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REVIEW OF LEGAL AND POLICY REFORM ISSUES
IMPENDING THE EFFECTIVE IMPLEMENTATION OF
HIV AND OTHER HEALTH RELATED INTERVENTION
FOR
MEN WHO HAVE SEX WITH MEN AND OTHER
SEXUAL MINORITY GROUPS IN MALAWI
By
JESSIE KABWILA KAPASULA PhD.
CHANCELLOR COLLEGE
BOX 280
ZOMBA
FEBRUARY, 2012
CONTENTS
Abbreviations and Acronyms
iii
Definition of key terms
iv-vi
Introduction, Background and Objectives of Study
1
Methodology
2
1.0 Legal Review
2
1.1 MSM
2
1.2 Sex Workers
6
1.3 The Prison Act
8
2.0 Policy Documents Review
10
2.1 THE MALAWI OVERTY REDUCTION STRATEGY
10
2.2 MALAWI NATIONAL HIV and AIDS POLICY
11
2.3 REPRODUCTIVE HEALTH POLICY
15
2.4 NATIONAL YOUTH POLICY
16
2.5Towards a Cultural Development Policy
17
3.0 Issues Impacting HIV/AIDS Interventions for Sexual Minorities
18
3.1 Is MSM and Homosexuality Malawian? – A Specialists Debate 18
3.2 From the Gay/Homosexual MSM Horse’s Mouth
22
3.3 Legal Issues
27
3.4 Policy Issues
29
4.0 MSM/Sex workers, HIV/AIDS Interventions, Malawi
31
– Stakeholder’s Views of Status Quo.
4.1
A View from Higher Education
31
4.2
EDUCAIDS
32
4.3
The View of District AIDS Coordinators
34
4.4
The view of a Human Rights Activist Lawyer
35
4.5
View of University, College HIV/AIDS Counsellors
36
4.6
View of the Clergy
37
5.0 Sex Workers, Victims of Malawi’s Double Patriarchy
38
5.1
From the Horses Mouth
39
6.0
Action Points
46
7.0
Conclusion
47
8.0
References
49
ii
ABBREVIATIONS AND ACRONYMS
AIDS
ART
ARV
CBO
DAC
FBO
KAP
MBC
MGDS
MSM
NAC
NGO
OI
PEP
PTA
PLWA
SADC
SSM
STI
TBA
TTC
UNDP
UNAIDS
VCT
WHO
WSW
Acquired Immune Deficiency Syndrome
Antiretroviral Therapy
Antiretroviral
Community Based Organisation
District Aids Coodinator
Faith Based Organisation
Knowledge, Attitudes and Practice Study
Malawi Broadcasting Corporation
Malawi Growth and Development Strategy
Men who has sex with men
National Aids Commission
Non Government Organisation
Opportunistic Infection
Post Exposure Prophylaxis
Parents and Teachers Association
People Living With HIV/AIDS
Southern Africa Development Community
Same Sex Marriage
Sexually Transmitted Infection
Traditional Birth Attendants
Teacher Training College
United National Development Programme
Joint United Nations Programme on HIV/AIDS
Voluntary Counselling and Testing
World Health Organisation
Women who have sex with women
iii
DEFINITION OF KEY TERMS
Gender Identity defines the gender by which a person identifies themselves, it refers
to each person’s deely felt internal and individual experiences of gender:
 Cgendered is persons identify their gender as that given to them at birth.
 transgender persons identify their gender as different from that given to them
at birth. Some say that they have a female brain trapped in a male body, or
vice versa. Some identify with neither gender; some with both genders; some
feel that they are disengaged from the concept of gender.
 Intersex is a term that refers to a person whose biological sec cannot be
classified as clearly male or female. Some people do not identify as either
exclusively female or exclusively male. This happens whether they are
physically intersex or not.
Sexuality refers to a central aspect of being human throughout life and encompasses
sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and
reproduction. Sexuality is experienced and expressed in thought, fantasies, desires,
beliefs, attitudes, values, behaviours, practices, roles and relationships. While
sexuality can include all the dimensions, not all of these are always experienced or
expressed. Sexuality is influenced by the interaction of biological, psychological,
social, economic, political, cultural, ethical, legal, historical, religious and spiritual
factors.
Sexual Orientation is a term that is embraced by some and rejected by others. It
refers to emotional, romantic, sexual, affectional attraction and/or actual sexual
behaviors. Sexual minority groups do not agree on the number, some say there are
two sexual orientations whilst others give figures as high as thirty. The majority of
lesbians, gays, bisexuals, intersexed and transsexuals have reached a consensus that
there are three: heterosexuality, bisexuality and homosexuality.
Homosexuality is a term that generally refers to same-gender sexual
behaviour. When used by religious conservatives, it usually refers to (what
one does). When used by the LGBTI community, therapists, etc. it generally
refers to sexual orientation (what one is).
A homosexual orientation means that one is attracted to members of the same
sex and/or gender only. Gay means a homosexual person. This study uses the
words interchangeably. Gay and homosexual generally refers to
homosexuality as a way of life, a gender and sexual orientation rather than
MSM as a sexual practice. Both terms are in use in Malawi to the point of
being vernacularised as zamagey or za(u)mahomo.
A heterosexual orientation means that one is attracted to members of
the opposite sex and/or gender only.
A bisexual orientation means that one is attracted to both men and
women, although not necessarily to the same degree.
Lesbian is a term that describes emotional, romantic, sexual and affectional
attraction and/or actual sexual behaviours between females. It can be used as a
noun to refer to women who identify with female homosexuality or as an
iv
adjective to describe characteristics of female same sex desire objects or
activities.
Men who have Sex with Men (MSM) is an umbrella term constructed by
development health workers in recognition of the fact that sex between men occurs in
divers circumstances and among me whose experiences, lifestyles, behaviours and
identities vary greatly. The term refers to the act of sex between men and may
therefore involve men who identity as homosexual, gay bisexual, transgendered,
intersexed or heterosexual. It can be used to denote a practice and/or group.
A recent study lists kinds of sexual activities of MSM in Malawi include:
Fucking
16.4
Being fucked
9.5
Sucking
14.5
Being sucked
12.1
Masturbation
15.8
Rubbing
3.2
Kissing
14.2
Licking
5.5
Being Licked
2.9
Being finder fucked
2.1
Finger fucked
2.9
Sex Toys (Vibrator etc)
.5
Other
.3
KAP of People in Same Sex Relationships in Malawi, CEDEP, 2007, 12)
Women who have Sex with Women (WSW) is an umbrella term constructed by
development health workers in recognition of the fact that sex between women occurs
in diverse circumstances and among women whose experiences, lifestyles, behaviours
and identities vary greatly. The term refers to the act of sex between women and may
therefore involve women who identity as lesbian, bisexual, transgendered, intersexed
or heterosexual. It can be used to denote a practice and/or group.
Living on the Down-Low is an African-American sexual slang word that refers to a
subculture of men who due to the racialised and gendered stigma and ostracisation,
usually identify as heterosexual but who have sex with men. Research has shown this
to be an urban middle and upper class phenomenon. These men use heterosexuality
and heterosex to cover up for their being homosexual. As a result, they often are
characterised by having many public ‘posturing’ heterosexual relationships so that
they can pass as heterosexual. In public, they deny vehemently being homosexual and
do all they can to convince the world that they are heterosexual. This group is often
confused with bisexuals. They can also use the latter as a front and cover to hide their
homosexuality. They avoid sharing information of their homosexuality with their
female sexual partner(s).
Patriarchy is an ideological and hegemonic system of gender governance that
advocates the creation and maintenance of male dominance in societies globally. It is
v
power that is used to dominate women of different ages, classes, religions, races and
occupations.
Sex Workers in the Malawian context refers to women who receive money or goods
in exchange for sexual services, either regularly or occasionally.
Sexual Minorities refers to people whose sexual orientation, gender identity, and or
consensual adult sexual behaviours do not conform to majority norms and values.
LGBTI is an acronym commonly used in English speaking countries as a more
inclusive descriptor of the ‘gay community’ often views as a useful way to refr to
people who are ton heterosexual.
From Global Fund Information Note: Sexual Orientation and Gender Identities (May 2010)
vi
INTRODUCTION
This report is a desk review of Malawi’s legal and policy documents, identifying how
the latter impact the implementation of HIV and other Health related interventions for
men who have sex with men (MSM) and other sexual minority groups in Malawi
(LGBTI and Sex workers). The legal issues that stand out are the criminalization,
discrimination of sexual minorities and, the contradiction between the Constitution
and laws pertaining to sexual minority groups. Policy documents such as the HIV and
AIDS, Gender, Youth, Reproductive Health, Social Welfare Cultural, Malawi Growth
and Development Strategy (MDGS) and Prison Act evidence an endemic denial of the
presence and human rights of sexual minorities, especially MSM. The policies show
an acute failure to link sexual reproductive health right to HIV/AIDS interventions of
MSM and Sex workers.
The report is has seven sections. After introducing the study and giving its
background, a review of legal and policy documents follows. The third section lists
issues that have emanated from the reviews, focusing on issue number one that arose,
‘Is MSM/Homosexualtiy number Malawian? The views of MSM members are
chronicled. Section four looks at views of stakeholders on what is on the ground in
Malawi, when one engages the question of HIV/AIDS interventions of MSM and Sex
workers. The views of sex workers are featured in Section 5. Section 6 has action
points, then the reports is concluded.
BACKGROUND AND OBJECTIVES OF STUDY
Centre for the Development of People (CEDEP) in collaboration with other partners is
implementing a project called Unite for Body Rights (UFBR) programme with the
prime focus on addressing the strong link between sexual reproductive health and
rights among different groups.
CEDEP will primarily focus on the marginalized groups and specifically LGBT.
Sexual and reproductive ill health among marginalized groups is rooted in Sexual and
Gender-Based Violence, stigma and discrimination. This is compounded by an
unfriendly health system which does not have the capacity to meet the specific needs
of marginalized groups.
CEDEP UFBR programme will therefore initially focus on MSM. MSM are
acknowledged in the National HIV Prevention Strategy 2009-2013, and there is more
data and debates on MSM issues. This provides an opportunity for the SRHR Alliance
to join the debate and explore opportunities for addressing broader LGBT issues.
The UFBR Programme is targeting communities in the Dedza, Mangochi and
Chikwawa districts. These districts have been selected on the basis of the District
Poverty Rate, 14 the presence of existing partners and other actors and the track
record of SRHR Alliance partners. It is estimated that the UFBR Programme in
Malawi will reach at least 70% of the target groups in the Dedza, Mangochi and
Chikwawa districts.
.
One of the project activities is to review the available policies and laws in order to
identify key issues that impede the effective implementation of HIV and other health
related interventions to most-at-risk populations specifically MSM. Special focus will
be on the review of the penal code and the HIV and AIDS draft Bill and other national
1
HIV reports and interviews with key stakeholders. A report that outlines and analyzes
such key issues and specifies action points will be produced.
This report will provide useful input for CEDEP advocacy activities. This advocacy
will aim at soliciting the support towards implementation of policies and laws that are
non-discriminatory and friendly to marginalized groups. Strategies to be used will be
such as holding sensitization meetings, policy papers etc. This in return will improve
the conditions for providing comprehensive sexuality education, providing
comprehensive SRH services and addressing issues of sexual violence. The target for
the advocacy will be parliamentarians and key policy makers.
METHODOLOGY
In order be clear on the legal and policy issues and have a comprehensive
contextualised understanding of how they impact HIV and other health related
interventions on sexual minorities in Malawi, focusing on MSM, desk reviews of
legal and policy documents are complimented by oral interviews of,










MSM and Sex workers;
NAC;
Activists;
District AIDS Coodinators;
Lawyers;
Education officials;
Human Rights activists;
NGO’s working on HIV/AIDS;
Members of Parliament.
Academics
The study employs a literary narratology approach. This method is subject centered, it
privileges subjectivities that are constructed by the experiential knowledge, lived
experiences of sexual minorities because they are criminalised. This study privileges
their voices because sex and gender minorities come from a history of being spoken
for and infantilised into non-existence. This study centers and chronoligises what
comes comes from the ‘horses mouth’ as that is one way to recognise they are human
and remind those who deal with HIV/AIDS interventions that the personal is political.
What sexual minorities feel, think and believe should be taken seriously because they
are people who have rights just like the majority. It will be seen that in this study,
views of sexual minorities who are own their sexual orientation, citizenship and HIV
and AIDS status are given a lot of space and weight.
1.0
Legal Review
1.1
MSM
In Malawi, men who have sex with men (MSM) are arrested on the basis of a series of
Sodomy laws of the Penal Code for example, Section 153 on ‘Unnatural Offenses’:
Any person who(a) has carnal knowledge of a person, against the order of nature; or
2
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the
order of nature, shall be guilty of a felony and shall be liable to
imprisonment for fourteen years, with or without corporal punishment.
Section 154 buttresses 153 stating that,
Any person who attempts to commit any of the offences specified in the last
preceding section shall be guilty of a felony and shall be liable to
imprisonment for seven years, with or without corporal punishment.
Another section that is employed is Section 156 on ‘Indecent Practices’ between
males:
Any male person who, whether in public or private, commits any act of gross
indecency with another male person, or procures another male person to
commit any act of gross indecency with him, or attempts to procure the
commission of any such act by any male person with himself or with another
male person, whether in public or private, shall be guilty of a felony and shall
be liable to imprisonment for five years, with or without corporal punishment.
A male who has carnal knowledge of a female person is also booked under Section
148: Conspiracy to defile
Any person who conspires with another to induce any woman or girl, by
means of any false pretence or other fraudulent means, to permit any man to
have unlawful carnal knowledge of her shall be guilty of a felony, and shall be
liable to imprisonment for three years, with or without corporal punishment.
Section 157of the Penal Code is also employed and a person found guilty is liable to
imprisonment for five years. Section 158 of ‘Incest by females’ also engages the issue
of carnal knowledge: Any female person of or above the age of sixteen years who
with consent permits her grandfather, father, brother, or son to have carnal knowledge
of her shall be guilty of a felony and shall be liable to imprisonment for five years.
What this means is that in Malawi, the only sex that is legal is the heterosexual one
that is, the penis to vagina one and, it must be for procreative processes. According to
the foregoing sections of the Penal Code, if a heterosexual couple engages into other
forms of sexual practices, for example anal, that is an offense. If they have sex just for
the sake of sex that is for fun, that is also offense. This is problematic on many counts.
To start with, one wonders who has the prerogative to define ‘order’ and ‘nature’ that
is referred to in section 153 of the Penal Code. A critical analysis of these sodomy
laws characterises them as ‘alien legacies’ (Human Rights Watch 2008) of the
Malawi’s British Judeo-Christian colonial past. Locating these laws in Malawi’s
colonial history, helps characterise the colonial nature of these laws.
A Colonial Legacy
Malawi was a British Protectorate 1891 to 1961 and Christianity came to Malawi
through this colonisation. Most Malawians are Christians -and some statics put their
majority to be as high as 75% of the population1. In Christianity, sex is presented as a
1
Christianity is the majority religion in Malawi . Sixty percent of Christians are Protestant and 15% are Catholic.
Other sects include Baptists, Seventh Day Adventists, Anglicans, Church of Central African Presbyterians
(commonly called CCAP), and Jehovah’s Witnesses. Jehovah’s Witnesses have had a particularly hard time
proselytizing in Malawi . The first Jehovah’s Witness missionary was forced out of Malawi in the 1910’s, but the
religion took hold anyway. President Banda did not approve of Jehovah’s Witnesses, so he outlawed the religion.
President Muluzi made it legal again in 1995, and it has flourished since.
3
marital act whose primary function is procreation. This belief is pivoted on the
Genesian Adam and Eve story and that is taken to be the norm and prescription for
sex and sexuality. It is believed that God’s creating Adam and Even and not Adam
and Steve or Eve and Eve, validates heterosexuality and dams homosexuality. The
Adam and Eve sex formula unashamedly constructs a heterosexism that dictates that
sex must only happen in marriage and between a man and woman. This Christian
background that Malawians come from is compounded by the Sodom and Gomorrah
story in the bible, hence the legal term Sodomy and sodomisation. This is the history
of that term. So we have here proof of a legal term coming from the Judeao-Christian
notions and values. It is clear that when the Penal Code talks of the order of nature, it
is referring to the order and nature as defined by Christian beliefs and ethics,
specifically what is the order deemed to be sanctioned by the Christian God. As a
result, the laws mainstream, normativise and logicise Christianity, making the latter’s
stand on sex and sexuality, law and making legal any stand that is to the contrary of
Christianity’s. We end up with the law being used to advance morals of the majority
and from a human rights perspective, this is dangerous and wrong because then the
law silences and criminalises morals of the minority. In other words, just like in other
former colonies of Britain like India, Bangladesh, Myanmar, Pakistan and Sri Lanka,
these laws are an oppressive legacy of British Colonialism and Victorian morality. In
fact, a 2008 Human Rights Watch report, “The Alien Legacy: The Origins of
‘Sodomy’ Laws in British Colonialism”
Describes how laws in over three dozen countries, from India to Uganda and
from Nigeria to Papua New Guinea, derive from a single law on homosexual
conduct that British colonial rulers imposed on India in 1860 (5).
The report shows that British colonial rulers brought these laws to inculcate British
morals (9). It is also because they saw the colonised as sexually lax and morally weak
therefore, in urgent need of control in issues of sexuality (7, 9). Some of the
colonialists also saw the colonies as Sodom and Gomorrahs, places whose vices
colonialists needed to be protected from. So,
In the early 19th Century, the British drafted a new model Indian Penal Code,
finally put into force in 1860. Section 377 punished “carnal intercourse against
the order of nature” with up to life imprisonment. …Versions of Section 377
spread across the British Empire, from Africa to Southeast Asia. Through it,
British colonisms imposed one view of sexuality, by force, on all their
colonised people (8, 9).
In Africa, the following are the countries that inherited versions of this law:
Christianity has a huge presence in Malawi . Until 2001, Bible Knowledge was a required subject for all Malawian
secondary school students—it has since been replaced with a Religious Education curriculum that includes other
world religions. Christianity was first introduced to Malawians by David Livingstone and other missionaries who
worked along the lakeshore in the late 1800’s. Christianity spread rapidly under British colonialism despite an
initially hostile welcome. Now most villages have a mission or an extension of some Christian sect. Some of the
missions provide vocational training, schools, or hospitals at cost for the local community. Services are in the local
language in all areas and areas with large populations of whites/expatriates may offer services in English.
Although Christianity has had a number of positive influences on Malawi (i.e. education and provision of health
care institutions), it has not been without cost. In many cases Christianity considers traditional beliefs and ways of
living to be incompatible or inferior, and as a result, these cultural values have dwindled, if not disappeared
altogether. ‘Friends of Malawi’. http://www.friendsofmalawi.org/learn_about_malawi/culture/religion.html.
Retrieved February, 15 2012. 21.35pm.
4
Botswana, Gambia, Ghana16, Kenya, Lesotho, Malawi, Mauritius, Nigeria,
Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda,
Zambia, and Zimbabwe (10).
Clearly, Scott Long of Human Rights Watch is right to assert that, ‘Half the world’s
countries that criminalise homosexual conduct do so because they cling to Victorian
morality and colonial laws’ and ‘getting rid of these unjust remnants of the British
Empire is long overdue’ (6).
Diametrically Opposing the Malawi Constitution
Criminalising the sexual rights of same sex attracted people, who are a minority in
Malawi, diametrically opposes Chapter four of the Malawi Constitution. It opens by
making it clear that,
the human rights and freedoms enshrined in this Chapter shall be respected
and upheld by the executive. Legislature and judiciary and all organs of the
Government and its agencies and, where applicable to them, by all natural and
legal persons in Malawi and shall be enforceable in the manner prescribed in
this Chapter (Section 15, The Constitution of the Republic of Malawi 1999).
The Malawi Constitution categorically states that, ‘Every person has a right to
personal liberty’ (Section 18) and ‘The dignity of all persons shall be inviolable’
(Section 19-(1). This means the rights to personal liberty and dignity of ALL people
in Malawi and that includes men who have sex with men, women who have sex with
women, just like transgendered, intersexed and bisexual are recognised and protected
because, they are persons.
According to the Constitution, criminalising someone on the basis of their sexuality,
which is what the Sodomy laws in the Penal Code do, is wrong because all persons
are equal before the law in Malawi. It is unlawful to discriminate against any person
on the basis of sex, language or any other status:
Discrimination of persons in any form is prohibited and all persons are, under
the law, guaranteed equal sand effective protection against discrimination on
grounds of race, colour, sex, language, religion, political or other opinion,
nationality, ethnic or social origin, disability, property or other opinion,
nationality, ethnic or social origin, disability, property, birth or other status
(Section 20).
The Constitution is the supreme law of the land. This means its standards and
principles must be observed by every person, institution or process in Malawi. It is
what frames the relationship between citizens and the government.
Section 12 (1D)of the Constitution talks of human dignity being a fundamental
value. If someone is being asked to mandatory go through a sex test as sex workers
are going through in Malawi see annex (1) that is not upholding their human dignity.
Our Constitution is fairly progressive. It is the Penal Code that has retrogressive laws.
One would have thought that after 1994 when we adopted Democracy and
Constitutionalism, we would take every opportunity to repeal these retrogressive laws.
But we seem to be backsling and a good example is the Tiwonge and Monjeza issue.
It was not used to repeal the sodomy laws that clearly go against the Constitution. It
should concern Malawians that we have a parliament that can pass laws that
contravene the constitution in a democratic dispensation. For example initially, the
order of nature law concerned men only, now we have added Section 138 in the Penal
Code and it now talks of indecency between males.
5
Defilement of girls under thirteen years of age
(1) Any person who unlawfully and carnally knows any girl under the age of
thirteen years shall be guilty of a felony and shall be liable to imprisonment
for life, with or without corporal punishment.
Attempt
(2) Any person who attempts to have unlawful carnal knowledge of any girl
under the age of thirteen years shall be guilty of felony and shall be liable to
imprisonment for fourteen years, with or without corporal punishment:
Provided that it shall be a sufficient defence to any charge under this section if
it shall be made to appear to the court, jury or assessors before whom the
charge shall be brought that the person so charged had reasonable cause to
believe and did in fact believe that the girl was of or above the age of thirteen
years. (Section 138).
1.2 Legal Review - Sex Work
On paper, sex work in Malawi is criminalised under the term prostitution. The offense
is not of one being a prostitute per se but of soliciting and living on the earnings of
prostitution. According to the Penal Code of Malawi Section 145 a
Male person living on earnings of prostitution or persistently soliciting
(1)
Every male person who—
(a)
knowingly lives wholly or in part on the earnings of prostitution; or
(b)
in any public place persistently solicits or importunes for immoral
purposes, shall be guilty of a misdemeanour.
(2) If it is made to appear to a magistrate by information on oath that there is
reason to suspect that any house or any part of a house is used by a woman or
girl for purposes of prostitution, and that any person residing in or frequenting
the house is living wholly or in part on the earnings of the prostitute, the
magistrate may issue a warrant authorizing any police officer to enter and
search the house and to arrest that person.
(3) Where a male person is proved to live with or to be habitually in the
company of a prostitute or is proved to have exercised control, direction or
influence over the movements of a prostitute in such a manner as to show that
he is aiding, abetting or compelling her prostitution with any other person or
generally, he shall unless he shall satisfy the court to the contrary be deemed
to be knowingly living on the earnings of prostitution.
Evidently, it is the living on the earnings that is the main focus.
Section 146 focuses on ‘Woman aiding, etc., for gain prostitution of another woman’:
Every woman who knowingly lives wholly or in part on the earnings of
prostitution, or who is proved to have, for the purpose of gain, exercised
control, direction or influence over the movements of a prostitute in such a
manner as to show that she is aiding, abetting or compelling her prostitution
with any person, or generally, shall be guilty of a misdemeanour.
6
Section 147 looks at ‘Brothels’:
Any person who keeps a house, room, set of rooms, or place of any kind whatsoever
for purposes of prostitution shall be guilty of a misdemeanour.
In reality, a prostitute is a woman in Malawi and prostitutes are arrested on any of the
following three laws:
i.
Section 180
Idle and disorderly persons
(a)
every common prostitute behaving in a
disorderly or indecent manner in any public
place;
ii.
Section 184 Rogues and vagabonds
(1) The following persons—
(a)
every person going about as a gatherer or
collector of alms, or endeavouring to procure
charitable contributions of any nature or kind,
under any false or fraudulent pretence;
(b)
every suspected person or reputed thief who has
no visible means of subsistence and cannot give
a good account of himself;
(c)
every person found in or upon or near any
premises or in any road or highway or any place
adjacent thereto or in any public place at such
time and under such circumstances as to lead to
the conclusion that such person is there for an
illegal or disorderly purpose;
Section 192 of Penal Code is abused to arrest sex workers in Malawi. This section
criminalises a ‘Negligent act likely to spread disease dangerous to life’;
Any person who unlawfully or negligently does any act which is, and which
he knows or has reason to believe to be, likely to spread the infection of any
disease dangerous to life, shall be guilty of a misdemeanour.
Please note this targets acts likely to spread a dangerous disease. This is the section
that is being used to mandatorily test sex workers for HIV and AIDS (see annex 1).
Criminal case number 302/2009 is about six ladies who were clearly suspected to be
sex workers. They were forced to have an HIV and AIDs test. So Malawi is using the
law to prosecute sex workers. Criminal case number 298/2009 of Mwanza first grade
magistrate also involved mandatory testing of sex workers. They were given the same
charge of section 192 of the Penal Code. What is baffling is that AIDS is not a
disease so not only is Malawi using to law to violate human rights, we are using the
law erroneously.
Phallic Law
When one examines the charges that are given on prostitution, you would expect to
see mostly men arrested for prostitution but it is baffling that only women are picked
when Police raid bars or pick ‘prostitutes’ in the street. One cannot prostitute alone
and if the main offense is procurement, that is pimping, one would expect to see the
face of men, the pimps, when one talks of prostitution in Malawi. Instead, a prostitute,
or what is locally called ‘Hule’ is solidly the face of a woman. It is unfair that two
people, a man and woman can engage in the same act but one is deemed a criminal
7
whilst the other is left to go scot free. When you consider that it is mostly men who
pay the female prostitutes for services, the way the law is being in forced in Malawi
encourages men to procure the services but punished women for supplying the
service. When a commercial sex act happens, the woman is a loitering rogue and
vagabond whilst the man is absent from it all thereby legally validated. This shows
the patriarchal and phallic nature of the law.
Legalising Alien Sex Definition
The noun prostitute derives from the verb to prostitute which means ‘to use one’s
abilities, etc wrongly or in a way that is not worth of them, especially in order to earn
money’ (Oxford Advanced Learners Dictionary 1995, 930) and the example given is
that of a prostitute. The question is who is judge of the worth and correctness of the
act, it is according to whose opinion? In communities where women are oppressed
and patriarchal communities like in most European communities, historically, it is the
men who decide what is worthy, wrong or right ((Pateman 1996, Mies 2006). In
general, in acts that involve both genders, one often finds that it is women who are
declared villains especially in acts involving sex. Mies (2006) argues that this is
especially true for capitalist communities as they criminalise women in sex issues so
that that service is devalued and not paid for.
In Malawi, defining someone who is receiving money in returning for sex, needs to be
balanced with the way sex has multiple uses in Malawian communities, unlike in
British Christian morals and ideals.
The many uses of Sex in Malawi
The problem with the colonial Christian defined function of sex defined in the Penal
Code is that research evidences that in Malawi as in many African societies, sex has
many functions (see Mbiti on African Religions 1970, 1975). This monolithic view of
the functions of sex is alien. In Africa, sex can be for:
a. procreation
b. rehabilitation
c. healing
d. identity
e. rituals
f. rites of passage.
The history of Malawi shows that people have sex for more reasons than procreation
and with more than one person. Oral interviews conducted by the researcher for this
study also buttressed this view. An interview of Professor Wiseman Chijere Chirwa
on his forthcoming publication on Multiple and Concurrent Partners in Malawi, not
only shows the presence but institutionalisation of sexual practices that are based on
concurrent and multiple partners.
Going Against the Constitution Grain
Arresting prostitutes on the basis of them being idle and disorderly, when the
Constitution grants everyone freedom of movement (39), does not make much sense.
If someone is of the opinion that they want to have sex with multiple and concurrent
partners, Malawians need to remember that the Constitution grants freedom of
‘opinions without interference to hold, receive and impart opinions’ (34). It also gives
people the right to belief and thought (33) and if one’s belief on sex is one that is anti-
8
monogamy, is polygamous and other versions of sexuality, their rights is guaranteed
of in the Constitution (35). Once again, the criminalisation of prostitution and sex
work resonates with morals of the Christian religion. But as argued above, this system
of moral code is an issue that Malawians differ on.
1.3 THE PRISONS ACT of 1966
According to the Laws of Malawi (Cap 9.02), The Malawi Prison Service is
established under The Prison Act of 1966. Under Section 163 of the Constitution of
Malawi, its task is to house, detain and rehabilitate incarcerated persons. One of its
objectives is to better the human treatment of prisoner and that includes addressing
the HIV/AIDS question.
Even though Malawi prison officials repeatedly Malawi’s print media has run several
stories that attest to the presence of men who have sex with men in Malawi prisons. A
good example is Lucius Banda’s testimony of the presence of MSM and
homosexuality after his stay in Zomba prison.2 Timothy Chirwa’s ‘Malawi Sodomy
Law, Constraints on Prisoners’ Access to Condoms and Implications on Human
Rights: Call for Provision of Condoms in Prisons’ (2010) eloquently demonstrates the
presence of MSM and homosexuality in Malawi prisons.
An analysis of the Prison Act, hereafter referred to as the Act, illustrates a very MSM
blind document. Since sexual minorities are a right, one would not want to see it as an
offense but given that MSM is criminalised in Malawi but there is proof it happens in
the prisons, one would have thought it would be in Part VI, Discipline of Officers
and/or Part XIV Discipline of Prisoners but both parts have do not have it.
Part IV deals with duties of medical officers and given the extent of
HIV/AIDS and MSM in our prisons, one would expect that they mention it in that
section as that would make it mandatory for the authorities to ascertain the provision
of condoms for the inmates. The importance of Malawian prisons making condoms
readily accessible to prisoners, is underlined by the process that led to two male
Malawian prison lovers being arrested and charged in 2011. According to Nation on
line of April 2011, one of the men was found with sperms on the anus and he
confessed to being in love with a male inmate and having anal sex with him on
several occasions. This means condoms and lubricants are materials that should be
readily available in prisons of Malawi. The act does not even mention the presence of
such medical issues later the need for adequate provision of necessary provisions such
as condoms. What is surprising is that according to the National HIV/AIDS Policy3,
the state is ‘enjoined to ensure hat all men, women, young people including people in
prisons’ have condoms at any time they one (My emphasis). If the Prison Act is the
main way for prisons to improve the lives of prisoners in Malawi, it has to make sure
it clearly provides for processes and personnel that provide prisoners with condoms
and dental dams (oral sex barriers).’
Not recognising MSM and homosexuality in Malawi prisons, when there is clear
evidence that is it is happening, is violating the human rights of men who have sex
See Nation on line Saturday 16th April, 2011. ‘Two Malawian Male Prison Lovers Arrested’
http://www.mwnation.com/index.php/national-news/17900-two-malawian-male-prison-loversarrested.html. Retrieved 20 February, 2012, 17.41pm.
3
See HIV/AIDS AND Human rights in Malawi (Pretoria: Center for the Study of AIDS and Centre for
Human Rights, University of Pretoria, 2004), p51)
2
9
with men and those that are homosexual. Not distributing condoms not only heightens
the risk of those infected but that of those who are not yet infected. It actually
prevents the prisoners from enjoying a good number of their rights. We need to
remember that human rights are inalienable and universal.4 Prisoners, according to
Gabriel Masangano v The Attorney General et al, prisoners are entitled to their basic
and fundamental rights (qtd. in Chirwa 9). They have the right to,
 Health
 Life,
 be free from discrimination
According to Chirwa (2010), the lack of provision of condoms in Malawi Prisons is
an issue that courts in Malawi can be moved to grant relief on, it is justiciable5.
Chirwa cites examples from England amongst others.
In Conclusion, it is clear that the Prison Act is in acute denial of the MSM and
homosexuality that happens around inmates. If it is to achieve its goals, it has to
acknowledge MSM and structure a response to a sexuality that is a real and is part of
it. Evidence abounds that MSM and HIV/AIDS are major parts of prison life in
Malawi. An act that is the basis of Malawi Prison Services and purports to be the
engine of improving the lives of prisoners in Malawi should not deny MSM, unless it
is a tool to perpetuate the death of prisoners living with HIV/AIDS.
A review of the legal documents engaged above illustrates that the Malawi
Constitution is liberal and democratic document– what is says is that people should
not be stopped from doing what they want to do because someone does not like it. So
to a large extent, it aims to protect minorities and make sure that the freedom of one
begins from where the other stops. The Penal Code is the one that is bent on ascertain
that the majority oppress the minority especially on issues of sexuality, spearheaded
by the sodomy laws.
2.0
POLICY DOCUMENTS RIVIEW
2.1
THE MALAWI POVERTY REDUCTION STRATEGY
If one is to sustainably map HIV/AIDS intervention strategies for sexual minorities in
Malawi, The Malawi Poverty Strategy Reduction Strategy (MDGS) is one of the
documents they have to critically interrogate. This is because this is the ‘overarching
operational medium-strategy for Malawi designed to attain the nation’s Vision 2020.
It is the major route map for Malawi’s attainment of the Millennium Development
Goals (MDG).
Whilst the MDGS identifies HIV/AIDS as one of the key six areas in need of
attention if Malawi is to overcome the multidimensional challenge of poverty, it
evidences a serious denial of sexual minorities in Malawi, especially that of MSM.
Commercial sex workers are minimally mentioned and even then, their engagement is
not nuanced.
It is very telling that under the section on ‘HIV and AIDS Prevention and
Management’, it does not define the pandemic as a human rights issue. It also does
4
5
Vienna Declaration and Programme of Action 1993)
see the Gable Masangano v The Attorney et al case qtd. in Chirwa 2010.
10
not identify the criminalisation of sexual minorities in Malawi, yet those groups are
high risks in terms HIV/AIDS. This criminalisation impacts HIV/AIDS prevention
and management but the MDGS is mum on this issue. Consequently, data of sexual
minorities is missing, even the fact that that data is absent is not there, thereby
effecting a total blackout on the issue of sexual minorities and HIV/AIDS prevention
and management. This blackout can be traced in the chronicling of Malawi’s
response. As a result, the way Malawi has responded to this pandemic in terms of
sexual minorities like MSM and sex workers, falls out of the HIV/AIDS discourse and
agenda. It is not surprising that it is absent on the list of challenges.
In this section, the MDGS states that its goal is to ‘prevent further spread of HIV and
AIDS and mitigate its impact on the socio-economic and psychosocial status of the
general population and high risk group (26). Given the glossing over sex workers and
total absence of MSM and other sexual minorities, the next section entitled ‘Mediumterm Expected Outcomes’ becomes lines documenting wishful thinking. One cannot
expect to stop the bleeding when one major leaking hole is not even identified so that
it can be closed. There are no prizes for guessing that in the strategies, there are no
plans to produce, enact and enforce HIV and AIDS legislation for sexual minorities.
This group does not exist in this document. The document is in denial of the presence
of MSM in Malawi and how sexuality other than heterosexuality impact truly
comprehensive HIV and AIDS interventions. The link of poverty, sexuality, gender
and identity, how all that speaks to HIV and AIDS IS an issue that falls of the radar.
Another issue that needs a document as crucial to the livelihood of Malawi in the era
of HIV and AIDS as the MDGS, is that of HIV/AIDS, Nutrition and Sex work. When
the policy tackles the issue of labour, it does not engage sex work as a profession.
This means the policy closes the discourse on HIV and AIDS and those whose work
involves selling sex as heterosexuals and homosexuals, for commercial purposes. The
link of sexuality, identity and HIV/AIDS is something the document needs to
interrogate if the document is to really be an overarching operational strategy. When it
talks of recruiting personnel of HIV and AIDS, it must clearly demonstrate that
engage specialists of minority sexes so that their needs are strategised towards.
The way the MDGS treats HIV and AIDS can also be read in its gender section. A
critically analysis of this section illustrates a policy that does not treat gender as a
fluid category but a static one made up of the two sexes on two polar opposites. It
does not treat gender as a continuum who classification points meet at a certain point
thereby giving room for the presence of intersexed, transgendered, lesbian, gay and
bisexual people. The way gender is treated in this policy does not bring out the power
relations that are skewed against women. The policy operates from a gender parity
perspective, a position that does not explain why it is only women who are called
prostitutes in Malawi when prostituting involves both men and women. The local
word for these women is derogatory and often used to policy women’s sexuality. The
researcher has experienced this first hand and evidence abounds in popular songs.6
It is clear that the MDGS suffers from an acute denial of the presence of sexual
minorities, especially MSM in Malawi. Its treatment of sex workers, the only sexual
minority it mentions does not enable the strategy document to engage sex workers in a
6
see Kabwila Kapasula in (ed) Shehu. Gender Sport and Development in Africa 2010 and forthcoming
(OSSREA) paper that critics Malawi’s use of gender as a category in development policy documents ‘Doing
‘Gender’ Cannot Improve Malawian Women’s Lives: A Critical Assessment of the Malawi Growth and
Development Strategy treats the genders, http://pantondo.blogspot.com/,
11
way that understands the moments that produce them as workers, women and people
at a high risk of HIV and AIDS.
2.2
MALAWI NATIONAL HIV/AIDS POLICY
If one critically analyses the s of the Malawi National HIV/AIDS policy (2003),
aiming to, identifying how it impacts the implementation of HIV and other Health
related interventions for men who have sex with men (MSM) and sex workers, one
finds it wanting on many grounds. In many ways, its HIV/AIDS prevention
strategies do not focus on sexual minority groups that epidemiological evidence
shows are at higher risk specifically, men who have sex with men and sex workers.
Even though the policy starts of by underlining the HIV/AIDS is one of the major
challenges facing the country, sexual minorities do not feature anywhere in the
introduction be it at background and/or context levels. For example, the history of
HIV/AIDS excludes any data on prisons and HIV/AIDS in Malawi. The fact that
Eastern and Euro-western organised religions influence what is called the Malawian
culture and religion, people’s lifestyle and the choices them make on issues
concerning sex, are laid bare (6).
The Preamble binds the policy to pursuing its goal:
To prevent HIV infection as, to reduce vulnerability to HIV , to improve the
provision of treatment, car and support for people living with HIV/AIDS and
to mitigate the socio-economic impact of HIV/AIDS on individuals, families,
communities and the nation (6)
in ‘accordance with the Constitution of Malawi and existing international human
rights principles, norms and standards’ (6). The policy commits itself to advancing a
comprehensive public response to HIV/AIDS
Promoting and protecting human rights in accordance with the Constitution
and international human rights instruments to which Malawi has committed to
effectively address the social, political economic factors that both increase
vulnerability to HIV infection and negatively affect the lives of people living
with HIV/AIDS (7).
Under the multisectoral Approach and Partnerships, the policy recognises that an
effective response to HIV/AIDS requires the active involvement of all sectors of
society (7). It identifies sex workers and ‘persons engaged in same sex sexual
relations’ (8) in groups of people suffering from discrimination which makes them
vulnerable in the context of HIV/AIDS (8).
Cosmetic Minimal Engagement
The problem with the document is that its mention of sexual minorities is rather
minimal and cosmetic. Compared to other vulnerable groups, for example women as a
category, MSM and Sex workers are mentioned very briefly. In several instances, the
document lumps the vulnerable groups together, preferring to isolate women and
young people. This ends up creating an impression that the few times sexual
minorities are mentions are for window dressing, to satisfy international donor
requirements. There is no sustained, committed attention paid to sexual minorities. As
a result, the do not attain a personhood in the document, they remain appendages that
are more of a ‘by the way’ than an intended target of analysis. For example, sexual
minorities are not clearly mentioned in the section on policy statement on whom
government will ensure they have effective participation. Women are mentioned (9).
12
In Chapter three, a section on prevention, treatment, care and support and impact
mitigation, education on sexual minorities is excluded. It is also left out when it
comes to psychosocial support. Given the role that religion plays is issues of sexuality
in Malawi, this section would have benefited the nation if it engaged the impact of
Christianity and Islam on sexuality in Malawi, how that impacts HIV/AIDS
prevention strategies. After all, according to the United Nations General Assembly
65th Session Agenda Item 10, ‘Political Declaration on HIV/AIDS: Intensifying our
efforts to Eliminate HIV/AIDS’,
Although HIV/AIDS are affecting every region of the world, each country’s
epidemic is distinctive in terms of drivers, vulnerability, aggravating factors
and the populations that are affected, an therefore the responses from …
countries themselves must be uniquely tailored to each particular situation
taking into account the social context of each country concerned ((2011, 2).
For Malawi, the impact of the Christian religion is an issue that requires to be clearly
interrogated. It speaks directly to the way sexual minorities are treated in our policy
documents. It also is crucial to unpack if one is to design and implement HIV/AIDS
interventions that can truly reach MSM and Sex workers in Malawi.
Chapter five adequately underlines how the policy pays lip service to sexual minority
rights. Considerable attention is paid to women as a vulnerable group but sexual
minorities are just mentioned inside two sentences (19). MSM are not mentioned
under prisons (22).
Section 5.10 deals with ‘Same Sex Relations’. Whilst it is good that the policy
recognises this group, the way it engages the group defeats the policy goals because it
is very minimal. Unlike the other sections that nuance the groups they are dealing
with, it is very generic, ensuring that Government and its partners
put in place mechanisms to ensure that HIV/AIDS/STI prevention, treatment,
car and support and impact mitigation services of this vulnerable group’ (23).
The policy does not mention lesbian, bisexuals, transgendered, or intersexed people. It
goes on to permit the Army, Immigration, Prisons and Police carry out HIV testing as
part of their pre-recruitment and periodic general medical assessment for fitness.
Privileging Christian Monogamy
Given the Christian background of monogamy in Malawi, it is important for the
policy not to give the impression that monogamy is the answer to HIV/AIDS
prevention because one could argue that monogamy, given the practice of extra
marital sexual relations is more dangerous than polygamy. Research needs to be done
to establish this before the policy says out rightly that it will ‘encourage monogamous
marriages’. Marriage, which in most postcolonial African communities is patriarchal,
peddles a lot of gender and sexual oppression. The institution of marriage is
something that feminist research has shown to be at the heart of the a lot of the
oppression of women and various forms of sexual minority groups. The Christian and
Muslim marriage actually draw the marriage contract on the basis of power relations
that are skewed against women and this plays a role in the definition and performance
of gender and sexuality. The category woman and wife is defined on subservience, a
role that impacts why and how one has sex. These patriarchal definitions of gender
impact how a society views and sanctions sex and sexuality. So by sanctioning
monogamy, given the religious climate of Malawi, the Malawi National HIV/AIDS
13
policy mainstreams and privileges the indigenous and colonial forms of patriarchy
that unite to oppress sexual minorities.
Attack Religio-Homophobia
Given the prevalence of Christianity and Islam in Malawi, when the policy traditional
and religion leaders, the homophobia and its impact on HIV/AIDS is an issue that
needs to be brought up convincingly. This is an issue that is closely linked to the way
sexual minorities behave and how they can be engaged on HIV/AIDS prevention
strategies.
Dehumanising Sexual Minorities
The denial and reductionist manner with which sexual minorities are engaged, makes
the policy dehumanise sexual minorities like MSM and sex workers. Categories of
vulnerable groups like women are treated in a way that not only gives them a human
identity, attention is paid to engage the day to day activities and experiences that
make them vulnerable to HIV/AIDS. The laundry list approach employed on sexual
minorities, makes the policy treat them as a static rather than people who have
fundamental rights to health amongst other rights. If one listens to programs on
HIV/AIDS propelled from this policy on heterosexual sex, it is evident that NAC is
aware that one cannot curb HIV/AIDS without taking the trouble to understand the
vulnerable groups as human beings and enter their life spaces. HIV/AIDS intervention
strategies do not just call for people to stop a certain practice, through popular culture
and many other tools, they engage everyday spaces and times that produce the
practices. This is not done for sexual minorities because they do not even attain a
human status in the policy. It is not surprising that bill boards, radio adverts or
popular songs do not directly address any of the sexual minorities as a vulnerable
group.
Not Engaging Criminalisation
The policy does not engage the criminalisation of sexual minorities like MSM in
Malawi. This is very unfortunate especially when one considers NAC’s knowledge of
the role that criminalisation of a practice plays in propelling infections and crippling
HIV/AIDS interventions. No where in the policy is criminalisation of some high risk
HIV/AIDS groups mentioned. As a result, the policy not only fails to whistle blow on
this criminalisation, it also fails to help the country engage this criminalisation,
something it would have a chance of doing if it at least registered and admitted it.
That would help the policy chatter ways to reach those living with HIV/AIDS who are
criminalised and open avenues to debate the wisdom or folly of the criminalisation.
NAC’s view
The researcher interviewed NAC officials regarding the review of their policy
documents. I spoke with research officials and the Executive Director. NAC stressed
the importance of them understanding the minority groups before one can engage
them. They said they needed to who these people are the spaces they occupy. This is
not easy to do since they are not legally recognised. They said they are conducting
studies to understand them. They have just finalised a study on sex workers, which
they shared with the researcher of this study. They say they used the size estimation
method to do this study so that they can capture and recapture the figures of the study.
Such reports will help to document the numbers of these sexual minority groups. Up
until now, they have been hearing anecdotal comments about the groups. They are
14
understudying them and there is another study on MSM in the pipeline, results are
about to come out.
They also underlined that MSM was rather problematic to handle because it had come
from a volatile part of the nation, insinuating that it is an issue that is linked to donors
and foreigners. They however repeated that NAC has a mandate to provide public
health facilities even to people in prisons so it does not judge people.
Conclusion
In general, the policy does not recognise sexual minorities as human beings in Malawi
who therefore have rights. The minimal attention paid to some of the sexual minority
groups them fail to attain a human identity. The policy is in denial about about MSM
more than sex workers and other sexual minorities. There is need for an overt human
rights approach to engaging MSM and Sex workers in the Malawi HIV/AIDS Policy
if it is indeed to be comprehensive and successful in its goals.
3.3
REPRODUCTIVE HEALTH POLICY (2002)
Sexual Reproductive and Health Rights (SRHR) is a relatively new concept globally.
It was first mentioned at a conference in Tehran in 1969. They were also engaged in
the 1985 Nairobi conference called “Forward Looking Strategies”. For SRHR to be
clearly recognised and put in black and white, it was in 1994 at a conference on
population and development. SRHR gained prominence at the 1995 “Fourth World
Conference on Women”, the famous Beijing conference. There, it was emphasised
that a person needs to be free to get sex in the way they want, free from violence.
SRHR have been recognised internationally. They are enshrined in the rights to
liberty, right to health, which ensures that government takes steps to make sure people
are healthy. The Malawi Constitution binds Malawi to observe SRHR. It is the
supreme law of the land. Malawi also committed to 1964, 1969 laws made earlier.
What had happened in foreign case law also guides us. Section 211 of the
Constitution, outlines the importance of respecting international agreements. A good
example is the Gable, Masangwi case.
Comprehensive Reproductive Health in Malawi is implemented in ways that conform
to the recommendations of the International Conference on Population and
Development (ICPD) held in Cairo, Egypt, 1994. ICPD defines Reproductive Health
(RH) as
A state of complete physical, mental and social well-being and not merely the
absence of disease and infirmity in all matters related to the reproductive
systems and its functions and processes (qtd. in Reproductive Health Policy
2002, 1).
RH therefore means in Malawi, people should
be able to have a satisfying and safe sexual life and that they have the
compatibility to reproduced and the freedom to decide if, when and how often
to do so. In addition RH is defined as Health as part of RH and included
healthy development, equitable and responsible relationships fulfilment and
freedom from illness, diseases, disability, violence and other harmful practices
related to sexuality (1).
This means Malawi Reproductive Health Policy (RHP), recognises that the scope of
RH goes way beyond physical well being but must be holistically to include the
15
mental and social well being of a person. The policy admits that in Malawi, as in all
countries that have adopted recommendations of ICPD, everyone who is a person has
the right to have the kind of sex that satisfies them. They also have the right to have
sex or not to, have it for procreation or not. This makes one fail to understand how
that very country criminalises sex that is done through the anus. It is as if we give
with one hand and take with another, the contradiction is glaring.
In ‘What is Violence’ (1975), Arblaster eloquently describes as violent, policies that
construct harm and destruction at personal and collective human levels, be it through
declaring people non existent, inferior or demonising them. The RHP states clearly
that it aims to ascertain that give people freedom from violence related to sexuality.
But, we have seen the policies and laws analysed above, criminalising and denying
the existence of sexual minorities in Malawi in many ways. This is a form of violence
on the sexual minority groups especially when one considers that the criminalisation
and denial produces a lot of physical, mental and social unhealthiness/diseases.
Criminalising a practices, especially one closely linked to HIV/AIDS like anal sex,
makes it difficult for institutions and processes to reach those living with HIV/AIDS.
It pushed MSM more under the table and makes the HIV/AIDS interventions harder
to reach men who have sex with men.
If one examines the components of RH in Malwi, you find that issues concerning
gender and sexual minorities are missing. Patriarchal sexual relations, human
sexuality and (minority)sexual rights are missing. When considers that data coming
from the ground, the patriarchy in most Malawian communities (Tizifa 2003, Kabwila
Kapasula 2010), what is happening in the prisons, sex workers and the growing
debate on homosexuality, it is not surprising that recent surveys show that ‘the status
of Reproductive Health of Malawians ranks among the lowest in Sub-Saharan Africa
(RPH 2). The components of RH do not speak to the systemic issues that inform the
fibre of RH in Malawi. Sexual minorities are not identified in any way.
Diseases that are pertinent to sexual minorities such as MSM or sex workers are
absent in the objectives of the RH programme. None of the objectives support the
principle of right of someone to choose the kind of sex they want. This could be done
by some of the aims focusing on sexual minorities. The policy mentions that ‘SRH
services shall be provided to those with disabilities’. Such direct and visible inclusive
helps generate policies to engage the disabled. The same is not done for any of the
sexual minorities. They are not directly engaged.
What the policy says concerning family planning and safe motherhood is very
pertinent in the discourse of sexual minorities and HIV/AIDS interventions in
Malawi. This is because one of the main arguments used against homosexuality and
sex work is that sex is for procreation and it should happen in marriage. It is worth
pointing out that nothing is said about a person having a right not to have children or
to have sex at all, be it hetero or homosexual. The policy emphasises that one is
allowed to have any number of children they want. Ordinarily one would think silence
on celibacy as a right means the right is observed but when not having one kind of sex
is actually criminilised based on a formular of having the other type, I believe it is
imperative that the right not have sex at all is an issue Malawi has to engage. After all,
the homosexuality debate shows a good number of us in support of government
prescribing the type and functions of sex citizens should have in Malawi. The section
16
on HIV/AIDS/STIs does not mention any of the sexual minorities, no MSM or sex
workers. Prisoners do not feature at all.
Just like the policies analysed above, the RHP is in denial of sexual minorities. It does
not even just mention them, later on engage them meaningfully in its quest to provide
reproductive health in Malawi.
2.4
NATIONAL YOUTH POLICY
Currently, over half of the population of Malawi is below the age of 25. This means
Malawi is a youthful nation state today and tomorrow. A policy on the youth in
Malawi needs to be engaged is one is to embark on any HIV/AIDS interventions. A
policy on the youth provides a framework for their participation in development and
accessing services at different national levels.
The youth are defines as young people, female and male, from the age of 14 to 25
years. Already, the policy treats gender not a social category but a static biological
one that does not recognise that some youths are intersexed or transgendered like
South Africa’s Caster Semenya.
The policy begins by identifying the challenges of the youth of Malawi and just like
the other policies, there is not challenge related to sexuality for example being of a
minority sexual orientation. HIV/AIDS is identified by it is not linked to sexuality in
any way. In the values, respect citizens regardless of rage, age, gender, socioeconomic
status are identified but not sexual orientation. Sexuality is featured in family life
education and Counselling but it does not engage sexual minorities. It can easily be
read as heterosexuality especially when you consider that the policy calls on religious
organisations to motivate and encourage the youth of Malawi in social services,
recreation, sports and culture.
The policy engages the issue of culture in its discourse on the youth. Even though it
talks of Malawian culture being diverse, sexuality is not brought up under culture so
that one can bring up the question of diverse sexuality. One knows that it defines
culture as a static entity when it talks of preservation. The latter word reveals that the
policy is not looking at culture as a dynamic entity that changes and is being defined
from the privileged position of those who are in power and are producing whatever it
is we call the ‘Malawian culture’. Culture is defined in terms of dances, games, arts
and crafts. It is not defined in terms of lived experiences of minority voices but the
history that privileges those producing the nationalist project. When the policy
identifies priority target groups, not even one sexual minority group is part of the list.
In this age of technology, there is not talk of cyberspace groups even though we know
the youth now spend more time with gadgets more than without. Gadgets are
increasingly becoming a way of life. There is no group of youth living with
HIV/AIDS.
As in other policies, even though Malawi is a youthful nation and HIV/AIDS is a
huge problem, the youth policy does not engage the sexual minorities issues. Oral
interviews with sex workers and MSM show that their members are getting
increasingly younger. But, the policy on the youth is in utter denial of sexual
minorities.
17
2.5 TOWARDS A CULTURAL DEVELOPMENT POLICY
It is very important to engage a cultural policy in the discourse of HIV/AIDS
interventions and sexual minorities in Malawi. However, Malawi does not have a
cultural policy. National Archives in Zomba reported that there is a document in the
works to that effect but it has not been passed by parliament. An analysis Charles
Phillips’ ‘Towards a Cultural Development Policy’ (1982) shows that pre-democracy
dispensation Malawi, defined culture in very static, materialistic and politicised ways.
Philips’ document is irrelevant for this study which focuses on contemporary Malawi.
3.0
ISSUES IMPACTING HIV/AIDS INTERVENTION
FOR SEXUAL MINORITIES
Oral interviews of stakeholders in the discourse on legal and policy documents on the
issue of HIV/AIDS intervention of MSM and Sex workers largely supported the
foregoing legal and policy documents review. New issues also emerged. One issue
that emerged, straddling and underlying the legal and policy documents review, was
the question of homosexuality being a Malawian or Euro-western, borrowed or owned
practice. Specialist views of lawyers, historians and sociologists were consulted on
the issue.
3.1
Is MSM and Homosexuality Malawian? – A Specialists Debate
The Natural Argument
A Historian argued that homosexuality is part of human nature. It is experimentation
with one’s body and peers. If most men are honest, they will accept having touched
their parts or having their penis touching the anus of a male peer. The interviewee
reported that reports of such acts are widespread in Malawi, it is just that people are
secretive about it. What needs more research though is why some persist with this
practice whilst others stop. Speculation is that the men who get exposed to the
opposite sex, if successful, lose appetite for same sex but that is just speculation.
Rise and Entrenchment of the Penitentiary/Prison
The Historian went to argue that homosexuality in prisons in Malawi is an issue that
has received a lot of attention in research but it has not been unpacked. There is need
to establish if it is brought into prison from outside or is it an internal development.
The rise of the prison as punishment predates colonialism. There forms of holding
hostage as punishment but this definitely gained ground during colonialism. Indeed,
the rise of the penitentiary is close to the subjugation methods. ‘Fucking someone in
the buttocks’ has been an instrument of subjugation of the black race historically,
when one examines colonial discourse on prisons. ‘Fucking someone in the ass’ was a
form of inferiorising someone. It was a product of power relations. It was encouraged
by the white masters as a way of showing who is boss. Readings of the rise of the
prison shows that national liberators after being arrested, were put into prison and
‘fucked in the ass’. This was the ultimate symbol of being subjugated. Literature on
subjugation shows that the act of the men being penetrated by the police, the white
master, was seen as punishment. This is also evident in literature on race relations in
18
the US for example the rape of Derrick Vinyard in American History X (1998)7. The
subjugation takes on class and race dimensions characteristics of liberation
discourses. It now becomes an entrenched prison culture. In Malawian prisons, we see
the Nyapala8, taking on the power of the master and performing the power on the
prisoner. This is the context of prison homosexuality in Malawi. This view is
buttressed by an interviewer who is a prominent human rights defender. She has been
doing interviews on this issue in prisons and she stated emphatically that a Malawian
Policeman once told her on his way to arrest a man who was said to be very
dangerous:
Timugwila ameneyo, ndipo tikamugwila, akakhala nkazi
We will arrest him, and when we do, he will be a woman/wife.
This meant that that they will ‘fuck him in the anus’. An interviewee stated that when
asked about the issue of homosexuality in prisons, one of the guards told the
interviewee that one of the reasons they had become a prison officer was because of
being homosexual themselves.
Migration Labour
Charles Van Onselen argues that rise of homosexuality in Southern African countries
like Malawi is closely linked to the history of migration labour. He argues that social
relations that emerged at the point of production need to be interrogated critically.
These create social relations that define the context of the emergence of
homosexuality. People who went to work at the mines left women behind but they
needed sex. One might argue that their needs were met by prostitutes but, there is
need to factor in the creation of compounds at the mines. The latter were closed male
accommodation units. So homosexuality emerged as a way of dealing with what
Onselen calls ‘emotional peaks and troughs’. Sexually starved men ironed out their
emotional and sexual issues and this is connected to the social reproduction of labour.
Human being always need and find ways to recharge their labour. This could be
through good, leisure, sport amongst other tools. That is why we find places like bars,
restaurants and so on and so forth, where ever there is a point of labour production.
Onselen’s theory links back to the fact mines were a very violent place. The structures
of control were heavy. There was patrolling and other ways to control people. The
amount of social violence was very high and once gain, ‘fucking someone’s ass’ was
a way to feminise and degrade them. It was a way to inferiorise and emasculate them.
Prisons in such a place were also very violent and homosexuality was a way for white
elites to inferiorise and make the black man docile. It was a way to remove a black
man’s militancy once they are arrested. Miners also transferred this to each other
under sexual pressure, in the absence of women. One could ask why anal sex in
particular was seen as a way to inferiorise a black man, research has shown that the
belief was that the anus is where ‘shit’ faeces come from and if someone can ‘fuck’
you there, that is the ultimate humiliation and punishment, confirmation of your being
7
Derek Vineyard is paroled after serving 3 years in prison for killing two thugs who tried to break
into/steal his truck. Through his brother, Danny Vineyard's narration, we learn that before going to
prison, Derek was a skinhead and the leader of a violent white supremacist gang that committed acts of
racial crime throughout L.A. and his actions greatly influenced Danny. Reformed and fresh out of
prison, Derek severs contact with the gang and becomes determined to keep Danny from going down
the same violent path as he did. http://www.imdb.com/title/tt0120586/plotsummary. Retrieved 22
February, 2012. 14.52pm.
8
Vernacular word for the leader of inmates in cell. He is the head of the leadership ranks that develop
in prison.
19
subjugated. Also, it was believed that the only anus visible to the world is that of a
child and if one can see that of an adult’ then that adult has been made a child,
infantilised.
A Malawian Sociologist’ View
When asked if there is MSM and Homosexuality in Malawi, especially since many
Malawians argue that homosexual is unMalawian, the following is the reply I got
from a Malawian sociologist. He replied by saying,
‘That is nonsense. If you consider homosexuality as deviance – it is part of
every society. Malawi and societies in Malawi are part of a global village. If
you say homosexuality is not Malawian, what exactly do you mean? It is the
same as saying English is not English, after all, English is being spoken by the
Chinese, Malawians etc. What does that mean? There has been so much
interaction between cultures and societies. Certain things cannot be said to be
unique to one group of people. Is homosexuality then British, Indian or
American? Homosexuality is an aspect of human interaction, unless you say
Malawians are not human. Heterosexuality and homosexuality are both
products of human interaction’9.
The specialist in societal interactions went to historicise homosexual behaviour in
Malawi. Prisons and prisoners are not importations from Europe or America.
Prisonership is a Malawian concept. We have concepts of mphala, gowelo – where
boys stay together without women. We have had girls secondary schools, boys
schools and there have been reports of homosexuality. The students did not meet
foreigners there. Girls who are lesbians in Malawi did not meet foreigners who taught
them lesbianism there. In such places, media is controlled, there is no television,
censorship is very strong. But, it was and is happening. We even have cryptic songs
that describe local practices. MSM is just like masturbation, can we then say
masturbation is unMalawian? Deviance is a way that society changes.
The researcher also interviewed a specialised who had done research using snowball
sampling. In one month, the research brought out 100 MSM only within the Southern
region – BT, Mangochi, Ntcheu. It was within a limited time, funds and geographical
space. But we came up with that sample. This is very significant because in this kind
of sampling, you follow the core that is identified and then the ripple effect that comes
up as they identify others and the others connect to others too. It is a geographical
progression. It is ideal if the research is able to follow all the connections identified.
What is clear is that with more time, we can identify a much larger sample. The
hundred people who were identified are all Malawians. A third were graduates, over
secondary school level. It is important to mention that being a graduate does not mean
being brought up out of the country. It also has to be pointed out the snowball is a
biased sample because it starts from the eight and works by building on them so if the
eight are graduates, changes of a good number of the rest being graduates too are very
high. There were also the rural poor in the sample.
In Malawi, the anti-homosexuality often invokes culture as the basis for denial,
condemnation and criminalisation. People are more concerned with what many call
9
Interview was done 11 January, 2012, English Department, Zomba. 5 to 7pm.
20
this ‘Malawianess’, lagelling homosexuality unMalawian. But, homosexuality is not
something that is a cultural trait. In other words, it is not something that fathers teach
sons, it is not transgenerational. If that is the case, how do people whose fathers were
not prisoners become gay. The same applies to people who were not prisoners during
colonial days, people whose fathers were not prisoners. Historians might say these
experiences were copied over time. But, research shows that the age at which those
who say they are gay in Malawi knew their sexual orientation is below the age of 14.
This is the time when people start to discover their sexuality and attain sexual
recognition. Heterosexuality can be learnt, it is a transferable cultural trait. Rate of
homosexuality could have gone up during colonial times but it is not the source of the
practice.
Sociology is concerned by mainstream norms and values. A Mainstrean norm is
heterosexuality. When people do not achieve success in mainstream norms, they set
up other norms and values. The separation of sexes, the sexual distinction traumatises
some people when they mix up, if they grew up in separated contexts. We cannot hug
our sisters, when you try to approach a girl for the first time, it can be traumatic. This
can produce withdrawal. A goon number of MSMs that ere interviewed claimed
MSM was a natural practice but the specialist interviewed said one has to ask if men
who have sex with men are the right source of such information. They argued that
most MSMs lacked the last straw to become MSM, just like a relative who leaves
home for town will not accept it is because of poverty.
Is Christianity the reason for the Homosexual/MSM denial?
Many specialists, including human rights activists were asked if Christianity is the
underlying cause for the denial and MSM and homosexuality in Malawi? Some said
there a genuine belief by people of morality. But there is no universality of belief on
homosexuality in Christianity Malawi. Desmond Tutu takes a liberal view on this
issue. So invoking religion is not an acceptable way to look at this issue. There is no
one Christianity, religion talks of repenting, not you should kill those who sin etc.
Hypocrisy of Malawians – Bestiality
This interviewee argued that Malawians are hypocritical because that very police man
mentioned earlier, stated that there was bestiality in Malawi and to prove it, he said
there was a chicken that had been ‘fucked by a man.’ She said she had seen the
chicken being moved around with at the station. What baffled the human rights
defender was how we [Malawians] do not reject bestiality as unMalawian, but have a
problem with two people having sex with each other. She argued that people hate
anything new. The same thing happened with gender and feminist issues. People like
her have even been labelled male when they are female, just to discredit who they are.
Interviewees asked why there was such talk against MSM when we had Malawians
being arrested for trafficking human body parts, what is worse? We have had men
chopping off women’s hands, doing all sorts of violence against women. They asked
the researcher which is worse, homosexuality or such life threatening acts.
Scapegoating Religion
Malawi is a rigid society and Malawians like to use the bible as a scapegoat. What is
interesting is that homosexuality can be found in the bible. An Christian human rights
activist argued that If God wanted to punish and end it, Malawians should let him do
21
it himself, not to do it for him, why help him? The activist stressed that they knew that
there is MSM and lesbians in Malawi but many people want to deny it in Malawi.
There is no doubt that homosexuality and lesbianism is Malawian. She fortified the
truth of her statement by citing a song that used to be sung in her home area (village)
when she was young:
AMangaliza pitauko
AMangaliza[name of a lady] go there
Tikakumane kuchitsime eeh!
Let’s meet at the well eeh!
Tikanyulane chapanchombo eeh!
We squeeze each other’s bellybutton
Interview of a Chanco Media Class on MSM and Lesbianism in Malawi10
The researcher interviewed a Chancellor College fourth year media for development
class on the presence of MSM, lesbianinism and homosexuality in Malawi and
campus. A student reported that there is a woman in Area 18b Lilongwe, who wears
men’s clothes and dates women only. They gave her name. One student confirmed
that there are lesbians and several MSM in Chanco A student reported that she
actually saw two males having sex at the law department, one was ‘scared and
nervous’ but the other one was very confident about it. One was a ‘Yo, wothelatu’
wina ‘Tradi’11. Apparently, there was a gay student who graduated and is now
working for MBC. One man went to confess at one of the Pentecostal churches. He
said he used to pick form one students and children to have sex with, while at high
school. He continued this ‘sin’ whilst in campus. He said he had stopped. In the
confession, he confirmed that are gays in Chancellor College They are just afraid to
come out. There was report of a member of staff who was gay and proposed students
in the class of one of the students.
After hearing all these testimonies, especially views from specialists, I decided to hear
from the horses mouth, men who have sex with men who are homosexual or gay.
Please note that the focus group discussions held with MSM and sex workers not only
engaged the question of is homosexuality Malawian and whether it is really
happening in Malawi, it raised other issues that buttress the review of the legal and
policy documents that has been done above.
3.2
From the Gay/Homosexual MSM Horse’s Mouth
Two groups of MSM in Malawi had a focus group discussion with the researcher.
They confirmed the presence of MSM in Dedza12 (about 10) and (at least 100)
Mangochi. The Mangochi group underlined the presence of MSW but the Dedza one
English Language Lab, Chancellor College. January 12 2012. MFD 431 ‘Sexuality in Malawian
Media’.
10
11
Yo, from the African American slang word Yo man! Refers to a social class of males (boys) who are
deemed to be well to do and usually put on American, often basketball attire. They are seen as ‘been to’
or with parents that have been abroad. Tradi refers to boy and girls who are behave and dress in what is
deemed Malawian, basis attire and they usually come from economically challenged backgrounds and
speak chichewarised English unlike Yos who often speak Americanised/European accented English,
what is usually called speaking from the nose.
12
Apparently, Danka did a research in 2011 that has more accurate figures.
22
said they had not met or heard of any. The Mangochi group cited an example of
WSW, a couple that recently moved from a place called Makawa (Mangochi). Some
of the people interviewed were not only MSM but HIV and AIDS councillors and
they confirmed that MSM that they were aware of, were a mixture of the youth and
adults; students and working class; Muslims and Christians, people of the major
political parties in Malawi, literate and illiterate. In Dedza, the average age of
members was said to be twenty to thirty.
When asked if MSM is a western concept, they emphatically rejected this view,
arguing that it is natural, an inborn sexual orientation. One of them gave an example
that when there were young, they used to get wet dreams of a man, not a woman, yet
they are male. The respondent added that they had never been out of Malawi and one
chimed in to add that the y had never had a foreign boyfriend and had not come into
contact with foreigners. They asked how foreigners can teach them how to dream or
be attracted to men’s genitalia from a young age.
One MSM respondent argued that they come from the Southern region and have
never been out of the country. They have never slept with a partner who is white or
foreign and have never been to prison. The researcher asked if maybe they learnt this
practice from an imprisoned uncle or some other relative and they vehemently refused
having such contacts. They argued that when they were a very young, ‘Ndimasilila/I
be very attracted(salivate) when I saw a man’s penis as they urinate. The respondent
narrated an event when they stood for a long time waiting to view the penis of a
handsome man, watch him till he put his penis back into his pants after urinating. He
says he grew up doing that and whenever he saw a good looking man, he would be
‘genuinely attracted, ndimasilila pakana akhale mzanga basi/I would be so attracted
to the point of making him my friend. I could not help myself, the responded added. I
would stop to gaze and admire, wishing they could fondle the penis of that man. The
respondent emphasized that they had always been like that, no one taught them to be
attracted to members of the same sex with them. He said despite his feelings, he never
acted on the feelings, got a lover till he got to high school. He was in boarding school
but he did not know how to ‘do it’ or approach people. Then when he was in form
four, he met a boy whom he got close with one night when he was escorting him from
his house, during school holidays. This person was a neighbour and after the first
sexual contact, when the respondent was asking what had just happened and surprised
with himself for doing what he had done, the boy gave him a list of neighbours he
occasionally had sex with. The list was made up of Malawians and there was no sign
of these Malawians having contact with western tourists. After this encounter, the
respondent gathered courage and started approaching people on his own.
Christianity and Homosexuality
One of the respondents is a Seventh Day Adventist Christian and when asked how he
makes peace of his sexual orientation since Christiantity is generally seen to label
MSM a sin, an ambivalent reply followed. On one hand, the respondent seemed self
determined when they cited they scriptures that say we are all created equal and this
includes men who have sex with men. On the other, they seemed disillusioned
because they questioned God why they created people like him if they did not want
them to do what they do. The respondent explained that when they are in church,
nthumanzi imandigwila/I get psychologically traumatised when the pastor talks of
Sodom and Gomorrah. Whenever that happens, he said he cringes and hopes the
23
pastor will not ‘go there’ that is, denounce homosexuality and homosexuals. He said
some pastors go there and when that happens, it really hurts him but then he asked,
‘what can I do, this is who I am’. This respondent explained that they once had a
girlfriend, trying to cure himself of the attraction to women but every time they had
sex, he would fantasise about a man.
We are hiding, How do Interventions find us?
When asked if the criminalization and demonization of homosexuality is impacting
MSM, participants of a focus group discussion made it clear that hiv and aids
interventions are designed with people like them in mind so they cannot relate to
them. After all, they are living in hiding so how can interventions find them?
Bisexuality
The focus group discussion made it clear that most of the MSMs in their area are
bisexual so they have wives and girlfriends. Interventions do not take the bisexuality
into account, they just presume that all people are heterosexuals.
Living on the Down-Low
It was found that many MSMs are living on the down-low. Participants were not
aware of this term but the description of the behaviour of some of the men they have
worked and had relationships with, described this phenomenon. They stated that most
Malawian men who speak loudest against MSM were said to be the first one to do
sleep with men when the light go down. They get married and/or involved in multiple
affairs in order to cover up for their being MSM. Participants reported that a good
number of MSM spent a lot of money on prostitutes just to come and sleep with a
man at the end of the night, after making sure that the community sees them with lots
of women. They make it a point that they act in ways that earns them a playboy
reputation. They want the community to say, ‘Koma nde amakonda akazi
kwambili/Wow, he is a playboy, he is into women a lot’. ‘Amafuna awomense kuti
aku menya konse/ they want to show that they are hitting (having sex) both sides.
This means he has to sleep around and this increases the vulnerability of hiv and aids
transmission for the MSM person, his partners and the prostitutes too. Participants
made it clear that it is the prostitutes who are spreading the infection to them. Both
groups interviewed emphasized that those living on the down low are usually linked
with so many women.
Dedza is said to have a very large number of prostitutes. Interviewees there
complained that MSM and straight men visit prostitutes and then come to ‘me’[an
MSM person] and infect me.
Orders
The interviews and focus group discussion shows that the MSM community in
Malawi, typical of an underground movement, has developed a language for
acquiring sex partners. A sex partner is called an ‘order’ and these orders are posted
through phone calls and one needs to specify the sexual preference of the one ordering
and of the order, to work out matches. For example, some like licking, whilst others it
is fondling and others not only like anal penetration but like to be on top, whilst for
others it is below. All this politics of sexual intercourse has to be worked out in
advance so that one does not get an order that will fail to satisfy its customer. After
all, if one sends a wrong order, that is an order that ends up not delivering sex wise,
24
you can end up souring relations between the one who sent the order and the one who
was sent the order. Apparently, no money exchanges hands for accessing or sending
the orders. It is understood that a good turn deserves another, if you send a good order
to your friend, tomorrow he will find and send a perfect order for you. This is a
community of few people so helping each other out is a survival mechanism that
everyone understands is the lifeblood of the community.
If someone tests positive, then ‘orders’ pass them by because they are labelled to be a
bad order. They are cut out of the order circles. So many people hide their hiv and
aids status so that they are not cut out of the order process.
I cannot go Alone
It was reported that there is a problem of some MSM who test positive deciding that
they do not want to go (die) alone. They try to sleep with as many people as they can.
Instead of going to be tested and warning others about it, they just go on a killing
spree to infect as many people as they can and say ‘tipite ambili/many of us should
accompany me in death’.
Sexual Practices - Sharing of Orders
When one gets an order and they like the encounter, especially if the order is a gay
person too, rather than an straight person, they will share the order with a fellow
MSM person. Because MSMs are few in the country, it is very rare to find a fellow
gay person and straight men who participate in MSM are rarely shared. Usually, you
share someone you are done with. Some people just never share.
Material Needs - Lubricants Scarcity
MSM members in the focus group conducted complained of lubricants being scarce.
Apparently those in towns can access them by going to organisations like CEDEP but
the further one is from the towns, the harder it is.
MSM is not a static category
Participants explained that there are members who can have sex with a man today and
deny ever doing it, or refuse to engage or approve of it vehemently the next day.
Some get back into the act after some time, others never do. Such people are
dangerous because they can report others and/or become the worst enemy of MSM.
They also stated that some of the men they meet are in denial of their sexual
orientation and some are just plain confused. Some accept at one time but end up in
an identity crisis.
For those who are HIV and AIDS counsellors, they explained that when they go into
the community, they prefer to let MSM members come out from the community.
They do not take MSM into the community because they say they know that is
something that can compromise their lives, they can be put in prison. So they ask if
there are any MSMs who need hiv and aids counselling in a community, just as they
ask if there are women who need help. They reported that in most occasions, it took
time for people to point out the presence of MSM but once one did, they were usually
supported by the rest of the community and once that happened, many examples of
MSM would flow from the communal discussion. After such discussions, according
to them, was often followed by an MSM person approaching them for lubricants and
other forms of counselling.
25
They explained that they faced the fiercest opposition from, the worst form of
homophobia from the church, police/government and community, in that order of
intensity. It was interesting to not note that most of them believed Islam was less
intense in its criticism of homosexuality and they reason they gave is that Islam ‘does
not look at personal life’ as much as Christianity does. Amongst the Christians, both
focus group discussion identified the Evangelicals as the group that is churning the
worst forms of homophic oppression. When asked how families react when they get
to know of their sexual orientation, most of them said families prefer to ‘hadle the
issue inside the house’. They do not want to the issue to go public for fear of
embarrassment. They often contact a pastor to pray for the MSM member. The people
who suffer most embarrassment and who pause the worst threat to an MSM member
are the wife of a bisexual MSM member. They are the ones who can use the
knowledge they have to blackmail the MSM man. The embarrassment they will get
from the community also fuels them to want to embarrass the MSM man even more.
Fathers of MSM men tend to be more angry than the mothers, when disclosure of
sexual orientation happens. The members who were interviewed agreed that
grandparents often react by saying that during their time, things like MSM never
happened and they try to give advice, to change the MSM grandchild. One of the
members took exception to this experience and narrated a story of an MSM old man
(about 60 years) who reported that he has been gay for a long time. He used to ask his
grandchild to play with his genitalia for sexual satisfaction. Apparently, when the
participant heard this from the grandchild, they went there so they could do this duty
instead of the grandchild. He knew he would derive sexual pleasure from this too.
Apparently the Gogo used to stay at Nansenga. The old man argued that MSM
always existed in his community. strongest value, who amongst the church.
Blackmailing
Participants in all the both focus groups conducted complained that they are being
blackmailed by those who come to know of their being MSM. They are asked to pay
for the people to keep quiet or else they will report them to the police. Participants
wanted to know how the law can protect them.
Mushrooming of MSM in Malawi
The number is increasing at a very fast rate and the ages are getting younger. A
respondent cited the average age of MSM members who attended a regional meeting
he attended. He put the age between 18 and 25 and stated that at this particular
meeting, there were two members from Ntchisi, another pair from Dedza and also
from Dowa. He said they exchanged phone numbers to keep in contact. There was a
Muslim member, a man who was having an affair with a male Bishop, lawyer and
Member of Parliament.
He said most of the mushrooming members ‘ndima Yo’. When asked to account for
this kind of mushrooming – the respondent argued that people are getting more
attractive, dressing better and more confident to embrace their sexual orientation.
The Tiwonge/Monjeza Backlash
This issue has made life very difficult for some MSMs. Some complained that it
brought their orientation into the limelight and made them targets in the community.
The felt that the timing was bad. The backlash was dangerous to their lives. In
26
Blantyre, they could not wear tight pants in some places for some time after that
incident. If you did, you were in trouble, you could be booed or even undressed. The
gay profiling that resulted came about because the issue was why would a man want
to wear tight pants, whom do they want to attract, they should be gay? Now it has
died down but it was bad, according to the respondents. One of the respondents
argued that the coming out of Tiwonge and Monjeza was shocking because they did
not like they way people denigrated being gay. ‘Anthu amanyoza/People spoke very
rudely’ and it was painful to hear. It really hurt and frustrated people who are MSM.
Conclusion
Clearly in Africa, MSM behaviour exists in many ethnic groups. The issue is that
MSM, WSW, Inter-sexed and Transgendered people just have not had space to
express themselves. In Europe and other western spaces, the practice is increasingly
being accepted within the human rights discourse. In Asia and Africa, it often clashes
with the discourses on culture and religion. This has complicated its incorporation
into the human rights discourse. There is evidence in the history of African
communities of same and bisexual attraction. In some communities, it is even alleged
that children who were born and exhibited what was deemed a sexual deformity, were
killed. There is also proof that in many societies as people grew up, those who were
found to be same sex attracted were and are ridiculed, forced to change and they face
several attempts to punish and control their sexuality. Two incidences shared at a
February, 2009 conference in Mangochi are worthy of mentioning. There was a
Malawian Reverend’s son who is gay. The father tried to force him to change. The
practice was branded a sin and they he asked a friend to pray for him. But because the
issue was a biological condition for the son, nothing changed. In Zomba, there is a
man who upon discovering that he was attracted to fellow men, he went to a Pastor
for help. For a year, he would attend the prayers but the Pastor gave up because he
had started to fall in love with the Pastor.
In any group that is criminalised, it is very hard to get space and time where members
of such groups are able to tell their story. It is for that reason that this research
privileges the views of MSM members that were brave enough to tell their story and
what comes out clearly is that they are men who have sex with men because that is
their sexual orientation. They admit that some people do it not because that is the sex
of their choice, some do it once and never again but for the people who are
homosexual or gay, those that identify in that way, MSM is a practice they do for
sexual satisfaction, out of choice and from a time they knew who they are sexually.
3.3
Legal Issues
a.
Constitution and Penal Code are at odds
b.
Criminalisation
A review of the legal and policy documents of Malawi shows that sexual minority
groups like MSM and sex workers are crimanalised, declared to be outside protection
of the law. This complicates working with them, especially when it domes to
HIV/AIDS interventions. They are declared outlaws therefore one cannot engage
them in the public space. For example, two university lawyer lecturers went to run a
workshop in Mangochi on an issue not even related to sexual minorities. Just after
27
leaving the workshop area, Police came asking after them, accusing them of having to
come to talk about homosexuality. Their response to this experience underlines the
criminalisation of MSM in Malawi and its impact because
they assert that ‘In fact, we were lucky not to be found in the space of the
workshop, we could have been arrested.’13
Kanyongolo argues that the criminalisation of the sexual minorities is further
evidenced by the character of the Sodomy laws he calls vagrancy laws. It is also
evidenced by the fact that laws concerning sexual minorities are in the penal code 14 –
the place where we find criminal law.
The problem with criminalisation is that it pushes the practice underground,
making it harder for interventions to engage, understand and access it. Interventions
are difficult when there is criminalisation. You end up with a subterfuge situation.
You end up having to disguise your interventions. A good example of this is the
billboard you see in Paul Kagame street in Lilongwe. It says ‘Minorities are people
too’ – this is something meant to combat the stigma and ostracisation of sexual
minorities but it ends up being so vague and that is counter productive. Sex workers in
South Africa can meet openly but because the act is criminalised here, they meet
under names such as peer to peer groups etc. Clearly, criminalisation compromises the
effectivity of the interventions. You end up with a lot of sugarcoating.
Criminalisation closes off state support, financially and structurally. The state cannot
fund illegal stuff. The issue cannot access state media. Major interventions like those
of HIV/AIDS require public/state funding. One needs resources of the state. In
addition, donors are moving away from directly running projects to funding through
government, that is, direct budget support. They prefer to pour into the government
bucket. This method has its weaknesses such a corruption but this also means that the
state decides what will be funded and that edits out what is deemed criminal.
Criminalisation reduces government’s attention on an issue.
c. Colonial Legacy
As illustrated above, sodomy laws are colonial, alien legacies. This allows the
government to say it is not them, they are not to blame, they are only implementing
the law, it is not their law, they inherited it. This allows them to distance themselves
from blame and argue that they are just enforcers. However, there is deceit in this
argument because they have the ability and power to amend the laws. They choose
not to do anything.
d. Exploitation of Inherent Vagueness of the law
By design, the law is drafted broadly for it to cater for the unforeseen future, so it is
not too specific to the point of being easily redundant. For example, a law on phones
can fail to cope when the internet comes into place. One needs to have drafted the law
in broad way. The problem is that often, this vagueness tramples on rights of specific
minority groups.
e. The Rule of Law Scapegoat
The government can use the rhetoric of rule of law, saying that it is the courts that
make the laws and they follow the rule of law. They leave the courts to be
13
See interview with Associate Professor’s Edge Kanyongolo . Law Faculty Building, Chancellor College, 2pm
3.15pm to 5.30pm
14
The Penal Code is one of the chapters in the laws of Malawi. It is found in Volume 2.
28
independent. This is something they do when they face donors who ask why there are
laws that go against the Constitution on sexual minority rights. They will just say they
do not want to interfere with the courts, they follow the rule of law when what they
are really following is rule by law.
f. Exploiting the Language
The language of the law is inherently vague. The executive branch of government can
exploit the institutional configuration of the law.
g. Elitisms’ of the law
The legal system assumes a fluent chain that links the citizen to the members of
parliament and Minister of Justice. The problem is that citizenship is not a given but
social construction. Some people attain citizenship whilst others can fail. Attaining it
once does not guarantee having it all the time. Sexual minorities are some of the
people that often fail to attain it, especially when their identity is criminalised. They
find themselves falling out of the chain. For example, the list of delegates to the
Malawi Constitutional Review of 1995 does not include sexual minorities. They are
not included in the list of institutions or individuals who attended the review.
h. Legal Moralism
The laws are very reductionist. They engage in legal moralism where one is trying to
get the law to enforce morals. See the Hart Devlin debate. 15
i. Heterosexist and Heteropatriarchal Law
By criminalising a minority sexual orientation, it normativises heterosexuality and
heteropatriarchy. This makes the law heterosexist and heteropatriarchal.
j. Elitist Colonial Patriarchy
In Malawi, we use British law to prosecute sex work. This is a law that emanated
from the elite. They were concerned with morality, religion and culture issues. Sex is
considered from a moral point of view. Sex worker is viewed as a morally bad person.
Sex work is not recognised as a right but stigmatised. The concept of adultery shapes
the law in many ways. The problem with morals is that people want to look morally
good in public but what they do in the darkness is usually different. So there is a lot of
public posturing in these laws, what really matters is what, who and how one is seen
in the public. It is therefore not surprising that in patriarchal communities like we
have in the many Euro-western societies, having multiple partners is seen as a wrong
when done in public and by women more than men. Our laws in Malawi show that the
15
The Hart-Devlin debate is one of the most well-known arguments in legal philosophy. Named after H.L.A.
Hart and Lord Patrick Devlin, the debate itself ranged over subsequent pieces of writing that spanned the 1950s
and 60s. The exchange itself is over the use of laws to enforce societal norms. The issue was raised after the
Wolfenden Report was released in Britain in 1957. The report basically revolved around legalising homosexual
acts (which was previously illegal) as well as prostitution. The conclusion of the committee presented in the report
stated that homosexual acts between consenting adults should be legalised, as it was not the business of the law to
make decisions on private moral issues. Both Devlin, a judge, and Hart, an academic, sat on the committee.
However, they objected to each other’s stance and continued the debate long after the report was made and
expanded it to morality and law in general rather than just about homosexuality and prostitution. Lord Devlin
rejected this basis for legalising homosexuality and in general. Devlin wrote several books and papers outlining his
dismissal of the committee’s report and Hart’s stance on the subject. He believed that without morality the law “…
destroys freedom of conscience and is the paved road to tyranny”. He thought that if the law did not enforcement
moral norms that society would start to fall apart. Devlin believed that uniform moral standards were what held
cities and countries together. These norms could be discerned by the general consensus of everyday people based
on what they find to be acceptable. While he thought that privacy should be respected, Devlin definitely felt that
there was nothing that was off limits to the law. http://www.politonomist.com/the-hart-devlin-debate-002607/
Retrieved February, 24 2012, 10.36am.
29
definition of the sex worker targets women and not men, yet the sex work involves
two people, man to man, woman to woman and since Malawi is predominantly
heterosexual, it usually involves men and women. Sex workers are an easy target.
k.
Non-Disaggregated Law
The Law does not disaggregate sexual minorities. They are just lumped together
thereby fixing sexual minorities as a category. This makes the law fail to recognise
the social realities of sexual minorities such as MSM and sex workers. The fixed
categorisation obscures particular realities of the people concerned. It masked the
identity and personhood of same sex attracted people, generating labels that flatten
then and bury their particularities.
These legal issues have adverse effects on HIV/AIDS interventions of MSM
and sex workers in Malawi.
3.4
POLICY ISSUES
a. A Policy of Denying MSM, Sexual Minorities
Malawi comes from a history of cultural and political denial. We have an entrenched
policy of denial. When it comes to issues concerning sex, we have a history of denial.
From 1985 to 1989, there was no official recognition of HIV and AIDS. In fact, there
was a time when you could not mention the words Aids in public. People would say,
matenda aBoma, matenda amasikwano (The Government disease, The disease of
nowadays). One has to remember that the National Aids Committee, now National
Aids Committee (NAC), it was formed from a push from the donors. For us, we kept
on saying we are a ‘God Fearing’ nation, it is a foreign problem. We blamed it on
Burundi’s, Zambians etc. We are not the only ones to do that in the region, see
Kabwila Kapasula’s ‘Challenging sexual Stereotypes: is cross-dressing ‘unAfrican”?’ in Feminist Africa Issue 6 (2003) for an example of how AIDS, just like
homosexuality, was blamed on black foreigners in Botswana at height of the
pandemic.
This denial has implications:
i.
The issue becomes a black issue and this makes it thrive because there
is a mystic about it. This crates a curiosity, it gains status, bravado.
This make the behaviour proliferate.
ii.
Interventions are stifled, efforts o deal with it are stifled and develops
dimensions that makes it uncontainable. This proliferates into other
issues. For example, some of the interviewees say they got married in
order not to be suspected to be gay but what is the effect of that? How
does one intervene in terms of health issues, for example in terms of
HIV/AIDS. You cannot intervene in what does not exist, you put
handcuff on yourself. In Malawi, leadership is putting handcuffs on
itself and dragging the society with it into the abyss. How does one
intervene on issues of HIV/AIDS when they are criminalised.
iii.
The issue of MSM and sexual minorities becomes donor driven.
Donors drive the dialogue, then it becomes a conditionality of donor
aid. Malawi does not have participation in the issue. There is no
ownership.
iv.
Policy becomes technocrat based without participation of the citizenry
in at large. This possesses a problem in country with vast differences
30
of illiteracy that are more pronounced along gender lines. It becomes
an elitist project. The whole issue becomes a technocratic exercise.
v.
Public awareness becomes a huge challenge. MSM and HIV and AIDS
intervention becomes an issue that is starved of publicity. It is hard to
draw awareness to the grassroots. It fails to come out into the public
domain so that is interrogated and stand a chance to be owned.
Impact on Youth
b. Sexual Minority ‘Uncomfortable’
An issue that is clear with our policies is their uncomfortably with the issue of sexual
minorities and this evidenced by the way they are addressed minimally. They are
addressed in a way that fails to disaggregate the groups of people. For example, there
is failure to look at age groups, class and space differences, something that is done for
groups like children and women. There is a tendency to monolithise but one needs to
break them down in order to show their specificities and nuance the interventions.
One has to identify different groups and be prepared to show how institutions can best
engage the people in the vulnerable groups. A good example is the way domestic
violence has been linked to women and HIV/AIDS interventions. In any intervention,
you need to disaggregate the groups of people in order to nuance the intervention
c.
Schizophrenia/Multiple Identity Policies
Interventions are affected when there are policies and policy makers change their
rhetoric. For example, when Mary Shawa16 and the Government of Malawi went to
present documents on HIV/AIDS to Global Fund, the document reflected sexual
minorities such as MSM but when they came here, especially as when they came, they
found the Tiwonge Chimbalanga issue, they played down the presence of sexual
minorities in Malawi. We saw an instance of policy schizophrenia. They changed
when they got into the country. Policy consistency is very important if interventions
are to have positive, measurable, visible and consistent results on the target group
concerned. If there is to be a viable impact o the environment, one needs a stable
policy environment, one that one can program and work with without it being
changed in midair at different places. When you have a policy environment that
evidences multiple identities, it is hard to being interventions to fruition. Our
documents on sexual minorities keep changing in interpretation and this is
problematic when one meets groups like Members of Parliament. The changing brings
an element of mistrust and non-productiveness. This has a negative impact on
interventions. Government is a major stakeholder in interventions.
d.
Using HIV/AIDS as a Neo-colonial State Survival Tactic
The history of Malawian legal and policy documents on HIV/AIDS enables the
government to play a blame game and use the issue of HIV/AIDS intervention for
sexual minorities as local and international political and social currency. They can
blame the donors, elites, diaspora Malawians or NGOs, process of interventions,
political climate and or religious fundamentalism. They can decide to personalise the
issue and attack those that fight for sexual minority rights as we have seen them do
this past three years. They can blame that policy and not that one. This is a problem
especially given the policy proliferation in Malawi. The latter has caused
contradiction and loss of focus of policy on issue. The government can also use their
need to survive politically by playing the nationalist, culture, religion card/s. Bottom
line is they need to survive politically and how they behave before, during and after
elections depends on their political thermometer and health bill.
16
See Mary Shawa on Global Fund, Nyasa Times, CEDEP website.
31
e.
Culture of Hypocrisy
The reason is hypocrisy. They want to tow the high moral ground. So they pick on
issues that can support their moral stand. So Malawi is being put on a high moral
ground. If we can show that ‘here it does not happened, then Malawi is better than
others, we are better than others. This means leadership is seen as good. People
coming on this are ministers. We do not have social ills, out nation is sanitised.
f.
An illogical ambivalence
Our policies evidence an illogical ambivalence because they criminalise what is said
not to exist.
4.0
MSM/Sex workers, HIV/AIDS INTERVENTIONS,
MALAWI - STAKEHOLDER’S VIEW OF STATUS
QUO
4.1
A View from Higher Education
In formal education HIV/AIDS Education is being tackled through social studies and
life skills. The latter is more the base of such instruction. An interview with highly
ranked education officials on HIV and AIDS in the Malawian education sector,
underscored that the issue of fighting HIV/AIDS in the classroom has been casual and
business as usual. Officials actually said when it comes to that,
‘Timangokhala’, we are not fighting this disease as a pandemic in the
education sector, what we have now is adhoc and reactive17.
Baselines surveys have indicated that not much is happening. Malawi is failing to
respond to emerging issues in our country. The classroom has failed to make itself
relevant in the discourse HIV and AIDS interventions when it comes to MSM, LGBTI
and Sex workers. For example, an analysis of departments such as Higher Education
illustrates a body that is not a think tank on this issue. By and large, our classrooms
treat the issue of sex and sexuality as a taboo. Given the time that students spend at
school as compared to any other place, the role of the youth in fighting this pandemic,
education is key in sex education. But, the teacher or teacher trainer has to be
comfortable with their own sex, gender and sexuality in order to engage students and
impact productively.
Student Support is central to sex education but it is lacking a lot in Malawi. We seem
to be more interested in doubling the numbers at university, secondary school and
primary instead of worrying about the quality of instruction. We know we do not have
resources; one wonders why we then go ahead and double intakes all over. There is
need for Malawi to equip students to fight this HIV/AIDS themselves.
4.2
EDUCAIDS
EDUCAIDS18 is formally two years old. It is brainchild of EDUKANS of
Netherlands. They have branches in Uganda, Ethiopia and Kenya. It aims to promote
comprehensive and integrated SRHR for the youth (ages 9 to 30) in the fight against
HIV/AIDS. Their target groups are in and out of school youths ages 9-30, girls,
17
18
Higher Education offices, Lilongwe. Friday 3rd February, 2012,
http://www.educaids.nl/page/637 Retrieved 23 February, 2012, 17.46.
32
teachers trainees, tutors within TTC, PTA and School Management Committees,
TeachersThey look at advocacy, capacity building and service provision. They
integrate and network with partners. Half of the partners are faith bases so there are
limitations on what the organisations can do. EDUCANS promote the ABCDEF+.19
But, most of the partners do not even reach the C, they do not even talk about
condomising as it is seen as problematic religious wise. EDUCAIDS accepts that their
training does not engage homosexuality, their services focus on heterosexuality
because of the faith based nature of the institutions involved. Activities do not talk of
MSM because doing that would be seen as taboo. Clearly, if talking about
condomisation is a problem, homosexuality is non starter.
It must be stressed that the EDUCAIDS personnel appreciates the urgent need of
engaging homosexuality and LGBTI issues in HIV/AIDS education because there is
MSM and WSW in Malawi. They said the latter sexual minorities exist and secondary
schools in Malawi were cited as examples. Not talking about it means that the
approach of EDUCAIDS is not comprehensive. Same sex relationships, specifically
MSM need to be recognised or else efforts of institutions like EDUCAIDS are
fighting a losing battle, they will not meet their goals. In and out of school youths
include those that go to prison. But, EDUCAIDS does not talk about homosexuality,
yet we know homosexuality happens in prisons. This makes EDUCAIDS fail to
address new infections that come from that route. The target groups of EDUCAIDS
are girls, Parents and teachers and so by not addressing a big target group of the
youth, they are missing a crucial target. Programs focus on targets and if this is not
registered, it is not worked on.
It is a fact that there is MSM and WSW in Malawi. Interviews conducted by
EDUCAIDS of girls in schools evidence that they speak of WSW as normal
occurrences. It is not a strange concept at all. They even have words for it, they call
each other ‘aDarling’ and so on and so forth. We need to factor this in HIV/AIDS
training. The strategies being used in HIV/AIDS training this far, do not address this
problem.
EDUCAIDS works with teachers that are living positively. They have trained district
education managers whom they equip to handle issues of stigma and discrimination.
They have trained Primary School education Advisors. There is an organisation called
TILIPO. It comprises of teachers lving positively and its membership is over 3000.
They look at issues of treatment, care and support. EDUCAIDS trains them to be
trainers of trainers. There is also Uchembere Wabwino. They deal with sexual
reproduction rights, focusing mostly on the maternal side of issues. In Zomba there is
sexual and reproductive heath alliance. They can be found close to YONECO. But, all
these trained people, the councillors, are not equipped to deal with MSM/homosexual,
LGBTI issues. The problem is that they are generally ill equipped. To start with, they
are not inadequate in number and most importantly, they are often not youth friendly.
They often bring the culture discourse into their work. The problem starts with the
way they dress. Youths complain that most of them dress very conservatively. Once a
young person comes to them with an STI, they judge them and take a judgemental,
accusatory attitude towards the youth. Youths report that they are often advised, even
ordered not to be sexually active. Now, a person like that is not someone one would
19
This acronym refers to abstinence, be faithful, condomise etc and the + means positive living.
33
take the issue of MSM to. There is an urgent need for the councillors to be well
trained so that they can provide youth friendly health services. They are supposed to
provide services with confidentiality but there are so many reports of that not
happening. In the end, the youth prefer to get advice from their peers. Many youths
say they cannot not even talk of menstruation and sex to such councillors, these are
issues that most councillors deal with silently. Our culture has a problem on this issue,
it is silent about issues of sex and sexuality. This makes it hard for the youth to get
help on those issues.
In schools, the subject that is supposed to equip the youth to fight and manage
HIV/AIDS is life skills but an analysis of how it is being taught, has shown
EDUCAIDS that the curriculum is too loose. It does not cover sexual and
reproductive and health rights adequately. It does not equip students with the relevant
skills to achieve its goals. It is not age appropriate. It needs to ascertain that students
know and own their body, know the changes that will happen as they grow up. Issues
of menstruation, sperms and wet dreams are not covered. Tutors have admitted to
EDUCAIDS that they do not deal with sexual and reproductive rights. They do not
have the content, no the resources for example, they do not have dummy penises and
other gadgets needed for one to teach this subject effectively. The curriculum of life
skills needs to be reviewed urgently at TTC levels. It needs to be made
comprehensive. An analysis of how this subject is being taught shows that culture is
holding people back progress in this subject. Instructors often complain of having
problems to discuss issues that they feel should not be discussed in the open. The
problem we have now is that if these issues are labelled taboo at home, the school
needs to talk about them, especially if they are linked to a pandemic like HIV/AIDS
but alas, even in class, the teachers are not comfortable talking about them. Some
teachers even say they stopped teaching this subject because they are uncomfortable
talking about issues of intimacy. Some they say they do not like teaching this subject.
Others have said they substitute it with other subjects when they get to parts they are
not comfortable with. The research that EDUCAIDS did on this issue was evidence
based and it focused on sexual reproductive rights and it showed that many teachers
cannot facilitate discussions on issues that touch on sex. But, we need to be
comprehensive in our approach to this subject. If we cannot even talk about sex, how
can we hope life skills to broach the subject of MSM? There is need to review he
curriculum and teachers need capacity building. There is an urgent need for a culture
paradigm shift.
4.3
The View of District AIDS Coordinators
The District Aids Coordinators (DAC20) explained that they mainly work with
community and faith based organisations21 and that, together with the legal
framework defining sexual minorities issue, largely meant that they do not address
issues of sexual minorities when they are doing their job. Those who train them also
do not engage this issue. Their approach on HIV/AIDS intervention was largely
20
Zomba and Mangochi DACs were interviewed face to face. Zomba is said to have 18% HIV and
AIDS prevalence. This research is crucial to places such as Zomba because it is surrounded by places
that house high risk populations such students, prisoners and tourists.
21
The examples of such groups I was given were St. Charles Lwangwa, Shukura Mubarak Complex
(Muslims). St. George Anglican and Sadzi Community Based Organisation.
34
restricted and not open to such issues. Even prison HIV/AIDS Coordinators do not
engage this issue, it is not registered. The DAC’s do their work based on target groups
and MSM are not an audience that they can target as it is not registered. Some insisted
that they needed confirmation for them to have programmes that can engage MSM
and sex workers.
In the face of the number of MSM in their district, some of the DACs stressed that the
silence on MSM meant that ‘tikungongowaula that is, not looking at the issues
systemically but looking at it cosmetically. One argued that what they do is in tandem
with the way the HIV and AIDS policy treats the issue of sexual minorities, it just
scraps on the very top, bypassing them/imangodutsa pamwamba peni peni. They
argued that even when the policies they use mention MSM, it is mainly to window
dress/kuchongetsa so that Malawi can appear to be in line with international standards
and access funding, not because MSM are a group that is recognised as a stakeholder
in the HIV/AIDS discourse. They argued their efforts are restricted by the
constitution.
The presence of MSM was resoundingly confirmed and it was said to be rampant.
Many tour guides are said to have reported its presence. But the anal sex that is
involved in most MSM sexual contacts means many need lubricants but DAC’s
complained that they had no access to MSM. When the MSM’s contract HIV and
AIDS, the system does not ask them if they have same sex partners, it is just assumed
that everyone sleeps with a woman. If the counsellor does not attribute the
transmission to heterosexual sex, they rush to link it to drug use, ‘mumazibaya/you
inject yourself’. Counsellors are not trained to deal with MSM. A good number of the
MSM are bisexual and this puts wives at risk too.
When there were asked if MSM is a Malawian practice, some said the problem is that
even for those who ‘learnt’ the practice from foreigners, the fact of the matter is that
such Malawians have developed an appetite for the practice. The issue is not the
nationality of the source of the practice but the fact that the practice is amidst this
nation, it is being practiced by Malawians.
For those who argue that MSM is a sin, the question that some DAC’s were asking is
‘Is this the only sin?’ Our papers are full of sex scandals by preachers yet all we hear
of everyday is that Malawi is a religious nation. The problem is that because it is a
practice that is criminalised.
4.4
The view of a Human Rights Activist Lawyer
a.
Periodic Assurance of Protection
In Malawi, MSMs sometimes get assurance of protection from authorities as long as
they do not reveal their sexual orientation. So as long as one stays under the radar,
protection can be assured. This makes it harder for them to access MSM HIV and
AIDS prevention programmes.
b.
Fear, No Liberty , No Safety
MSMs are constantly afraid of the law, church, community and the system as a whole.
There is no liberty for them to live the life of their choice. The major challenge is that
of space. They are afraid of being arrested at every time. Fear of arrest accounts for
the main reason to stay in the closet for many MSMs.
35
c.
Ready for Mass Action
Even though they live in fear, what people interviewed underlined is that they are
ready for mass action. This is especially because this will be done as a group and
afterwards they will go to their homes and continue hiding.
d.
Lesbians
They face triple oppression because of being female. This is in view of the oppression
that women face in Malawi.
e.
Need to separate Homosexuality with Paedophilia
f.
Gays are normal Human Beings
There is a tendency for those who engage the issue of gay rights to think that those
fighting for gays are saying gay people are perfect and they do no wrong. It is
important for people to understand that gay people are normal. They cry, laugh and so
on so forth. Like heterosexuals, some of them steal, rape, kill and so and so forth. The
fight for their rights is not to accord them extra rights, it is to have them enjoy human
rights.
g.
Hetorosexist HIV messages
The issue that surrounds them on HIV and AIDS is about penis and vagina. Penis to
penis, vagina to vagina or penis to vagina of the same person is not talked about.
h.
No MSM condoms
You cannot find special condoms for MSM if you do, it is not easy. These condoms
are thicker and they protect the MSM user better.
i.
Challenge of Trust
Due to the criminalisation and ostracisation of sexual minorities in Malawi, it is hard
to gain their trust. Human rights lawyers emphasize that gaining their trust takes time
and is something that one has to invest in heavily to attain. The researcher
experienced this first hand in conducting this study. I discovered that the phone, given
the pivotal role it plays in the getting of MSM ‘orders’, was a difficult source of
communication to use when setting up appointments. Since MSMs are criminalised,
one has to rely the one you know contacting the other, the snowball approach. I asked
one member of the focus group to contact an MSM member in the next district I was
conducting research but the MSM member on the other side of the line was evasive.
When I asked what was going on, I was told that that gay/homosexual guy was highly
suspicious of the one calling to ask the number of another MSM as that could be a
way of getting that ‘mwamuna/male lover’ for himself. I was told that phones are very
difficult to carry out conversations with MSM as they are the main ways to get
‘orders’.
4.5
View of University, College HIV/AIDS Counsellors
a.
Councillor Silence on MSM
A Chancellor College HIV and AIDS Councillor and Zone Supervisor stressed that
sexual minorities, for example MSM and WSW were not issues they mentioned or
included when training counsellors and/or counselling students in Chancellor College.
The counsellor said male to female transmission was what they focused on because
that is what they are equipped to handle. Even when they deal with prison
communities, much as they MSM is said to be prevalent in prison, interventions do
not mention MSM or WSW ‘we just talk of AIDS as a sexual disease’. This is done
even though MSM often means anal penetration which has a high level of HIV and
AIDS transmission.
b.
The Present Absence
36
Most respondents agreed that there is MSM in Chancellor College but it is a silent
presence, present absence. A Chancellor College HIV and AIDS Councillor reported
that there had been strong rumours of a male student who was having an affair with a
lecturer but none of the two ever came to him. A large of part of the silence is
attributed to the triple taboo suffered by MSM. It is criminalized, condemned by
organized religion and labelled sin culturally. It is defined as an alien act that is wrong
and beneath acts of humans.
c.
We do not Care of Sexual Minorities
The interviewees stressed that if we do not incorporate the issue of sexual minorities
in our HIV/AIDS education, prevention, treatment and management, what we mean is
that we do not care about the same sex attracted people of Malawi. Given the
evidence that is coming from the ground, we are running the risk of perpetuating a big
and real threat to the community. There is real danger of leaving one pillar of this war,
we are leaving out a substantial target group and all those linked to them. ‘There is an
urgent need for us to open up’. Councillors need to open up and stop looking at
HIV/AIDS as a female to male issue. If someone tests positive, there is need to treat
the partners not just as heterosexual but expect there to be same sex partners too.
d.
Not using a Human Rights Approach
HIV/AIDS Counsellors and those who train them admitted that they operate from a
structural, anatomical point of view, not from a human rights perspective. The human
rights approach is not employed. For example in Chancellor College, where a good
amount of Gender Based Violence (GBV) and Violence Against Women (VAW)
takes place, we know the link of these two to HIV and AIDS prevalence – councillors
and those in authority admit that they do not strive to educate male and female
students of sexual and reproductive rights. There are trainers who do not want to talk
about sex, they cannot mention genitalia.
4.6
View of the Clergy
A Person vs Institutional Stand Disconnect in Christianity
There is a disconnect between the church stand and church personnel, in this case,
reverends – when it comes to the issue of homosexuality in Malawi. Interviewees
emphasised that the official stand is that homosexuality or LGBTI sex is a sin in
Christianity and those laws will not change. However, the peole made it clear that
their personal positions are different from that of the chuch. They stressed the need
for the church to change its stand, especially with the advent of HIV and AIDS. ‘The
same sex attracted people are our Christians and they are dying’, they argued. They
went on to argue that the central message of Christianity is love. Love is not qualified
so we should love homosexuals just as we love heterosexuals because they were
created in the image of God too. They are human beings. The church needs to accept
and assist them to fight this pandemic. However, they were very clear that
Christianity teaches that homosexuality is a deviant behaviour and the church is
treated as a hospital to cure this sexual orientation. This is where they are expected to
to get cured of this sin. The reverends called for the church to open oup. Given the
authority that the Christianity wields in the lives of people in Malawi, opening up will
increase ways safe sex practise that will help prevent and/or manage the pandemic.
They also noted that change is hard, it is not an event, it is a process. They were sure
that things will change with time. After all, Zomba Theological has homosexuality in
its Christian Ethics’ curriculum. If we are to intensify on behaviour change methods,
37
reverends are crucial in CCAP because they impact change in many ways. For the
Catholics, it was the Bishops who need to be involved in this discourse most. They
can help open up avenues to engage HIV and AIDS interventions.
Evangelical Donor Hindrance
Sometimes, it is the donor, especially those funding evangelicals that dictate
conservative views on sex and sexuality and fuel a lot of homophobia in the Christian
world in Malawi.
MSM unprotected sex safer than Heterosexual Sex
The researcher was very shocked to find out that there is a general perception in
Malawi that a man stands to catch HIV/AIDS more if they sleep with a woman than a
man. When this was mentioned, the researcher was challenged to ask people in the
street, to test the prevalence of the view. I asked a sample of ten that I chose randomly
and ten out of ten, they confirmed this. They had not been privy to the interview and
when asked why, the reason given was that it is women who spread HIV and AIDS.
One can see the products of a community that views women from a biblical Genesian
perspective that sees women as the news who eat and spread sin, as Even did. What is
also evident is that the message of HIV and AIDS has really been delivered and
consumed from vagina enters penis perspective. Anything else seems less harmless.
The heterosexism that is peddled by heteronormative HIV and AIDS discourses has
really demonised women and defined them as the producers, distributors and
perpetrators of the pandemic. The fact that anal MSM sex, especially one that does
not include lubricants and relevant condoms, is more dangerous due to the soft tissues
of the anus, is more dangerous than the penis enters vagina sex, is something that
many of the people interviewed exclaimed was a new thing they never thought of or
knew.
An interrogation of what the legal and policy documents say about MSM, it is clear
that men who have sex with men in Malawi are not enjoying their sexual health and
reproductive rights. Even though there is ample that they are there, they are there in
living flesh but policy documents deny their presence. Policies also have very loud
silence on them. The main reason, especially when one talks to them and specialists in
the field is that they choose to have sex with men. The Malawian legal documents that
criminalise them show that Malawi is saying they cannot exercise their right of choice
when it comes to who have sex with and for what reason. The discourse on
homosexuality in Malawi, especially the one following the Tiwonge/Chimbalanga
saga illustrates that the issue of procreation, the Genesian story of how to have sex
and why, is what Malawi wants to prescribe to all citizens. This means the rights of a
man to have sex with a man is being surprised.
5.0
Sex Workers, Victims of Malawi’s Double Patriarchy
An analysis of the legal and documents review and the issues emanating, emphasises
the double patriarchy (Ajayi Soyinka 1996) that is the organising principle at
institutional and communities level. This system that inferiorises women is informed
by a host of factors such as,
 Indigenous and Eurowestern religions
 Global capitalisms,
38




Indigenous and Euro-western cultures,
Physiology,
Organised Euro-western education
Historical female oppression (Kabwila Kapasula 2009, 2010)
These factors work together to weave an oppression that is pertinent to HIV/AIDS
interventions of sex workers in Malawi. The patriarchy affects the way Malawi
unpacks and implements Sexual Reproductive and Health Rights (SRHR). Like
MSM, there is a debate on the source of sex work in Malawi. The researcher decided
to interview specialists who work with sex workers in the HIV/AIDS.
Sex Work Causes – An HIV/AIDS Councillor’s View
One interviewee revealed that nationally, the drive for ‘prostitution’ is poverty and
high sex drive or what he called ‘hormonal’ cause. The latter is when a woman hunts
for the next sexual encounter with a man because she cannot get enough sex in a
normal affair. She cannot stay without a heterosexual sex. Respondents talked of
women who can move from Mangochi to Lilongwe, pub crawling, looking for the
next sexual satisfaction. It was interesting to note that many respondents attributed the
largest number of prostitution to the second, not the first reason.
When asked how this category plays out in campus, the specialist stated that
The girls in campus are considered ‘normal’ not prostitutes yet we know there are
prostitutes in campus. So this is a much classed term in Malawi. The interviewee went
on to add that sex workers outside campus, those in the communities behave more
freely, they come to meetings and protect themselves when councillors call meetings.
In campus it is tricky. He emphasised that sex worker is a term that refers to a woman,
not a man. Even though we know that the sex act involves both men and women, only
women are taken to be prostitutes, there is no word for the men. When we do
interventions, we target the women. This means the transmission that goes to men is
not targeted.
The researcher decided to seek the view of a sex worker and once again, the interview
yielded much more than just the source of sex work and its link to HIV/AIDS.
5.1From the Horses Mouth
The first thing the sex work stressed what that when the Police raid bars to pick
people for rogue and vagabond, sex workers are surprised that they just pick women
and not the men – the Johns. Yet, what they are being accused of is not something that
they can do alone. One of the sex workers interviewed lamented that ‘It is men who
find us at our place of work, we will have beautified ourselves, wearing our pair of
trousers – it is just another day at the office’ but the Police only pick us when they
arrest people. Sometimes, they are picked behind a building having sex with a client
not because they wanted to loiter but because the client had no money to book a room
but they want to make their money. But, it is them who pay the price for
‘timangopolama (just bending to have sex)’ and trying to make money, service a poor
client.
Sex workers do not recognise their basis rights
She stressed that illiteracy is a big problem. Not many know their rights since the
rights discourse is not only a driven from the fabric of literacy, it also tends to be
39
elitist. Sex workers tend to not recognise their basic rights. So if they get arrested, the
do not ask why or for a lawyer, pastor or parents. If you ask them if they know they
have basic rights of SRHR they ask you where those rights are? It is evident that most
of them do not know that rights are not given by someone, one has them. This is a
very hard concept for them to buy as all they see is how stigmatised they are by the
law and the community. The sex worker interviewee lamented that most of them only
know the law when they have broken it or when one of them is in trouble. She said
they learn most of the laws from the radio. She gave an example of the fact that it
took her a long time to know the difference between the Constitution and Penal Code,
later on the disconnect between the two when it comes to people who do the job that
she does.
When they get arrested, because of not knowing and enjoying their rights
adequately, most of them accept the charges meted out to them out of ignorance and
get prosecuted. The police are abusing their powers and the sex workers on their part,
do not know what to do. –They do not enjoy basic rights.
Profession not recognised
She emphised that every job has its own space, dress and code of conduct. Sex work
also has this but it is not recognised as a profession. Its spaces include the bar, street
and hotels, just to mention a few. This is our office and when we are there, we are at
work, looking for money to feed our children and families. There we meet doctors,
lecturers and people of different walks of life. The main purpose is to make money
after giving them sex. But people do not recognise us as workers.
Stigmatisation/Carrying the HIV and AIDS face
She explained that when they get go to work, they can have sex with a medical doctor
and catch an STI in the line of duty. Because they are stigmatised and labelled to be
the source of HIV and AIDS and other STIs, they are afraid and embarrassed to go the
same doctor whom they slept with last night. If they go to the hospital, everyone, from
female nurses (who might be the wife of a last night’s client) to the male doctors,
wherever they go, amatiloza chala, kuti Hule22 uyu./ They point at us and say there
goes a whore’. In Zomba, sex workers who find themselves in this situation have been
called AK 47, meaning they are murders of people, they are peddling HIV and AIDS
and STIs. They are seen as the face of HIV/AIDS. So some sex workers end up using
herbs or going to the traditional doctor (sing’anga) and some of them say in order for
the medication to work, you have to sleep with him. They can also contract the
pandemic in that way, after all, no one knows if the doctor has been tested and the
‘hule’ is desperate for medical assistance, she is not in a position to demand proof of
testing.
22
There is debate about origins of this word. Some specialists say it is from the English word whore
whilst others say it is from a Boer (South African) word meaning meaning hoe. Apparently the word is
used to denote that women who sleep with men for sex are like hoes that are just used and discarded
after use. What is clear is that it is used as Chichewa vernacular and is employed as a derogatory word
for women who are deemed to be sex workers and/or prostitute. It is also used to belittle, discipline and
infantilise women. Any woman who is seen to be behaving in ways that a group of men consider
unacceptable morally, they are called Hule. We have seen women ministers get called this term in
parliament. Popular songs use this word but it is good to see that the term is getting critiqued with
women speaking back to ask who really is a Hule.
40
Castigated by Clients
The very men who sleep with the sex workers, be it at pubs, the police or other
entertainment places, are the first to verbally, physically and mentally abuse them,
especially when they are in public, during daylight and far from the cover of the night.
Multiple Oppression
The interview with the sex worker demonstrated that women are oppressed in
Malawi. Female sex workers face multiple forms of oppression mainly because of
their sex and gender. They are the very definition of sex work. They get condemned at
gender, religion, race, moral and personhood grounds. They are an easy target for the
community, men, police, the law and media. An analysis of popular music evidences
several songs that castigate and ostracise female sex workers. They are dehumanised,
criminalised and blamed for breaking marriages. They are defined as the people to
avoid and stay away from if one wants to live long. A good example is Albert
Khoza’s ‘Akunenepa nako kachilombo’. There are several programmes on the radio
that also define sex workers negatively. A sex worker gave the example of Joy Radio
program that comes up at 9pm. In this programme, a heterosexual marriage is always
potrayed to be suffering because of a sex worker, yet the view of the sex worker is
never sought or represented23.
Infantilised, Commoditised
Female sex workers do not get support from the community because women in
general, are seen as sex objects in most Malawian communities. This has been heavily
evidenced by the current discourse on undressing of women in markets in Lilongwe
and Mzuzu. The reasons advanced for the acts illustrate that women in Malawi are
largely defined from a domesticity, sex object perspective, that believes they are
children that need guidance from the society. Society feels they are going wayward,
they need to be brought back into line and their opinion on the matter is never sought
Ostracised
The society judges and marginalises them , treating them as disposables. A sex
worker explained how in her community, she would be passed by and not told when
there is funeral. This is the highest form of ostracisation in many African and
Malawian communities. She actually had to approach the chairlady of the area she
stays in, to ask why this was happening. The chairlady was evasive but she promised
to change her deeds.
Self Pathology
The sex workers themselves, believe they are condemned. Talking to them, one sees
lots of traces of horizontal violence (Duffy 1992) in the form of a self pathology.
They see themselves as condemned.
Suffering Patriarchy of Religion
23
The sex worker interviewed went on to argue that the fact that when some women stop taking care of
themselves when they get married, is never looked at. That a sex worker will never be rude to a client
and will do all that the clients wants, unlike most wives, who are often rude, is not even talked about.
She stated that it infuriates her when the wife in the program is angry that her husband has built a house
for the ‘Hule’ and what baffles her is is the Hule not a person? If the man wants to thank her for good
services, why cant he do that? she asked.
41
They are victims the patriarchy of indigenous and Euro-western religions. A sex
worker narrated an experience with a Christian church leader who refused to pray for
her son when he was not well. A neighbour advised her to take her ill son to the pastor
and when she got there, she found three male pastors and one female one. These were
Pentecostals. Instead of praying for the child, the leading Pastor told the sex worker
that the neighbour who had directed her to him, told him everything about the sex
work she does. The reason why the child was not well was because of the sex work
and the pastor ordered her to repent right away. In fact, he informed her that if it was
not for the fact that his visitors bedroom was full of bags of maize, he was going to
‘admit’ her overnight and ‘discharge’ her the next day. She says she just prayed with
them and left. After some time, she met the wife of that pastor(M’busa) complaining
that a sex worker had taken her husband. He had moved out of the house and moved
with the sex worker into a boy’s quarters. The sex worker he had moved in with was
on ARVs. The sex worker raided him on one of the few times that he had visited his
wife and reminded him that he has wanted to ‘admit’ her but now, look at what he
was doing. She asked him to come back to his home because a sex worker is not
interested in marriage, she just wants money. He returned some before the end of the
month.
No Protection from Institutional Violence
Since the law is not on their side, they have no protection against institutional
Violence. When they are arrested, a good number of them report that they the police
demand to sleep with them. The power relations between them and the police mean
that they cannot not even use the sex as a negotiating tool, they are usually forced into
sleeping with the police, and violence is used. In this way, they can be infected with
HIV/AIDS and various forms of sexually transmitted diseases (STI). They cannot
fight back, they are stuck between a rock and hard place. Meanwhile, they are labelled
reservoirs of HIV and AIDS when sometimes, they become vehicles and containers of
disease due to the position they occupy in society.
Deprivation of Property
A good number reported losing their cell phones and other forms of property they
have at the time of arrest. They report that they have even tried to give some
Policemen condoms but they refuse, they tell them that they are HIV/AIDS, how can
they seek protection from that which they are? Some Police men are reported to be
telling them that their profession is not allowed by the head of state.
Parental Hardships
When they are arrested, they cannot take care o their children and the latter suffer
during their absence. It was very touching to human rights HIV/AIDS trainers testify
that during sex worker’s training sessions, some brought their children with them,
showing that sex workers are human, they are parents. They are normal human beings
whose rights should be respected at all times.
Mandatory HIV and AIDS testing
A sex worker who was interviewed asserted that they are put in the cell, in the
morning; they are usually taken to the clinic for mandatory testing. She cited an
example of what happened 2009 when 42 sex workers were arrested and taken to
prison. Apparently they were asked to pay 5000MK to be releases. By the the time
she had followed them to the station to check on them, she found those that had failed
42
to raise the money. She is an empowered sex worker who is attended several local and
international training sessions on how to handle situations such as arrest. She decided
to document the names and reasons of arrest of the sex workers she found at the
prison. Apparently, one was on her way to pick a braii stand with her boyfriend when
she met the police and they picked her, left the boyfriend. The others wanted to go to
Matawale for drinks and they were picked for loitering and being disorderly. They
were forced to be tested and what pained them most was the manner in which those of
them who were positive was told, and it was most of them. Apparently, they were just
called and they were announcing in the lobby that ‘you and you, positive, you, STI’,
no one was counselling before or after this announcement. In the end, the Police asked
for them to pay 3000MK and then they were released.
The problem with this mandatory testing is that some of the women who were
tested here had been tested already and sex workers are wondering if the government
is using testing material economically if they will test them every time they catch
them, yet they can test people who were already tested. Given the scarcity of drugs in
the country, one would have thought they do not want to waste resources on someone
who was already tested.
Cannot access PEP
PEP is a drug that is given to a woman who has been raped and she is supposed to
take it within 72 hours of the rape. When sex workers get raped, they cannot access
this drug because people do not believe that they can be raped, after all, their
profession is having sex. When they go to the hospital, the first question is the
toughest, according to them and the question is ‘What do you do?’ as in what kind of
employment do you do? That question is often followed by a question that shows a
society that judges a woman who is not formally employed and not married. One can
try to say I am not employed but that question is often followed by the question of so
how do you make a living and that is hard to make up or give a convincing answer.
Right to Dignity Violated
A problem with these arrests is that they violate one’s right to dignity. Some sex
workers are on treatment, like the one interviewed. It is not right for them to have to
report to each Police man that they are on treatment, that is an issue that they have a
right to keep to themselves. When she is arrested, she cannot take her medication in
time and that jeorpadises her health.
It is wrong and impossible to profile a sex Worker
The sex worker that was interviewed explained that some people are sex workers due
to impoverished situations they find themselves for example herself. Her parents died
consecutively and she found herself saddled with two brothers she has to take care of.
Her story illustrates that she is a product of child trafficking, an elderly relative used
to pimp her out in exchange of food. After sex working for some time, she found that
some of the men would give her money and food directly to feed her brothers. The
brothers soon found out what she did for money but she told them that as soon as they
go through school, and start work, she would stop. She later found that she was AIDS
positive. For her, she is in this profession because she is the mother and father of her
child and brothers. In the same breadth that she mentions her work, she emphasises
that she is a mother just like any woman. But, people point to her as that one who
sleeps around with men. She is not working and for one to access credit facilities, you
need collateral and she does not have that. She is in a job where she employs herself.
43
She has brought land and built a house for her family so that when she dies, they atlest
have somewhere to stay.
You cannot Stop Sex Work
Sex workers who were interviewed say that this is not a profession they are willing to
stop. Just like any job, it was precipitated by a context and as long as that context
exists, they cannot just stop sex work. Like any job, it is a source of income. Sex
workers also have needs and they need money too.
Financial Abuse, Physical Violence, Death
Sex workers are easily abused by their male clients. Men can sleep with them and
refuse to pay. Some are stabbed in the process of demanding payment. A sex worker
recently died from acid being poured on her genitalia. She could not come out clearly
to her friends about this criminal and cruel treatment she had received because of the
stigma that surrounds sex work and sex workers. Some are strangled to death. A
human rights defender lawyer reported that in Chigwirizano (Lilongwe), a sex worker
was strangled to death. The community did not even bother to investigate, even the
Police did not care about this case. The same thing happened at N’gona(Lilongwe).
Instead of seeing that the right to life of these women is being violated, the street talk
was that the person who had died was a sex worker, she had it coming.
Lack of Sex workers Network/Sisterhood
Their failure to have a good network, support system amongst themselves means that
they do not share experiences, knowledge and survival skills that are very crucial for
their livelihood. They need to know the assistance available. They need to know their
rights. They need to know how to deal with the challenges they face, the police,
clients, community, HIV/AIDS, the list is endless. This will help them not to treat sex
work as an underground thing, an issue that is very crucial for HIV/AIDS
interventions. The more a practice goes underground, the harder it is to intervene in it.
Conference, Government Hypocrisy
In 2009, sex workers had a conference “National Dialogue on the Most at Risk
Populations in Malawi” at Crossroads, Lilongwe. It was very well attended. There,
Malawi Sex Workers Network was formed. Mary Shawa attended this conference but
she just came to open the conference and deliver her speech. She did attend the
sessions where sex workers were presenting their papers. A sex worker interviewed
for this research found this very disturbing, she said she expected and wanted to
interact with her so she can get to hear our challenges and know our issues. Shawa’s
speech lamented that sexual minorities in Malawi were not coming out in the open so
that her department can work with them fight HIV/AIDS. After three weeks, that is
when the Tiwonge Chimbalanga issue happened and what surprised this sex worker is
that now the government was in the forefront arresting these sexual minority members
who had come out in the open. She was surprised that now the Radio was awash with
the laws that the two men had broken by getting married yet at the conference, the
same government had encouraged them to come out.
Theatre for Change has also approved the suggestion to have Lilongwe Sex Workers
Assistance Group formed. This still has to go through the formalisation process, it has
not taken off. It needs legal assistance.
44
Lack of formal Organisation
Because of being criminalised, the complain that they cannot have a formal
organisation. So they have no way to organise themselves. They live a life of hiding,
operate under the table and this hampers their access to information and prevention
strategies. The sex worker interviewed emphasised that as long they are in hiding,
HIV and AIDS cannot be defeated in Malawi because the one being peddled by and
through them will be operating under the table, unengaged – AIDS “siingathe
mMalawi chifukwa amatisala.”
Sex workers in Zomba have an underground grouping. They meet but for those that
sex work from their parents’ home, it is hard for them to attend meetings. When asked
about the complexion of the group that attends, it was explained that some are
married, others are quite elderly, some are 65 years old. The number is apparently
increasing.
High Transmission Vulnerability – A concoctions of power relations skewed
against the female sex worker and male client, the feminisation of poverty and
criminalisation of the profession, sex workers are very vulnerable to being transmitted
with HIV/AIDS. Some men do not disclose their status and an interview with a sex
worker revealed such a client might negotiate for 500MK for short time and later they
might say they want the lady to stay and she might charge 2500MK. In the night, the
man might ask to sleep with her ‘plain’ meaning without a condom and because one
has already stayed the night and needs the cash, especially in traditionally financially
stressful months like January and February like now – the lady might accept to sleep
with the man without a condom, figuring that it is better to go home with 2500 rather
than 500MK. Coming morning time and the sex worker wants to go home, the man
can feign having lost his money and them accuse the sex worker of having stolen the
money. The man might attack the girl and she runs away without any money and
having contracted HIV and AIDS. The women say they cannot report because their
job is illegal, we cannot exactly what we do and where we are coming from, we will
be arrested.
Apparently, the number of men who want anal sex from sex workers is not the
increase. They can offer 1000MK for plain and 500MK, of course most of the sex
workers will go for the higher paying act. One of the sex workers who was
interviewed cited an example of a friend in Mwanza who accepted to have ‘plain’ anal
sex with a white man. He was offering 3000MK but just after the act, she fell very ill.
When she went to the hospital, they told her that she had a torn vein in the anal area,
she needed immediate assistance. She was helped at Mlambe but vowed never to do it
again. She had not used lubricants and she said it was very painful.
The Dangers of Female Condoms
Female condoms have to be warn at least eight hours before the act so that they stick
to the vagina and do not disturb the male client as they make noise if not they are not
fitting properly. The problem is that when one has many customers, they can service
four men at one go. There is no time to remove the condom and as result, the male
clients can end up infecting each other.
Low Payment
45
Sex workers can be paid as low as 300MK. If you see them in a morning with a lot of
money, chances are they have stolen it. Many end up stealing because many men are
stingy, they do not pay well.
Conclusion
The transmission rate for sex workers is 71% in Malawi. This means that not focusing
on how HIV/AIDS can work for them and people who do their work, means
HIV/AIDS interventions are futile in Malawi, as far as fighting HIV/AIDS is
concerned. If the fights is comprehensive, it has to focus on the harm that is peddled
by sex work having to be done under the radar due to ostracisation and
criminalisation. We need to open up and transcend the moral discourse on this issue
and engage this issue from a human rights perspective. Such an approach would not
concern itself with whether sex worker is right or wrong, as that is something we
cannot agree on, since it often enters the realm of morality, religion and culture. Such
an approach focuses on the fact that sex workers in Malawi are human and therefore
they have rights. What we need to focus on is mapping ways for them to enjoy their
rights in ways that do not harm other people. The less they are stigmatised and forced
to hibernate, the better for HIV and AIDS prevention and management strategies. As
argued before, the less a practice is forced to go underground, the more accessible it is
to messages, people, institutions and resources.
An analysis of the way sex workers are treated, from the perspective of legal and
policy reviews right into interviews with stakeholders and sex workers themselves,
underlines that HIV/AIDS interventions are not linking them with sexual reproductive
health rights. Because sex work involves them having sex with many people, they
cannot access PEP, they are raped in prison, forced to go for HIV/AIDS tests (see
appendix 1). All this is happening because in Malawi, women have limited control
over their sexual and reproductive health because of the patriarchal gender norms and
gender relations that are skewed in favour of men. The patriarchy in Malawian
communities is deeply embedded in sexual relations. That is why we wee that legal
and policy documents condone male promiscuity. A man and a woman can engage in
a sexual act, only the woman will be called Hule.
Sex workers are not getting HIV/AIDS interventions that reach them because the
interventions are not propelled from a sexual rights perspective. The kind of sexual
and reproductive health rights education that is going on the country does not define
them as human beings who therefore have rights. This is mainly because sexual
minority rights, the rights of MSM and sex workers are criminalised.
6.0
ACTION POINTS
 End the criminalistion of MSM and sexual minorities. There is no way
HIV/AIDS interventions can succeed when the people we are trying to engage,
for example MSM and Sex workers are underground. The fact that they are
having to develop coded language shows that they are now operating
underground and the main reason is that their sexual orientation is
criminalised. What must be criminalised is any law that criminalises people’s
sexual orientation. Through the law commission, vagrancy laws in the Penal
Code should be repealed so that same sex attracted people are not persecuted.
46
 Provide training workshops for lawyers, judicial officers such as judges
and magistrates on sexual orientation and SRHR so that they can appreciate
how the Penal Code is institutionalising and perpetuating discrimination and
how that impacts HIV/AIDS interventions.
 Provide training workshops on sexual orientation education, the link
between SRHR and HIV/AIDS interventions of sexual minorities illustrating
how ineffectivity in the latter impacts the majority for,
 HIV/AIDS Counsellors,
 Chiefs,
 Parliamentarians,
 Education policy makers,
 Life skills teacher trainers and teachers,
 Youth Organisations,
 Ministry of Culture,
 Health,
 NAC s,
 Political parties,
 Executive arm of government,
 Religious leaders
 Popular artists, especially musicians.
 Increase capacity in sexuality expertise through Ministry of Gender.
 Set up special educational programs on human rights, sexuality and
HIV/AIDS, illustrating impact of not safeguarding minority rights on the
majority.
 Initiate research an African comparative history of Malawi on sexuality
that excludes Euro-western/Eastern organised religion – focusing on
LGBTI, involving indigenous institutions such as Gule Wa Mkulu (Masked
dance of central region) and religious rites.
 Increase publications of testimonies of Malawians who are MSM, let them
tell their story like what we see in Queer Malawi
 Increase publication of personal stories of Malawian sex workers.
 Investigate Police who are raping sex workers, prosecute them.
 Engage NAC on HIV/AIDS interventions on MSM and Sex work from a
SRHR and Human Rights perspectives
 Implement HIV/AIDS interventions on MSM and Sex work from a SRHR
and Human Rights perspectives
 Engage Ministry of Education on National Education Sector Plan 20082017 on HIV/AIDS and sexual minorities.
 Rely on expertise of MSM and sex workers living with HIV/AIDS on
designing interventions and train them
 Let evidence on sexuality and sexual orientation present in Malawi drive
policy, not the other way round
 Policies should clearly state that they will focus on groups marginalised due
to sexual orientation and disaggregate them. A good example is The Global
Fund’s ‘Sexual Orientation and Gender Identities in the Context of the HIV
Epidemic’ May 2010 document.
 Policies should give clear data on MSM and LGBTI in Malawi
 Increase sex worker, MSM organisations.
47
 Propagate the definition of sex worker to include male, transgender
adults and young people.
 Increase programmes targeting LGBTI and Sex workers
 Recognise the human rights approach strides in the Law Commission’s
HIV/AIDS Prevention Amendment Bill.
 KPA research on LGBTI and sex workers
7.0
CONCLUSION
An intergrated analysis of the report, from the legal review to issues that are raised
illustrates that Malawi cannot fight HIV/AIDS comprehensively if it does not resolve
the disconnect between the Constitution and Penal Code, especially if we argue that
we are a democracy and follow the rule of law. Malawi’s laws need to stop
criminalising minority sexual orientations. There is urgent need to outlaw all
homophobic and hate laws that are discriminatory. The Penal Code should be in
tandem with the Constitution, thereby making the Constitution truly the supreme law
of the land in Malawi. World Heath Organisation has seen the importance of fighting
HIV/AIDS from an SRHR perspective because it makes visible and personalises
sexual minorities such as MSM and Sex workers. National AIDS Commission needs
to borrow a leaf from this.
The fact that some MSM members are bisexual and leave on the down-low, illustrates
that not engaging such people as Malawians risks leaving an avenue that is infecting
the majority of the population, the so called heterosexual majority. NAC itself agrees
that as long as national HIV/AIDS interventions leave out a major high risk group,
our fight against this disease is futile. In other words, intensity of the HIV/AIDS
pandemic in Malawi, from a strictly health security perspective of all Malawians, not
just the sexual minorities, Malawi needs to stop criminalising sexual minorities like
MSM and Homosexuality. There is an urgent need for all stakeholders in HIV/AIDS
interventions to be sensitised on the need to link SRHR to sexual minority identities in
the discourse on HIV and AIDS, at policy and legal documents levels.
Whilst there is room for change in the Malawi Law Commission’s HIV/AIDS
Prevention Amendment Bill, it is important to note that it is an improvement in the
legal discourse on HIV/AIDS and sexual minorities in Malawi, especially when read
along the Penal Code. The bill has a section on HIV and AIDS and Human Rights. It
takes a stand against mandatory testing. It has weaknesses, especially when one
classes its recommendations and MSM denial but on the whole, those who
passionately care about sexual minorities and value the importance of an SRHR
approach to HIV/AIDS interventions, know that recognising baby steps of a human
rights approach to HIV/AIDS interventions in Malawi, is one way to improve the
situation.
The recently concluded NAC study on sex workers illustrates that their numbers are
growing. Married men sleep with sex workers and go back to their wives. Instead of
treating them as dustbins of the world, legal and policy documents need to give them
a human status and approach them from an SRHR perspective so that HIV/AIDS
interventions can reach them. Policy documents of Malawi should stop window
dressing and behaving as if Malawi has been forced to include MSM and sex workers
in interventions HIV/AIDS. There are no programmes targeting sex workers, they are
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neglected, as if they sex work with themselves and do not impact the rest of the
community in any way. Not targeting them means missing a big component of
stakeholders in this pandemic.
The case of the transgendered black South African Caster Simenya should be used as
a stepping stone to open a robust discourse on being transgendered, Malawian and
living positively. It is important to ask what is happening to the Simenyas of Malawi,
especially the rural illiterate ones. There is need for Malawi to understand that we
have intersexed, lesbians, bisexual and transgendered people. Malawi has a growing
problem of child and human trafficking, orphans and both of these open situations that
are breeding grounds for HIV/AIDS. Our papers report that children and youths are
being used to transport cocaine, what if this leads them experience anal sex? Malawi
cannot afford to bury its head in the sand. Sexual minorities are a reality in every
community, HIV/AIDS interventions need to engage them. They need to be owned as
Malawians. This will end the tendency to make MSM a donor driven issue.
Ownership of MSM and sex workers as human beings who are Malawians will allow
the state to spearhead HIV/AIDS interventions that will truly reach them as the sexual
minorities will not have operate under the table. Instead of having national policies
and laws propelling oppression and violence against MSM and Sex workers, they
would now protect them. If MSM is decriminalised, interventions will be in line with
the country’s policies. Local experts and donors can design and implement HIV/AIDS
interventions that can reach their MSM, sex workers and other sexual minorities.
This report has endeavoured to present the MSM discourse in Malawi from a
systemic and subject centered approach. From a place where one can say, this is the
dominant view of MSM and Homosexuality in Malawi, this is what informs the views
and the following is that needs to be done in order to for HIV/AIDS interventions to
reach the sexual minorities of Malawi. Evidently, and SRHR, human rights propelled
approach is long overdue, for the good of all Malawians, in their diverse sexual
orientations.
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