The High court sitting as a Constitutional Court, will hear a challenge by Nyasa Rainbow Alliance (NRA) against refusal by the Ministry of Justice through the office of the Registrar General to register them as an organisation.
The hearing will last for a week: started on Monday 26th to 30th September 2022.
NRA advocates for the rights of LGBTIQ+ persons in Malawi, including through the provision of support and referral to welfare and HIV services.
The Registrar General rejected the NRA’s application for registration, stating that the Penal Code criminalises consensual sex between same-sex persons and that NRA’s membership engages in such unlawful practices.
The State did not provide any evidence to support its claims.
The case brought before the High Court is not for decriminalising same-sex sexual conduct but for registering NRA as an organisation that strives to protect all persons’ rights and fundamental freedoms, including LGBTIQ+ individuals.
The Penal Code prohibits same-sex sexual conduct or acts but does not criminalise individuals based on their sexual orientation or gender identity.
In its submissions, NRA argues that the refusal to register the organisation violates the human rights of LGBTIQ+ persons, such as, amongst many others, the right to equal treatment and protection before the law, the right not to be discriminated against based on sexual orientation, gender identity and expression; the right to freedom of association, assembly, and expression, and to be treated in a manner that respects their dignity.
Timeline of events
NRA under the EU co-funded Out and Proud project, a program whose overall objective is to improve legislative framework and non- discriminatory environment in favor of LGBTIQ+ people in Southern Africa, held a consultation workshop, in the presence of Malawi Human Rights Commission Representative and SALC lawyer, on cases that NRA is handling in Courts.
The cases are; NRA registration case and Jana Gonani unfair sentence.
On 26 July 2016, the Board of Trustees of Nyasa Rainbow Alliance (NRA) applied for the organization to be registered as a Trust under the laws of Malawi.
However, on 18 May 2017, the Ministry of Justice’s Department of the Registrar General in Malawi sent a letter to them rejecting the proposed registration.
On 26 July 2017, NRA filed an application for leave for judicial review proceedings against the decision of the Justice Ministry to reject their association/organization’s application to be registered under the Trustees Incorporation Act. The application for leave was granted on 12 September 2017.
On 15 March 2018, the Court referred the matter for certification by the Chief Justice as a constitutional matter. After the case was certified as a constitutional matter, a panel of three judges, sitting as a Constitutional Court, had to be constituted. The first panel, failed to set a hearing date due to election petitions taking precedence on the court roll.
Thereafter, the Covid-19 pandemic further delayed court matters. In November 2021, a new panel of judges were constituted.
Background of Gonani case
On 20th October, 2021, Mangochi police received information that there was a certain man who was dressing himself as a woman and was within the Mangochi township. It was alleged that he was stealing from men.
While at Mangochi Police Station, the appellant was told to choose between a male officer or a female officer for genital verification. Although the Appellant chose a female officer for the exercise, the officer who inspected her genitals was a man.
Upon seeing her genitals, the police officer then proceeded to place the appellant in a male cell despite the fact that she identified herself as female. The appeal essentially seeks an order of the court quashing the conviction of the Appellant that would give rise to her immediate acquittal.
The motion also seeks an order of the court setting aside the proceedings of the lower court for various constitutional violations. Alternatively, the appeal seeks an order setting aside the proceedings in the lower court, for mistrial and ordering a retrial, and an alternative order setting aside the sentences and substituting them with lesser sentences.
NRA says it wants to spread awareness and build capacity to the LGBTQI+ community as well as other people so that they are well informed and equipped with information about such cases, them being cases of interest and to repeal the laws that are infringing the rights of the LGBTIQ+ people in Malawi.