Tiwonge Chimbalanga and Steven Monjeza are two Malawians who happen to be gay. The Malawian criminal code, like those in most former British colonies, does not criminalise being gay as such.

But it does contain provisions criminalising sexual behaviour assumed to be uniquely engaged in by gay men — that is, sodomy.

It also contains other more vague provisions as well, such as those relating to indecency. On those two counts — sodomy and indecency — Chimbalanga and Monjeza were last week sentenced by a magistrate’s court to 14 years’ imprisonment with hard labour.

It is a sad irony that criminal code provisions originating from the UK — which has since deleted them — were used to so severely punish people whose sexual orientation is wrongly perceived of as being “a Western perversion.” But there are other problems.

First, the law itself. The law as it stands may criminalise sodomy and whatever the powers that be determine to be indecent. But it is not the business of any state to determine how consenting adults derive sexual pleasure.

The state can only intervene when there is no consent — for example, when those involved are legal minors or when coercion, force or violence is involved.

In such instances, everybody’s right to privacy is obviously superseded by everybody’s right to safety and security of the person. The struggle to decriminalise, for example, sodomy is thus, at base, a larger battle about the limits of the state in regards to the individual.

The state cannot tell any of us what we can or cannot do in our own bedrooms — as long as we are doing it as fully consenting adults.

Second, the law’s execution. The assumption is that sodomy is a sexual practice unique to gay men. This assumption is obviously untrue — if we are honest.

Imagine if the state started forcibly anally examining married women, to determine if they and their husbands had engaged in sodomy — whether experimentally or because they had mutually determined they liked doing so as a matter of practice.

Or imagine if, as happened in this particular case, the state lined up a bunch of “witnesses” to testify to their belief that that married couple had, in fact, engaged in sodomy — as though they were actually present when the said sodomy occurred.

I do not write to be crude or titillating. I write to make a point. That, however conservative we are as a society and however uncomfortable we are talking explicitly about what we actually do in our bedrooms, we would have a problem with both possibilities — being forcibly examined as to what we do and having people who have nothing to do with what we do commenting on it.

And if we would have a problem with those possibilities, we should have a problem with the fact that they are routine realities for Africans who are gay men — leading in this case to a conviction of 14 years with hard labour.
Which raises yet another right that is violated in the law’s execution — the right to equality, which implies the right to equal treatment by the law.

So, it is obvious that when we speak of the need to respect the human rights of Africans who are gay, we are not speaking of creating new rights — we are speaking about the fact that all existing rights apply to all Africans, including the right to privacy and the right to equality.

In this sense, the judgment of the Malawian magistrate’s court is an absolute outrage. I trust the couple will appeal on constitutional and rights grounds. And I hope even more that the Malawian state will step in even before the appeal.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission