We have all seen the stories in the media about spectacular anti-gay laws in Uganda and Malawi. Here is the real background.
Uganda, Malawi, Zambia, Tanzania, Kenya, used to be British colonies. They achieved political independence from 1960 to 1964.
The British famously have a bee up their bonnet about sexuality, and homosexuality was illegal in parts of Britain (Northern Ireland) as late as 1981.
This means that when these colonies became independent in the 1960s, homosexuality was illegal in Britain, and this was reflected in the criminal laws of it's former colonies, the Penal Code.
It is in these former British colonies where homosexuality is *explicitly* forbidden by the law. In former Portuguese, French, Belgian and Italian colonies, this is *not the case*.
However, in the early to mid 1990s, many of these countries had constitutions written, that were very modern. In every one, there is an article that specifically bans discrimination, based on 'sex', 'social' or 'other' status.
In other words, if anyone was successfully prosecuted under the anti-gay penal code laws, it is highly likely that their conviction *and with it the law* would be overturned on appeal.
This is why there are virtually no prosecutions for homosexuality in these former British colonies.
And then there was Peter Thatchell, and his group who managed to convince a gay Malawian couple not only to declare themselves to be gay, but to get married in public, leaving the authorities with no choice to enforce the law. They were convicted and appealed, however, immediately a huge amount of pressure was brought to bear on the President of the country, Bingu wa Mutharika. The country was even threatened with the suspension of donor aid, a favorite tool of manipulation in developing countries. The result was, that the president intervened in the legal process (remember that their conviction was still on appeal, where it would be tested against the constitution), and pardoned the two individuals.
What this did, was create the worst of all outcomes. First of all, it made the government look weak and at the beck and call of 'donors'. Secondly, it represented a massive overreach of executive power into the ongoing judicial process. Thirdly, it prevented the penal code from being tested by the constitution, which means that the verdict could not be overturned and after all the media publicity, homosexuality is still illegal according to the Malawian penal code.
Exactly the same situation exists in Uganda, although there the pressure comes from the other side, namely US evangelicals and republican politicians. Recently, Rachel Maddow did a great job exposing even more draconian penal code laws being introduced in Uganda, where president Museveni is one of the West's (specifically the UK and US) allies in Central Africa. In Uganda, it is 'The Family' (also known as 'The Fellowship'), a cabal of rightwing US politicians and evangelists who are behind this publicity stunt. It is a publicity stunt, because like in Malawi, Uganda has a constitution that protects against discrimination. On top of that, in a recent ruling, Ugandan Supreme Court judge Stella Arach, found that gay rights apply to at least Articles 23, 24 and 27 of articles 20 to 45 of the Ugandan Constitution.
JUDGE STELLA ARACH, UGANDAN SUPREME COURT
Human Rights Victory: Ugandan Transgender, Lesbian, and Gay human rights upheld in the high court of Uganda
CONSTITUTION OF THE REPUBLIC OF MALAWI
Equality 20. -
1. Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, *sex*, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.
2. Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts.
Lawyer Chrispine Sibande
Sibande said the Malawi Constitution prohibits any form of discrimination of persons. He said Section 20 guarantees all persons equal and effective protection against discrimination on grounds of
race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status. The lawyer said same-sex marriage is covered in the Section by the words “other status”.
The 1995 Constitution of Uganda states in Article 21:
" 21. Equality and freedom from discrimination.
" (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
" (2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability. "
It goes on, but this is the gist of it.
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