Introduction
This essay examines the case of Jan Willem Akster and Jana Gonani v Attorney General in Malawi, focusing on the ongoing challenges surrounding gender equality within the country’s legal framework. Decided on 28 June 2024 by the High Court in Blantyre, sitting as a Constitutional Court, this case addressed the constitutionality of provisions in the Penal Code criminalising same-sex relationships. Using the FILAC (Facts, Issues, Law, Application, Conclusion) method, this analysis will dissect the case, with particular attention to Sections 153 and 154 of the Penal Code. The essay also reflects on critical issues raised by this case concerning gender equality in Malawi’s legal landscape, highlighting systemic barriers to achieving equity for sexual minorities. This discussion is rooted in a legal perspective, drawing on relevant sources to evaluate the broader implications of the court’s decision.
Analysis Using the FILAC Method
Facts
Jan Willem Akster, a Dutch national, and Jana Gonani, a Malawian, challenged the constitutionality of Sections 153 and 154 of the Malawi Penal Code, which criminalise “carnal knowledge against the order of nature” with penalties of up to 14 years imprisonment. Both applicants faced criminal charges in magistrate courts for engaging in same-sex relationships and sought a declaration from the Constitutional Court that these provisions violated their rights. The case was heard by a three-judge panel—Joseph Chigona, Vikochi Chima, and Chimbizgani Kacheche—who dismissed the application on 28 June 2024, arguing that the applicants failed to provide evidence of discrimination and suggesting parliamentary action for any desired legal changes.
Issues
The central issue was whether Sections 153 and 154 infringed upon the applicants’ constitutional rights, particularly regarding equality and non-discrimination. The case raised questions about whether criminalising consensual same-sex relationships constitutes a violation of fundamental human rights enshrined in Malawi’s Constitution, and whether the law disproportionately discriminates against sexual minorities.
Law
Malawi’s Constitution guarantees equality before the law under Section 20, prohibiting discrimination based on various grounds. However, sexual orientation is not explicitly mentioned as a protected category. Sections 153 and 154 of the Penal Code, rooted in colonial-era legislation, criminalise same-sex conduct, reflecting a legal framework that arguably conflicts with international human rights standards, such as those outlined in the Universal Declaration of Human Rights (United Nations, 1948).
Application
Applying the law to the facts, the court found no evidence of direct discrimination, maintaining that the provisions apply uniformly to all persons regardless of sexual orientation. However, this interpretation overlooks the disproportionate impact on sexual minorities, who are uniquely targeted by these laws. The court’s suggestion that Parliament should amend the law if change is desired shifts responsibility away from judicial protection of rights, arguably undermining constitutional guarantees of equality. Furthermore, the reliance on outdated colonial laws highlights a disconnect between Malawi’s legal system and evolving global norms on gender and sexual equality.
Conclusion
The dismissal of the case indicates a judicial reluctance to challenge discriminatory laws, perpetuating a legal environment hostile to sexual minorities. This decision reinforces the status quo, limiting progress toward gender equality in Malawi’s legal landscape.
Critical Issues for Gender Equality in Malawi
This case raises several pivotal issues concerning gender equality. Firstly, the absence of explicit constitutional protection for sexual orientation leaves sexual minorities vulnerable to systemic discrimination. Secondly, the judiciary’s deference to Parliament in matters of rights protection suggests a gap in judicial activism, which is often crucial for marginalised groups. Lastly, the persistence of colonial-era laws, as noted in broader discussions of African legal systems (Tamale, 2011), reflects a historical inertia that hinders alignment with international human rights standards. These challenges highlight the urgency of legal reform to ensure inclusivity and equality for all, regardless of sexual orientation.
Conclusion
In summary, the case of Jan Willem Akster and Jana Gonani v Attorney General underscores significant barriers to gender equality in Malawi’s legal framework. Through the FILAC analysis, it is evident that outdated laws and judicial conservatism limit protections for sexual minorities, perpetuating discrimination. Critical issues include the lack of explicit constitutional safeguards, judicial reluctance to address rights violations, and the enduring influence of colonial legislation. These challenges call for legislative and societal reforms to align Malawi’s laws with principles of equity and human dignity. Addressing these systemic issues is essential to fostering a more inclusive legal landscape that upholds the rights of all citizens.
References
- Tamale, S. (2011) African Sexualities: A Reader. Pambazuka Press.
- United Nations. (1948) Universal Declaration of Human Rights. United Nations.
