After their traditional engagement on December 27, 2009, Steven Monjeza and Tionge Chimbalanga were arrested on December 28, 2009 and charged "unnatural offenses" and "indecent practices between males" (Sections 153 and 156 of the Malawi Penal Code) with a potential sentence of up to 14 and 5 years in prison, respectively.
The Court has denied bail to Monjeza and Chimbalanga, citing "fear that the public will be hostile against them" as justification for their ongoing incarceration. As their defenders have argued, however, a continued stay in prison instead exposes them to more abuse and the violation of their fundamental rights at the hands of fellow inmates and jailers.
The arrests and subsequent mistreatment of Monjeza and Chimbalanga violate their constitutional rights to equality (Article 20), to freedom of association, conscience, opinion, and expression (Articles 32-35), and to the enjoyment of a cultural life of one's choice (Article 26). The arrests also violate Malawi's international human rights commitments, including the rights to privacy and non-discrimination that the International Covenant on Civil and Political Rights guarantees to all regardless of sexual orientation, as well as the rights to equality, dignity, security and life in the African Charter on Human and Peoples' Rights (Articles 3-6). The Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, a document signed by several respected African jurists, states that governments must "repeal criminal…provisions that prohibit…consensual sexual activity among people of the same sex" to ensure all people's rights to equality and non-discrimination (Principle 2). The lives of Steven Monjeza and Tionge Chimbalanga must be respected without discrimination, regardless of their sexual orientation or gender identity.
Reports indicate that the prosecution sought to further humiliate the two by subjecting them to internal medical examinations to confirm the sodomy charges without their consent. Such examinations cannot be allowed as they are in direct violation of Malawi's Constitution, including the right to dignity (Article 19), which states that no person shall be subject to degrading treatment or punishment, and the right to privacy (Article 21), which includes the right not to be subject to search of one's person.
These arrests create a climate of fear in Malawi and intimidate human rights advocates, negating the progress made in the National Aids Strategy to stem the spread of HIV and AIDS by targeting outreach efforts at men who have sex with men (MSM). This persecution stifles the voices of sexual minorities and makes it difficult or impossible to provide effective HIV/AIDS prevention, outreach, and treatment, setting a dangerous precedent for fundamental human rights and public health in Malawi.