must sometimes be sought far away from the great books of criminal law and holy writ, and well away from their eloquent professional guardians in judicial wigs and clerical collars. More surely, perhaps, in the day-to-day business of family and village life in Malawi, where eccentricities of behaviour are more likely to be treated with some common sense and love, and where nothing is written in stone.

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