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Submission to the UN Committee Against Torture Calls on Malawi to Tackle LGBTIQ+ Torture

Today, REDRESS and our Malawian partners, the Centre for the Development of People (CEDEP), made a submission to the Committee against Torture as part of its examination of Malawi’s treaty obligations, which will take place between 31 October and 25 November 2022.  

The submission focuses on deficiencies in Malawian law and policy that undermine the government’s ability to effectively prevent and prosecute violent acts that amount to torture, especially those committed against members of the LGBTIQ+ community. 

Violence, Torture and Discrimination against LGBTIQ+ persons in Malawi  

Physical and psychological assault and sexual abuse against LGBTIQ+ persons in Malawi on the basis of discrimination on the basis of their sexual orientation or gender identity is commonplace. The submission sheds light on the fact that such violence often amounts to torture and other ill-treatment under international law, although it is rarely characterised as such. It also notes the State’s failure to prevent such discriminatory violence against LGBTIQ+ persons, and treat it as torture. 

For instance, torture is not criminalised as a separate offence under national law, which means that acts amounting to torture can only be prosecuted as other ordinary criminal offences, such as assault, grievous harm, and rape. This is problematic because prosecution of violence against LGBTIQ+ persons as torture is essential to alert perpetrators, victims and the general public of the gravity of the crime and to deter further violence. It also ensures that acts of torture are punished with adequate penalties, proportionate to the gravity of the crime. 

Further, violence against LGBTIQ+ persons in Malawi is not just fuelled by social discrimination. It is also ingrained in Malawi’s legal system. The Malawi Penal Code Act defines consensual same-sex acts and relations between adults as ‘acts against nature’ and ‘gross indecency’, and sanctions them with imprisonment of up to 14 years. Criminalisation of same-sex acts tends to increase the risk of violence by State authorities against the LGBTIQ+ community and to encourage violence by non-State actors. It is not uncommon for LGBTIQ+ people to be attacked and sexually abused with the explicit excuse of ‘correcting their condition’ or ‘punishing them for being non-conforming’, actions which can be legitimised by the criminalisation of same-sex acts.  

Criminalisation of same-sex conducts also deters victims of abuse from coming forward to report violence that they have suffered, due to fear of further discrimination and abuse. LGBTIQ+ victims of violence are regularly denied medical attention, insulted and arbitrarily detained by law enforcement officers, forcing them to endure abuse unaided. This results in underreporting which ultimately hinders the capacity of State authorities to investigate discrimination-fuelled assaults on LGBTIQ+ persons. And on the rare occasions that a case of violence against LGBTIQ+ persons is reported, the discriminatory aspect of the crime is often either dismissed by the police as irrelevant or is hidden by the victims to avoid further abuse.  

As Courts in Malawi have noted, there is an urgent need to improve investigations into officer misconduct, including torture and other ill-treatment. This is particularly necessary in cases of violence against LGBTIQ+ persons, as cases of violence based on discrimination impose an enhanced duty to investigate and should not be treated on equal footing with ‘ordinary cases’ – an issue recognised by international human rights courts. 

Considering this context in Malawi, REDRESS and CEDEP submitted recommendations to the CAT on how the State can tackle torture and ill-treatment against LGBTIQ+ persons in Malawi, and increase accountability for perpetrators. Recommendations include law reform to criminalise torture as a separate offence and decriminalise same-sex acts, policy reforms and educational initiatives to address the root causes of torture against LGBTIQ+ persons.  

About our Partners CEDEP 

The Centre for the Development of People (CEDEP) is an independent organisation dedicated to protecting the well-being of Lesbians, Gays, Bisexuals, Transgender and Intersex (LGBTI) people and other vulnerable groups in Malawi. They mainly work in the advocacy for equal treatment, research on discrimination and gender, and the improvement of LGBTIQ+ related health services. Learn more about their work here. 

About REDRESS’s work on justice for LGBTIQ+ torture  

We are working alongside a small number of local organisations (in Kenya, Malawi, South Africa and Uganda) on advocacy initiatives relevant to their jurisdictions, and on legal casework to improve LGBTIQ+ torture survivors’ access to justice. Further information can be found here. 

Photo by Anete Lusina.