Are Southern Africa’s Human Rights Commissions equipped to protect queer rights?
Eric Sambisa’s gamble did not pay off. In December 2015, the Malawian became the first person to openly come at as gay on national television.
“Being gay in Malawi is always associated with negatives. I wanted to show the Malawian nation that we are human beings ... like every other citizen in the country,” he says.
But there were consequences to his decision.
“My life became hell after that. I had to run away out of town but I had no money to travel to faraway places. I still don’t have good ties with my family.”
Shortly after Sambisa’s coming out, Kenneth Msonda, spokesperson for the country’s opposition party, People’s Party (PP), called for the killing of the country’s gay people.
Taking to Facebook, Msonda wrote: “Arresting them won’t address this problem because sooner or later they are being released on bail. The best way to deal with this problem is to KILL them!”
“I couldn’t go to our Human Rights Commission, when I know it is already associated with the government and it felt like the government was hunting me. I have never heard the Malawi Human Rights Commission caring about LGBTI issues. They represent the heterosexual community,” says Sambisa.
Speaking to the Mail & Guardian earlier this year, Gift Trapence, director of the Centre for the Development of People said that when President Peter Mutharika came into power in 2014, he was asked during presidential debates what his thoughts on gay rights were, he said he would put it to a referendum.
There never was a referendum but in November 2016, the country’s government tasked the Malawi Human Rights Commission (MHRC) with conducting a country-wide poll to look into Malawian’s attitude to legal equality for LGBTI people and counting the number of queer people in the country. It was a move which had human rights activists up in arms.
“If the MHRC really want to do something, they should investigate abuses against LGBTI people,” Trapence.
“We don’t want the public enquiry. We want it cancelled. It will only further the discrimination and abuse faced by LGBTI people in Malawi,” he said.
A few months later, following consultations with civil rights organisation, the Commission agreed to abandon the survey and, instead, undertake a study looking into the issue of queer rights.
The objective of the study was to gather information “on laws, practices, perceptions, attitudes” that affect Malawi’s LGBTI people to inform government’s legal and policy position.
Although Trapence welcomed the recent decision dropping the poll, saying, “this is a progressive decision for the Commission”, he said the Commission’s plan to do a count of the nation’s sexual minorities is of concern.
“Even if there is one LGBTI person in Malawi, human rights principles tells us that these people’s rights are the same as anyone else.”
Activists have also raised concerns about some of the commissioners being linked to conservative churches pushing a strong anti-queer agenda.
A 2016 conference, titled Raising the Alarm, warned Malawians about the country’s “values [being] under serious secular attack”. Posters advertising the conference listed discussion points, including “Life vs abortion ‘rights’” and “man/woman marriage vs. LGBT ‘rights’”. The Commission’s Patrick Semphere was one of the event’s main speakers.
Human rights activist, Alan Msosa, says: “This is just one reason why it would be difficult to convince me that our MHRC can be progressive in the proposed inquiry.”
In April this year, as part of Zimbabwe’s Independence Day celebrations, one of the Zimbabwe Human Rights Commission’s (ZHRC) commissioners made statements praising president Robert Mugabe’s anti-queer views.
Delivering her sermon as part of the festivities, Commissioner Petunia Chiriseri - who is also a preacher - praised the president for taking “a firm stand against unbiblical, un-cultural, unacceptable practices which foreigners…seek to impose upon Africa”.
In response to the statements, Chesterfield Samba, director of Gays and Lesbian of Zimbabwe, lodged a formal complaint with the ZHRC.
“The statements she made were not in line with her position as a Commissioner,” says Samba. “They were also likely to affect her objectivity when it comes to complaints that would come from the LGBTI community.”
The complaint yielded some success, with the Commission acknowledging that Chiriseri’s statements were “out of line with her responsibility as a commissioner”.
Says Samba: “We might not have received the public apology we had wanted, but we have to give them credit in that they responded to the issue. But ... people don’t have the confidence to use these commissions.”
Ricky Nathanson is a transgender rights activist who has little faith in the country’s Human Rights Commission.
In January 2014 she was arrested on a charge of criminal nuisance after refusing to be bribed by someone she had known.
Kept in a holding cell for two nights, Nathanson was forced to undergo gender verification examinations. “It really was very humiliating and degrading,” she says.
As to whether she thought she could approach the ZHRC, Nathanson delivers a straightforward: “No.The Commissioners are all government appointees, so their independence is really, really questionable.”
Nathanson, who is the executive director of the transgender rights advocacy organisation, Trans, Research, Education and Training (Treat), adds that, after “having read [Chiriseri’s] statements, I really don’t think a case like mine would have been entertained by our HRC.”
Trapence says of Malawi’s commission: “We have to understand that the commission is fairly new. So our attempt is to empower LGBTI communities to test the Commission and to use the channels that are available so that they can register complaints.”
A report commissioned by the Other Foundation in 2016 found that Malawi and Zimbabwe were two of the “countries in the Southern African region [that] had dramatically low levels of tolerance for homosexuals”, at 6% and 10%, respectively.
“Most of the countries in the region were [however] significantly above the continental average”. Namibia, at 55%, was one of these, said the report, called Canaries in the Coal Mines.
Rachel Gawases is the executive director of the Namibian sex worker’s rights organisation, Voice of Hope Trust. She says that Namibia’s equivalent to a human rights commission the Namibian Ombudsman has been more successful.
“We have taken several cases to the Ombudsman’s office [and] he has pushed to ensure that those cases are taken up and dealt with accordingly so that justice prevails.”
Speaking at a queer rights conference held last week in Sandton, the country’s ombudsman, John Walters, spoke of his office’s commitment to defending the rights of sexual minorities.
Gawases acknowledges that the Ombudsman’s office “can only really make recommendations” But its support of the rights of sexual minorities, she says, “shows us that there are people who have an interest in understanding who we are, what we do and perceive us as human beings - irrespective of who we are; our gender identity, sexual orientation or profession. We feel included, appreciated as well as recognised as Namibian citizens.”
Close on two years since his ill-fated gamble, Sambisa - now the director of his own queer rights organisation, Nyasa Rainbow Alliance - has yet to feel such recognition in his country of birth, to which he continues to remain loyal.
“There were some times I wished I could leave Malawi, but that would be the last thing for me to do. Sometimes I am still scared, but I think I’m strong. I think I’m just a survivor.”
The Malawi Human Rights Commission did not respond to questions sent by Mail & Guardian.
Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian.