UN Committee Against Torture Echoes REDRESS and CEDEP’s Concerns on Torture Against LGBTIQ+ Persons in Malawi
On 25 November 2022, the UN Committee Against Torture published its recommendations to Malawi, following interactive dialogue with the State’s delegation and detailed examination of its record on torture and other ill-treatment which took place in Geneva between 31 October and 25 November.
As part of Malawi’s review process, REDRESS and our Malawian partners, the Centre for the Development of People (CEDEP), submitted a joint report to the Committee against Torture on 30 September. The submission highlighted deficiencies in Malawian law and policy that undermine the prevention and prosecution of violent acts amounting to torture against members of the LGBTIQ+ community.
The recently published recommendations (‘concluding observations’) reflect a number of failures in Malawi’s compliance with the UN Convention against Torture (UNCAT) as highlighted in the joint report, including:
- On LGBTIQ+ torture: The Committee urged Malawi to take measures to prevent violence and discrimination against LGBTIQ+ persons on the basis of their sexual orientation and gender expression or identity. It called on the State to decriminalise consensual same-sex activities as continued criminalisation renders LGBTIQ+ persons particularly vulnerable to violence perpetrated by both State and non-State actors. The Committee also pressed Malawi to collect and share data on the number of complaints, investigations, convictions, and sentences imposed for sexual and gender-based violence, including discriminatory violence based on sexual orientation or gender expression or identity.
- On criminalisation of torture: The Committee expressed regret that torture is yet to be criminalised as a specific offence in Malawi, which means that acts amounting to torture can only be prosecuted as other ordinary criminal offenses (such as assault, rape etc.), and urged the State to establish a definition of torture in its national laws in line with the definition of torture under the UNCAT.
- On torture-tainted evidence: The Committee expressed serious concerns with regard to allegations of the common use of torture and other ill-treatment to obtain confessions and the State’s failure to prohibit the use of such evidence in proceedings. It therefore urged Malawi to amend its Criminal Procedure and Evidence Code to ensure that confessions, as well as any other statements made under torture cannot be invoked as evidence in any proceedings, except in proceedings against a person accused of torture.
- On monitoring places of detention: The Committee encouraged Malawi to ratify the Optional Protocol to the UNCAT, which calls for the establishment of an independent mechanisms for monitoring places of detention. Pending that, the Committee called on the State to ensure that international and national monitors can carry out regular, independent and unannounced visits to all detention facilities in Malawi. The Committee also voiced doubts regarding the Malawi Human Rights Commission’s ability to perform its functions effectively in the face of insufficient financial and human resources.
In addition to the above, the Committee expressed significant concerns on other issues, including lack of fundamental legal safeguards, severe prison overcrowding, the placement of persons in pretrial detention for prolonged periods, incidents of violence and deaths in custody, perpetuation of harmful traditional practices, human-trafficking, treatment of asylum seekers, and lack of protection of human rights defenders and journalists.
Malawi will have to inform the UN Committee against Torture in a year’s time regarding the steps taken in relation to the most serious priority matters identified by the Committee. REDRESS and CEDEP will continue to monitor and report on Malawi’s progress.
Photo by Anete Lusina.