Malawi’s Constitutional Court on Friday dismissed the case of two applicants who wanted it to legalize same-sex relationships. State lawyers welcomed the ruling while lawyers for the applicants expressed disappointment.
The applicants, Jan Willem Akster from the Netherlands and a Malawian transgender man, Jana Gonani, brought their case to the Constitutional Court for interpretation of Malawi's anti-homosexuality laws following their arrest in 2021.
Akster is currently facing nine charges of sexual abuse and sodomy, while Gonani is charged with unnatural offenses.
They said Malawi’s laws violate their fundamental rights, including a right to privacy and dignity.
However, Judges Joseph Chigona, Vikochi Chima and Chimbizgani Kacheche rejected their arguments.
Chigona said the applicants failed to bring evidence of how the provisions in the country's laws discriminated against homosexuals.
Chigona also said Akster failed to prove that Malawi’s laws violated his right to health.
“The first applicant was asked in a cross examination if he had ever accessed a public hospital and replied that he had gone to Zomba Central Hospital after he had been involved in a car accident," Chigona said. "When he was asked about his experience there, especially if he was asked about his sexual orientation before he was assisted, he said he was not. He actually said that he was medically assisted so well. The only complaint he had about the facility were spiders in the ward.”
Chigona said the court also dismissed claims that Malawi police violated Gonani’s right to privacy when they ordered him to undress, to confirm his claims that he was transgender.
“We know that by Section 24 of Criminal Procedure and Evidence Code that police are empowered to search a suspect who is reasonably suspected of having committed a particular offense and who has been arrested," the judge said. "The caveat is that the search only extends as it is reasonably required for discovering a thing upon this person in connection to the offenses he was suspected of.”
Minority rights activists and religious leaders attended the delivery of the judgment, which took over six hours.
Rights activist Michael Kaiyatsa of the Center for Human Rights and Rehabilitation said he was not happy with the ruling but would comment more after going through the written judgment.
Defense attorney Bob Chimkango said, “To be honest, we are satisfied with the process, but the only thing that we may not be agreeing with is the judgment itself. But it’s too early to comment as you will notice it’s a 135-page document. We were just listening — we were not working on it. So we will be waiting for it to be given to us, analyze it and then advise the client accordingly.”
A spokesperson for Ministry of Justice, Frank Namangale told reporters outside the court that the government was happy with the ruling.
Same-sex marriages have been a controversial issue in Malawi.
In July 2023, religious leaders led street protests across the country against the potential legalization of same-sex marriage.
Friday’s judgment means homosexuality remains an offense in Malawi, punishable by a maximum prison sentence of 14 years.
The Constitutional Court said Friday that the applicants were free to ask parliament to amend the country’s homosexuality laws if they were not satisfied with its judgment.
