Malawi’s new marriage law entrenches LGBTI discrimination

Malawi has been urged to revise aspects of its newly-adopted marriage law that discriminate against LGBTI people.

On Thursday, Human Rights Watch praised the country’s Marriage, Divorce and Family Relations Act for setting 18 as the minimum age for marriage in order to prevent child marriage, but said that it also contains anti-LGBTI provisions

“By enacting a new marriage law, Malawi is telling the world that it is ready to protect girls from the abuse and exploitation that result from child marriages,” commented Agnes Odhiambo, Senior Women’s Rights Researcher at Human Rights Watch.

However, the government should also take steps to repeal provisions of the Marriage Act that discriminate against LGBTI people, she said.

The preamble to the law says, “Malawi has an obligation to meet international legal standards in its laws, and the laws on marriage and divorce are no exception.” But, according to Human Rights Watch, the wording of the new law violates Malawi’s human rights obligations to protect against discrimination based on sexual orientation and gender identity.

By defining sex as “the sex of a person at birth,” the Marriage Act denies equal rights to form a family to some transgender people. The same provision denies the right to marriage to some intersex people – those born with both male and female sex characteristics – whose sex is often assigned arbitrarily at birth.

In addition, though Malawi’s constitution does not expressly preclude marriage for same-sex couples, the Marriage Act limits marriage to “persons of the opposite sex,” ignoring the reality of same-sex relationships.

The law also reinforces the prohibition of “unnatural offenses” under Malawi’s Penal Code – a provision used to criminalise consensual same-sex relations between adults – by listing a conviction for such an offense as acceptable evidence of irretrievable marriage breakdown.

Odhiambo said that the provisions that discriminate on the basis of gender identity and sexual orientation “flagrantly violate internationally recognised human rights, reinforcing the perception that LGBTI Malawians are second-class citizens.”

The status of LGBT people in Malawi is mired in confusion. While male and female homosexuality is illegal, with penalties of up to 14-years imprisonment, the Secretary for Justice and Solicitor General Dr Janet Chikaya-Banda told a UN human rights committee last year that the authorities would not enforce the ban.

In March, Malawi’s Health Minister Jean Kalilani insisted that the country will not end its gay sex ban. “It is still a crime to anyone engaging in the practice,” she said.