Jana Gonani’s colourful clothing was half open, revealing a multicolored necklace as she hurried past security guards to satisfy her visitors.
” The peacefulness colors resemble rainbow colors, the colors that show who I am, so I just like the jewellery.” In an interview with openDemocracy in November, she stated,” I have no intention of hiding my identity even while I am here in captivity.”
Gonani, a 29-year-old trans woman from Malawi who was imprisoned in December 2021, is now incarcerated for eight years at Chichiri Men’s Prison in Blantyre City for two counts of “false pretense”- for presenting herself as woman – and one count of an “unnatural crime,” both crimes under the penal code of the colonial era.
Gonani challenged the constitutionality of Section 153 of this law pertaining to “unnatural offences,” a British colonial legal term for sodomy or homosexual sex, in February 2022 with the aid of the Malawian LGBTIQ organization Nyasa rainbow Alliance ( NRA ).
The public attorney charged Gonani, a sex worker at the time of her imprisonment, with obtaining goods under “false pretense” after one of the clients accused the other of falsely “representing” themselves as women after they had two sexual encounters in one hour. The “unnatural offense” was not brought against the customer.
importance of the case
Gonani’s case is important in the fight for LGBTIQ rights because this is the first instance in which the “unnatural offence” law, the single anti-homosexuality legislation in Malawi, has been legally contested on its constitutionality.
Although a group of Malawian MPs visited the Ugandan parliament in July and praised its Anti-Homosexuality law passed this year, unlike other nations like Ghana, Uganda, and Kenya, there have n’t been any attempts by the parliament to enact new anti-gay laws.
Speaking to openDemocracy, Ousman Khenzi, a lawyer with the NRA, stated that the organization’s support for Gonani was motivated by the idea that “[A] law that criminalizes similar sexual relationships between two consenting people in secret serves no useful purpose other than fueling the harassment and discrimination of LGBTI people in Malawi.”
According to openDemocracy sexuality being criminalized in Malawi has made queer campaigning challenging, according to George Hopkins Kachimanga, executive chairman of the LGBTIQ-focused Social Justice Foundation.
Because we are constrained by the criminalization of the same physical works, he said,” We are limited in providing a safe place, including for speaking out on LGBTIQ problems.”
According to a 2018 Human Rights Watch report, LGBTIQ people are at risk of arbitrary arrests, physical abuse, and regular discrimination because same-sex conduct is made illegal.
This legal issue gives Gonani the chance to ask for” justice being done to my situation and the people who are like me.”
She continued,” There are many human rights violations on me and LGBTQ people in this country.”
Prince Mikel, a trans man and LGBTIQ advocate from Malawi who first met Gonani in 2017, sees the incident as an opportunity to promote the right of transgender and sex workers in Malawi.
The penal code has been passive on gender identification, but the majority of trans people are criminalized based on their sexual orientation, so it’s an option for advocacy around it, according to Mikel. Additionally, he claimed that customers blackmail transgender sex workers because of their female personality.
legitimate concerns brought up
Gonani was subjected to a ribbon research by the police to determine her natural gender when she was arrested in October 2021, according to the NRA. Due to her gender identity, she was even compelled to have her mental health evaluated.
According to Bob Chikango, Gonani’s attorney, the strip research and medical assessment violated his right to privacy and human dignity, he did not give his consent to the research, and the laws on “unnatural offense” does not have” sufficient uniqueness” in its application, according to openDemocracy.
In regards to the final stage, Chikango clarified:” Our democratic law mandates that a person who is accused of an offense be given full knowledge of the offense.” We observed that this was not done in the Gonani scenario.
The accused must be made aware of what they did that violated the law of nature, which was not done for Gonani, regardless of whether they engaged in dental, anal, or vaginal intercourse.
Adding a alleged sexual offender to Gonani’s event
There have been some difficulties in Gonani’s legal problem.
Gonani’s petition and that of another applicant, Wiliam Akster, a French national accused of nine matters of physical abuse against boys, the majority of whom were young men, were combined by the High Court in 2023. Akster was the director of the Timotheos Foundation, a French church aid organization that works with vulnerable children in Malawi, when he was arrested in 2020.
On the grounds that his physical contacts with the alleged victims were lawful, Akster’s complaint questioned the constitutionality of the “unnatural offence” law. Yet sexual similar sexual acts between adults are illegal under the law in question. Akster admitted to the judge that he is straight.
According to Chikango, the court added Gonani as a second petitioner on the case and” consolidated the two saying they are dealing with the same issue so we ca n’t have two parallel courts making different decisions.”
However, some LGBTIQ organizers have expressed concern and anxiety about how the merging of the two instances will likely worsen the belief of sexual minorities and gender different people in the nation.
The consolidation of the petitions, according to Micheal Kaiyatsa, executive director of Malawi’s Center for Human Rights and Rehabilitation ( CHRR ), is likely to make the advocacy and advancements already made on the issues “raised” more difficult. On the Gonani situation, CHRR is an amicus curiae, which is Latin for “friend of the judge.” This refers to a person or group that is not involved in the case but is allowed to provide data to the court so that it can decide.
Because Akster’s situation involves physical abuse, these two circumstances are distinct from one another. The likelihood that the court will combine a general judgment against the other case ( Gonani’s case ) is high. I’m hoping the judge may be able to distinguish between different problems. Kaiyatsa remarked.
According to Mikel, Akster, a white man, the court case “feeds the view of our citizens that homosexuality was imported” because he was at the “front of advocating for LGBT right.”
” I’ve seen comments on social media where some users say,” Just send that person back to their country.” Because white supremacy and Black integrity have always been at the forefront of the battle for LGBTIQ right in Malawi, it has caused problems for activists, he continued.
Regarding case mergers, Gonani remarked,” I do n’t feel good about my case being combined with another one that is deemed to be different… but this is way beyond me.”
The two petition ‘ situations will be sent back to their particular lower courts of origin for evaluation, according to Chikango, if the High Court rules that the “unnatural crime” law is unconstitutional.
Anti-rights protests
Even before the two circumstances were combined, anti-gay rights organizations intensified their opposition to Gonani’s complaint.
Prior to Gonani’s event, some religious organizations staged anti-LGBTIQ protests in July in which they denounced same-sex relationships, despite the fact that this issue was not mentioned in GoNanis ‘ petition.
The issue of the legalization of same-sex relationship has been brought up by the faith community in relation to the case with the intention of escalating people outrage over the situation. According to Khenzi of the NRA, this was their plan to omit the real problems that the candidates had brought up in court.
Khenzi added that in June, NRA headquarters were broken into, trashed, and office supplies like computers were taken. He believes this was related to the Gonani event, which has typically resulted in “escalating cases of murder and abuse of activists in Malawi.”
Gonani, a practicing Muslim, advised those who adhere to her faith and others to simply acknowledge who she is. I am a human being, just like everyone else, she declared. Hearing that spiritual leaders and other faith groups appear to be against folks like me hurts me.
Even in the face of this criticism, activists are optimistic about the case’s result.
The petition’s arguments, according to Chikango, have been finished, and the events are then awaiting a decision that could take anywhere from one dozen to several weeks.
Chikango said:” We did our work correctly, and we are expecting the best from the court,” even though he was unable to comment on the likelihood of a victory.
Gonani stated,” I want justice to be served in my case and [for ] other ] people like me because I know I’m not the only trans woman in Malawi or the world.
