Homosexuality and privacy : Rep v Soko & Another under the magnifying glass

• Published date: 01 January 2011
• DOI: 10.10520/EJC123681
• Date: 01 January 2011
• Pages: 55-74
• Author: Moses Retselisitsoe Phooko

HOMOSEXUALITY AND PRIVACY:

REP V SOKO & ANOTHER UNDER THE

MAGNIFYING GLASS

Moses Retselisitsoe Phooko*

ABSTRACT

A Malawian couple, Steven Monjeza Soko and Tiwonge Chimbalanga

Kachepa, decided to celebrate their engagement publicly. Within two days of

the celebration, the couple was charged with ‘unnatural acts’ and ‘gross in-

decency’, and later subjected to humiliating investigatory tactics, denied

bail, convicted and sentenced to 15 years of imprisonment. Malawi’s public

humiliation of the gay couple, the criminal trial and its conduct constitute a

violation of its Constitution and international law. In particular, the Penal

Code of Malawi, which purports to criminalise sodomy, violates the right to

privacy of gay people, contrary to the Malawian Constitution itself and the

International Covenant on Civil and Political Rights, which Malawi has

signed and ratified.

I INTRODUCTION

There is a dearth of decided cases on homosexual rights in Africa. The

case of Rep vSoko & Another 1,in which a magistrates’ court in Malawi recently

convicted two male persons who had entered into a marriage engagement of

buggery and indecent practices, is thus of considerable interest to many in Af-

rica and beyond. It is worthwhile, as a point of departure, to discuss briefly the

prevailing social attitudes to homosexuality in Malawi and Africa in general.

HOMOSEXUALITY AND PRIVACY 55

LLD Candidate (University of South Africa), LLM in International Human Rights Law (Univer

sity of Notre Dame, USA), LLB (Hons), Dip Human Rights (North West University, SA);

Advocate of the High Court of South Africa; Lecturer, College of Law, University of South Africa;

phookor@gmail.com. I am grateful to Prof D Chirwa, Matilda Lasseko Phooko and Arnold

Bimhafortheirvaluablecommentsonanearlierversionofthisthisarticle.

*

1Rep v Soko & Another Criminal Case No 359 of 2009 [2010] MWHC 2 (unreported). As the origi

nal judgment does not have page and paragraph number, references to this judgment will be

made without specifying any page or paragraph. The judgment also uses ‘Tiwonge’ and ‘Tionge’

interchangeably. To avoid confusion, ‘Tiwonge’ is the preferred name.

The dominant religions in Malawi are Christianity and Islam.2These religions

influence social values of the Malawian society. For example, social construc-

tions of gender and sex are largely shaped by these religions.3Amajorityof

Christian faiths accept heterosexual relations only.4This has led some organi-

sations to form anti-homosexuality movements and campaigns against

homosexuality in Malawi.5

The disapproval of homosexuality is not only prevalent in Malawi: it is

also common in many African countries. For example, Uganda has proposed

an anti-homosexuality bill, which prescribes capital punishment for anyone

found in violation of the proposed legislation.6In May 2005, 11 persons In

Cameroon were detained and prosecuted under anti-sodomy law.7Even in

South Africa, where sodomy has been decriminalised, violent attacks on ho-

mosexuals are reported.8What is more, it is not uncommon for state

presidents in Africa to make derogatory remarks against homosexuals. For ex-

ample, in one of his attacks on homosexuals in Zimbabwe, President Mugabe

said:

I find it extremely outrageous and repugnant to my human conscience that such

immoral and repulsive organisations, like those of homosexuals, who offend

both against the law of nature and the morals of religious beliefs espoused by our

society, should have any advocates in our midst and elsewhere in the world.9

Other opponents of homosexuality have gone as far as claiming that ‘ho-

mosexuality is a decadent, bourgeois ... innovation forced upon colonial

Africa’.10 Such disparaging remarks contribute to the persecution of homosex-

uals and the violation of their fundamental rights such as the right to privacy.

56 (2011) MLJ VOL.5, ISSUE 1

2CW Mesikano ‘Report on Malawi: 9th Session of the universal periodic review November

2010’, available at http://lib.ohchr.org/HRBodies/UPR/Documents/session9/

MW/JS3 WCC Jointsubmission 3.pdf (accessed 15 February 2012).

3As above.

4As above.

5As above.

6Z Alsop ‘Uganda’s anti gay Bill inspired by the US’, available at http://www.time.com/time/

world/article/0,8599,1946645,00.html (accessed 20 March 2012).

7François Ayissi et al. v Cameroon, Working Group on Arbitrary Detention, Opinion No 22/2006,

UN Doc A/HRC/4/40/Add.1 at 91 (2006).

8SAPA ‘At least 8 gays killed in Gauteng’, available at http://www.iol.co.za/news/

crime courts/at least 8 gays killed ingauteng 1.1246883 (accessed 15 March 2012).

9S Chiwanga ‘Attempts to sneak homosexuality into constitution’, available at

http://www.mask.org.za/attemps to sneak homosexuality into constitution/ (accessed 30

March 2012).

10 SO Murray ‘Homosexuality in “traditional” Sub Saharan Africa and contemporary South Af

rica’, available at http://semgai.free.fr/doc et pdf/africa A4.pdf (accessed 24 March 2012).