And Exploring the Queer Controversies Among Forcibly Displaced People
By Nery Ronatay
“Even as ‘sexual orientation’ and ‘gender identity’ become at least partially incorporated in the global human rights framework, this does not signal the unqualified dissipation of inequalities in human rights relating to sexuality and gender.”
— Matthew Waites [i]
The unfinished un-love story of Tiwonge and Steven: nasty, brutish and short
Five years ago, I was recruited to be a Voluntary Services Overseas volunteer in Malawi to work in designing and advising HIV and AIDS programmes in remote communities of Chikwawa District, the border villages with Mozambique. The moment my Malawian programme manager admonished me that I was not allowed to acknowledge that I am gay where I would work , I was aghast, fully aware that I made it perfectly clear in the recruitment process that I am gay— so why would I be asked to pretend that I am straight? I was belligerently emphatic that nothing could force the me to get back in the closet, much so if it is HIV and AIDS work. I told my manager that the closet is dark, nasty, brutish and long— and I would not wish even my enemy to be there. The only way I could convey the gravity of my message was to ask him: what would you feel if I ask you to work for my organization and lie to everyone that you are black?
It took me a while to understand why I was being politely asked by my organization to be invisible and lie about my sexuality— in a country that criminalizes same-sex behaviour along with the 36 states in the world, a country that predominantly thinks that gay people only exist in the imperialistic Western construction, a country whose ‘analysis and solution’ to my gay ‘problem’ was that I may haven’t slept yet with the right woman and humored to find a beautiful Malawian girl to cure me. Two years after my first encounter, I would comprehend the magnitude of the anti-gay sentiment in the country when the news of two Malawian men getting engaged in December 2009, Steven Monjeza and Tiwonge Chimbalanga , disturbing the peace and denial that was simmering for a very long time. Two days after the engagement ceremony, Monjeza and Chimbalanga were arrested for gross indecency and charged with violating the state’s (colonial) anti-sodomy statute. Denied bail, Monjeza and Chimbalanga spent the next four months in jail while awaiting trial. [ii] After four months, they were sentenced to 14 years of hard labor. “I was beaten in prison. During the trial the security guards ill-treated me. I was verbally abused and suffered all sorts of inhumane treatments, I have scars from the beatings. Yet I felt good that I was able to do what I wanted to do,” Tiwonge would later report (Radio Netherlands Worldwide 2012).
Then something unprecedented happened in the country.
The international backlash on this decision would force United Kingdom, the country’s biggest donor to threaten to further withdraw its foreign aid, with 19 million BP already cut due to accusation of bad governance and corruption. President Barack Obama would condemn the decision and threaten to cut its 200 million USD aid to Malawi (The Guardian, 2010). In a country whose total income is 40% foreign aid, that would be a fiscal catastrophe. Ten days after the sentencing, UN Secretary General Ban Ki Moon would descend in Lilongwe to meet with Pres. Bingu Mutharika to discuss this backlash, the first time that a UN Secretary General would table the case of two convicted homosexual people in meeting with the head of a state. In a press briefing together with Ban Ki Moon, President Mutharika would pardon Tiwonge and Steven on humanitarian grounds but still predicating his pardon by saying that homosexuality is unnatural, emphasizing that “These boys committed a crime against our culture, against our religion, and against our laws… It’s unheard of in Malawi and it’s illegal.” [iii]
On what would become a milestone in the progress of sexual rights, Tiwonge and Steven’s case would be the first in modern history that the sexuality of two non-heterosexual people become a subject of international controversy: diplomatically, economically, politically and legally. What made this historic phenomenon possible? If Tiwonge and Steven got engaged say 10 years ago, I seriously doubt if it would get the same prominence as they received in 2010. Underneath this international backlash against the sentencing were thousands of voices of gay rights activists over the last fifty years or so, with the culmination of sexual rights becoming an important element in the existing international human rights laws.
In a surprising twist of events, the pardon of Tiwonge and Steven tore down the veil of invisibility for Malawian gay man, and reverberated in many African countries. It begged the question, is the rest of the world ready to level-up new debates on sexual rights? Have the sexual rights of gay people finally earned its place as the new normal in international human rights law? Is the use of economic reward the best way to advance SOGI rights?
Feminist legal scholars have long pioneered the “queering” of laws (Stychin 1997, Moran 1996, Morgan 2000, Waites 2007), and in particular, international laws (Otto 2007,Buss 2007, Gross 2007, Shalakany 2007). This queering is a path made possible by the feminist scholarship whose textual interrogation of important human rights instruments have pointed out the hetero-patriarchal nature of most human rights texts. Thus, queer theory, as an important post-modern feminist lens, embarked on questioning the norm-setting of international laws.
As we proceed in the article, we will revisit this queer lens and how it can deconstruct the normativities and abjections of international human rights law. It will also address the question about the danger of not queering human rights law, in particular, we will focus on forcibly displaced people as an important object international human rights laws. In essence, what I shall discuss is the backstory that makes the incarceration and pardoning of Tiwonge and Steven made possible in a country whose laws condemned them to 14 years of hard labor for loving each other.
The first step is looking how the feminism might have been responsible for saving Tiwonge and Steven 14 years of jail sentence.
Heteronormativity is the new patriarchy: queer conceptual inquiries of international human rights laws
The feminist curiosities’ unique role in legal discourse is its radical challenging of patriarchal structures found in socio-cultural and politico- legal systems that create and perpetuate tools of oppression and abjection from individual to global level; codified in a textual representation that binds all its subject which we comfortably call as laws. As the construction of masculine and feminine categories is linked to power relations arising from the practice of attaching meaning to gender identities,[iv] hence, feminists confront and defy gendered division of power, representations, identities and privileges that underpins the creation of laws.
Queer theory is feminisms’ youngest post-modern strain. While queer theory still share feminism’s goals of challenging gendered hierarchies particularly of patriarchy, queer theory pushes the envelope by challenging discursive gender itself, or how the heteronormative masculine-feminine binaries is itself a source of manipulative identity-sexuality politics. Queer theory is a set of ideas based around the idea that identities are not fixed and do not determine who we are… it proposes that we deliberately challenge all notions of fixed identity, in varied and non-predictable ways.[v] Buss (2007) argued that queer theory is not just theory about queers, but a way of analyzing how gender, sexuality and heterosexuality as the dominant principles how the world organize hierarchies of normal sexuality and intimacy which extend how men and women organize and regulate their lives through laws . It challenges rigid categories and definitions in order to create a space for marginalized voices, examines the inconsistencies and erasures that often characterize notions of sex, gender, sexuality, and sexual desire and finally explores categories that intersect with sexualized identities such as race, ethnicity, class, nationality, location, and age.[vi]
The origin of queer theory is rooted from the scrutiny of Michel Foucault of pre-modern to modern discourses on sexuality and identities that would later inspire scholars in the 1990’s like Judith Butler, Eve Konofsky Sedgwick, Michael Warner and Teresa de Lauretis to interrogate identities and structures built upon the narrative of earlier feminist assumptions of gender dichotomies and masculinity-femininity spectrum of disciplinary power dynamics that feeds patriarchy. It is interesting to note that queer theory originally came into being as a joke. Teresa de Lauretis coined the phrase “queer theory” to serve as the title of a conference that she held in February of 1990 at the University of California, Santa Cruz, where she is Professor of The History of Consciousness.[vii] Right after the idea was introduced, Halperin (2003) saw the rapid embrace of many scholars of a queer theory as set of specific doctrines, a singular, substantive perspective on the world, a particular theorization of human experience. From a simple ‘joke’ in the 1990, it jumped out of the sexuality-gender sphere and many scholars intimated its broader application in other field of social sciences that was already threaded on by feminism.
As an expansion of the feminist scholarship lens, postmodern feminism interrogates the assumptions of the previous models by challenging universality, objectivity and the Cartesian binaries of gender by arguing that subjectivity, locality, context and plurality of gender experiences are more important contingencies rather than the prescribed binarial male-female hierarchies and relationships— highlighting that class, race, ethnicity, geography and other identities are critical determinants in how gender is experienced, understood , expressed and eventually resisted and politicized. Queer theory belongs to this strain of feminism, emphasizing positionality within and outside man-woman continuum of identities. Broadly speaking, queer describes those gestures or analytical models which dramatize incoherencies in the allegedly stable relations between chromosomal sex, gender and sexual desire. Resisting that model of stability–which claims heterosexuality as its origin, when it is more properly its effect–queer focuses on mismatches between sex, gender and desire.[viii]
The broader application of queer lens to law and human rights is seen as a continuing and expanding evolution, and partly resistance, of the older feminist lenses. An important scholar that interfaced queer theory beyond the gender-sexual realm is Dianne Otto (2007) who analyzed application of queer theory to international law. Her analysis is important to this article because this is the same analytical base serving as launching pad by which queer theory can be applied to international human rights law. Otto argues that, just like feminists use gender, queer theorists can use sexuality as a primary category of analysis, critically by “taking a break” from “seeing normally”, meaning stepping outside the normal presumption of heterosexuality. Just as when feminists insisted that gender become a primary category, and new ways of seeing gender in problems that had previously looked un-gendered emerged, so too does a queer perspective make visible the [hetero]sexual ordering that is taken for granted as an underpinning of the normal system of international law. Through the queer lens, heterosexuality emerges as a basic model for all dominant systems of social relationships— it provides some of the building blocks for international law’s conception of “order”… heterosexuality not only shapes how we think of the “normal” interpersonal and familial relationships, but is also the presumed basis for all forms of “normal” community, including that encompassed by the “normal” nation-state, international law’s primary subject. [ix]
Is this [hetero]sexual ordering that Otto found in international law can also be seen in the organizations and structures that create and sustain human rights jurisprudence? Is this [hetero]sexual ordering remain invisible in the legal and human rights community because most of them are heterosexual people who do not see that the conflict are caused by values, identities, needs and goals of heterosexual people? Lawrence (2012) noted that LGBT issues (queer rights) have been invisible for many decades in the human rights discourse.
As a post-modern deconstruction tools, queer theory works on an assumption that all social organizations associated to and historical constructions such as justice, law and human rights are political projects of its time. Breaking down the layers of the parties, relationships, hierarchies and processes that created them will surface the gendered and sexual ordering of the law. As Moran (1996) pointed out in The Homoexual(ity) of Law “the importance of considering law… as not only a matter of rules but also a matter of representation.” The goal of queering laws is to challenge the politics of identity and sexuality that forms part of the canvass by which the entire legal text is written as a political project
The queer perspective also believe that the laws, including human rights laws, construct identities, and its effects either enables or disables, expresses or represses, and make visible and invisible certain sexual and gender identities, behaviours and thoughts along its line of norm-setting and abjection. Queer could similarly contribute to the conceptual inquiries in the field of special or particular jurisprudence. Here too it would expand the focus from an analysis of the meaning of certain concepts and the accuracy of their use in particular legal context to a study of the ways in which specific concepts are deployed by the law, and what are the effects of its deployment are in terms representations of non-normative sexualities, identity construction and enabling or disabling sexuality-focused political projects.[x]
In queer curiosity towards human rights law, some fundamental deconstructive questions are necessary to be asked (1) Who primarily created this human rights law: heterosexual or non-heterosexual people? (2) Who primarily benefits from this human rights law: heterosexual or non-heterosexual people? (3) Who primarily would like to maintain this human rights law as it is: heterosexual or non-heterosexual people?
The first question deals with structure and norm-setting of human rights law. International human rights laws and the United Nations Charter were created by the victors of World War 2. Not only they were white people, but most who sat and drafted them were men. It would take a forcible personality like Eleanor Roosevelt to challenge some of the gendered language used in the Universal Declaration of Human Rights. From Every man has the right to life, liberty and security of person to Everyone has the right to life, liberty and security of person.
The second and third questions deal with privileging-abjection and guardianship of privileges. In feminist scholarship, it has been thoroughly argued that the fundamental human rights jurisprudence, particularly the Universal Declaration of Human Rights and the first generation of human rights were of men’s rights. Because of women’s historical and ongoing subordination and lack of political and economic power, women’s particular needs and experiences were not taken into account in the establishment of the UN or the drafting of the international bill of human rights. The types of human rights violations that particularly affect women – including gender-based violence and economic and social marginalization – were either left out of the major international human rights covenants, or relegated to a secondary status as “special interests”. As a result, feminist scholars argued that the substance of and institutions created by international human rights institutions gave preference to male values and perspectives: human rights were men’s rights. [xi]
In the same mold, heterosexuality is prevailing sexual-norm at the period when United Nation and international bill of human rights was being drafted; heterosexuality being privileged as the normal. As Waites (2010) argued, in light of feminist and queer theory, it can be suggested that the Universal Declaration of Human Rights has been shaped by heterosexuality and ‘heteronormativity’, defined by queer theorists Lauren Berlant and Michael Warner as ‘the institutions, structures of understanding and practical orientations that make heterosexuality seem not only coherent – that is, organized as a sexuality – but also privileged.’ In fact, how on earth could non-heterosexual paradigm be included in the human rights law discourse when homosexuality or bisexuality were considered as mental disorders at that time UN and fundamental human rights laws were being crafted, and transgender identity as we know today doesn’t officially exist yet in the medical and legal lexicography.
International human rights laws, with the exception of CEDAW and Convention on the Rights of the Child, were primarily created by men, supported by men and to some degree, women. In the same breadth, international human rights laws were created and supported by people who identify and live like heterosexuals. As heterosexuality has the disciplinary power over other identities who do not conform with heteronormativity, it becomes the normative spirit of the law. The hierarchies and privileges created by heteronormative norms feed the climate that historically and continuously put LGBTI people vulnerable to human rights abuses. To ignore the abjection experienced by the LGBTI community under the auspice of human rights laws is to run the risk of the human rights law being used to strip marginalized people of dignity and liberty rather than protecting it. Heteronormativity distributes power and centralizes them on people who are heterosexual. If two people approach the human rights law from highly unequal positions, then ignoring these differences will likely cause in the oppression of the other.
Thus for queer theorists, heteronormativity is the new patriarchy.
Gay rights are human rights: historical notes on queer normative inquiry on the international human rights laws
Despite the sophistication and massive fiscal and political infrastructures created to implement human rights laws since World War II, non-heterosexual people remains in the margin. Worldwide, people are subject to persistent human rights violations because of their actual or perceived sexual orientation and gender identity.[xii] Six countries impose death penalty for homosexual behaviours. Around 80 countries have punitive laws related to homosexual behaviours. Thirty seven countries including Malawi have severe punishments for same-sex behaviours. The Report of the United Nations High Commissioner for Human Rights noted that since 1999, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions has regularly referred to persons being subjected to death threats or killed because of sexual orientation and gender identity. The current mandate holder recently highlighted the murders of at least 31 LGBT persons in Honduras during an 18-month period, including a transgender person found dead in a ditch, her body beaten and burned, showing evidence of rape and blows to her face from stoning so severe as to render the remains virtually unrecognizable. In Jamaica, a man was allegedly stabbed and stoned to death after police, who reportedly participated in the attack, urged others to beat him because he was homosexual. The Special Rapporteur on violence against women has highlighted the targeted murder of lesbians in South Africa, including a case in which two lesbians were beaten, stoned and one stabbed to death.[xiii]
The issue is the problematization of gender identity and sexual orientation as an identity in the international human rights laws itself, where many countries refuse to accept such identities. Opponents of LGBT rights have argued that the lack of explicit protection in international human rights treaties coupled with the right of each sovereign state to make its own laws regarding these issues mean that international law does not, and was never meant to, include protections for persons on the basis of their sexual orientation or gender identity. [xiv] Even as ‘sexual orientation’ and ‘gender identity’ become at least partially incorporated in the global human rights framework, this does not signal the unqualified dissipation of inequalities in human rights relating to sexuality and gender.[xv]
Milestones in sexual rights for LGBTI people. As Petchesky (2000) pointed out, sexual right is the new kid on the block in the human rights law discourse. The sexual right movement for LGBTI people rode in the waves of feminist movement but it eventually culminated in three most important international documents on sexual rights: (1) Declaration of Montreal (2) Yogyakarta Principle and (3) UN Statement on Gender Identity and Sexual Orientation.
The journey is not easy. Saiz (2004) pointed out that sexuality is contested issue within the UN human rights system. Quoting Girard (2007), Buss and Herman (2003), Rothschild (2005) and Correa et al. (2008)— Waites (2009) added that human rights relating to sexual orientation continue to be opposed with reference to heteronormative understandings of cultural tradition, national identity and religious belief. A resolution in the former UN Commission on Human Rights on extrajudicial, summary or arbitrary executions in 2000 first mentioned ‘sexual orientation’, but UN world conferences, including that in Beijing, have refused to address the issue. Criticisms on sexual orientation all point out to it being an unchartered term and will open floodgates to normalization and legitimizing of other deviant behavior such as pedophilia, adultery and other ‘social perversion— a statement that would be echoed by the member of the Organization of Islamic States. The glaring truth is the fact that the specific grounds of discrimination referred to in the International Covenant on Civil and Political Rights and other human rights treaties are not exhaustive. The drafters intentionally left the grounds of discrimination open by using the phrase “other status”. Sexual orientation and gender identity, like disability, age and health status, are not explicitly mentioned among the grounds listed in the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.[xvi]
The earlier successes of incorporating sexual rights in state laws was pioneered in Canada. Quebec is the first country in the world to include sexual orientation as part of its anti-discrimination legislation in 1977. Canada as a country decided that discrimination based on sexual orientation is prohibited in the 1990’s. The first country to include a constitutional prohibition on discrimination based on sexual orientation is South Africa in 1993.The European Court of Human Rights would declare that all discrimination based on sexual orientation is unacceptable, a take off from EU’s 1997 Treaty of Amsterdam that includes anti-discrimination clause that extends to sexual orientation.
2006 was the year when important steps in codification of pertinent rights related to gender identity and sexual orientation were developed. Declaration of Montreal was organized by the International Conference on LGBT Human Rights in parallel with the 1st World Outgames in Montreal Canada in July 2006. At that time, it was the biggest gathering of LGBTI activists at the global level. The Declaration of Montreal attempts – perhaps for the first time ever – to provide a brief sketch of the demands of the international gay movement, it covers essential rights, as a main theme, three issues: a) protection against violence, from state officials or third parties (from the death penalty to hate crimes and forced marriages); b) freedom of expression, association and assembly; and c) freedom of (consensual) same-sex (adult) sexual activities, which are still prohibited in dozens of countries. [xvii]
The more important piece of international document on sexual rights for LGBTI people that came out of 2006 was the Yogyakarta Principles, developed by a consortium of human rights, LGBTI activists and legal experts. Swiebel (2007) noted that to some degree, the Declaration of Montreal can also be viewed as the predecessor to the Yogyakarta Principles, formulated in November 2006. The Yogyakarta closely follows the provisions of international human rights treaties and applies them to sexual orientation and gender identity. These Yogyakarta Principles are clearly recorded by international human rights specialists, while the Declaration of Montreal is rather a political document that chooses a policy approach. Yogyakarta Principles, although non-binding, would become the centerpiece for discussion on sexual orientation and gender identity of LGBTI people and it would be referenced in the discussion of Human Rights Council of the United Nations. The 26 provisions of Yogyakarta principle is in fact an exercise of reimagining and reinterpreting the provisions of international human rights laws to be more inclusive of the non-heterosexual identities, which is essentially “queering” of human rights law. Summarily, the development of this sexual orientation and gender identity-related human rights legal doctrine can be categorized as follows: (a) non-discrimination, (b) protection of privacy rights and, (c) the ensuring of other general human rights protection to all, regardless of sexual orientation of gender identity. [xviii]
Swiebel (2007) wrote that in 2006, Norway intervened in behalf of 54 countries at the Human Rights Council to express its negative position against human rights violations based on sexual orientation and gender identity. This Momentum continued to build and in March 2008 the number of countries backing another statement in favour of LGBT human rights at the Human Rights Council rose to sixty.
In a momentous day on 18 December 2008, some 66 UN member states from all parts of the world supported a joint statement on Human Rights, Sexual Orientation and Gender Identity, that was – for the first time ever – delivered at the UN General Assembly.[xix]
So what if we don’t “queer” human rights law? The case of forcibly displaced LGBTI people
All people who are forcibly displaced face challenges. However, LGBTI refugees are at particular risk because they often face targeted discrimination and violence in countries of asylum. Many avoid seeking protection out of fear of further harm. Their protection needs often go unmet, and they are unable to participate in activities or access support that could benefit them (UNHCR 2010).[xx] In a 2012 report, Organization for Refuge, Asylum and Migration, estimates that 175,000 LGBTI persons are in peril in their home countries worldwide only 7,500 manage to escape. Of these, only 750 are able to access the refugee protection system. And of those, only 350 are officially recognized as refugees and only 200 are resettled (ORAM, 2012).[xxi]
UNHCR estimated that at the end of 2008 there were approximately 42 million people worldwide who had been displaced by armed conflict, an additional 25 million who had been displaced by natural disasters, and countless others who left their homes due to hardships of other kinds.
Under the 1951 Refugee Convention and its 1967 Protocol, a refugee is someone who: (1) has a well-founded fear of persecution because of his or her: race, religion, nationality, membership in a particular social group, or political opinion; (2) is outside his or her country of origin or habitual residence; and (3) because of fear of persecution, is unable or unwilling to seek the protection of that country or to return there. This stringent definition would prove to be problematic for millions of LGBTI people. For over 50 years of the International Convention on Refugee, LGBTI people are never counted in camps and UNHCR report have no data on homosexuality or other gender identities. This non-reporting of LGBTI people in camps is rooted in narrow definition of who is a refugee. Only in recent years that sexual orientation and gender identity has been identified as ground for seeking asylumship.
In forced displacement, a period where political and social institutions are unstable or non-existent, LGBTI people are confronted with multiple layers of discrimination because the prejudice in pre-displacement time are normally magnified and multiplied during forced displacement, a period which could run for an average 17 years (UNFPA, 2006).
The UNHCR discussion paper Protection of LGBTI Asylum-Seekers and Refugees (2010) discussed the unique difficulties and faced by LGBTI as forcibly displaced people, asylum seekers and refugees, large part of which brought about by decades by non-recognition of LGBTI in many human rights laws. The following outlines the difficulties faced by each identity among LGBTI community as displaced people (UNHCR , 2010):
- Among lesbians, their generally inferior economic and social status of makes it harder for them to flee persecution in their country of origin, to access asylum processes, and protect and support themselves in a new country. Lesbians have also been unable to access state protection as harm against lesbians is often at the hand of private actors classifying it to be considered a personal problem or, at best, a common crime, that is not related to a Refugee Convention ground.
- Gay men have difficulty disclosing incidents of sexual violence experienced in their home countries, which inhibits their ability to make a viable claim for asylum. They may be disbelieved by adjudicators if they do not fit the stereotype of what a gay man should look like, or if they were previously married.
- Bisexuals face extremely low asylum claim recognition rates and are largely invisible in jurisprudence, made worse as adjudicators tend to analyse these claims within a hetero- or homosexual context. They face major credibility issues in asylum procedures if they have had heterosexual partners.
- Transgender asylum-seekers and refugees suffer multiple discrimination based on their gender identity or gender expression, reports indicating they are subject to sexual abuse and violence where many end up as sex workers. Transgender persons experience difficulties in transit when their legal documents do not match their identities. Transgender persons who are involved in medical treatments related to transition suffer from a lack of access to such treatments in transit countries and upon resettlement.
- Intersex people can be subject to persecution for failing to conform to gender norms. In some countries, intersex persons are considered evil and have been subjected to ritual ceremonies. Their families can be persecuted for having an intersex child. They may be forced to endure unwanted surgeries.
The limiting definition of a refugee under the Refugee Convention ignores people persecuted based on their gender and sexuality. Lawrence (2000) pointed out that the omission of “persecution based on gender” excused persecution target women who transgress social and gender norms. In recent years, however, there has been growing movement to recognize persecution based on gender under the rubric of “membership of a particular social group,” although the situation of those persecuted on the basis of gender remains insecure. The existing international guidelines that are available today that handle forcibly displaced people– primarily the SPHERE Standards, IASC Gender Handbook in Humanitarian Action and UN Guiding Principle in Internal Displacement — are silent on sexual orientation and gender identity. In these international standards, gender is generally understood and treated as an issue about women.
Afterthoughts: Tiwonge and Steven
Let me end this piece by narrating the final piece of the story of Tiwonge and Steven, whose case is seen as both the triumph and frustration of queering international human rights law as discussed above.
Immediately after their release, Tiwonge and Steven went into hiding fearing for their lives. An organization called Center for Development of People (CEDEP), an underground human rights organization helping LGBTI Malawians coordinated support for Tiwonge to seek asylum in Canada based on the new 2010 UNHCR guidance with a broader definition that gender identity and sexual orientation as a ground for asylum bid. At the heat of the controversy, CEDEP was targeted by the police by detaining the staffs and volunteers, ransacking its office by virtue of the same crime that prosecuted Tiwonge and Steven. It was the same period that my organizations have asked me and other gay volunteers to keep a low profile and resulted with one of my gay British colleague forcibly repatriated since police were observed snooping on his house.
As the threat for the Tiwonge and Steven worsened and the bid for asylum procedurally dragging, Steven surfaced on the media denouncing the engagement ceremony. He would claim over interviews that international NGOs forced him to go into engagement and that he regretted his decision to be engaged with Tiwonge. He intimated it was all a conspiracy of western NGOs that forced him to do so. As a sign of his contrition, he married a woman and brandished their romantic pictures on national news with the hope of people leaving his life in peace.
Things would turn out different with Tiwonge. Defiant and frustrated at the procedural difficulties of him getting asylum in Canada despite his high-profile and highly publicized threats, he escaped to South Africa which eventually granted him asylum where he was supported by Amnesty International and NGO Gender Dynamix. The last news about him was he was found by an angry group of Malawian nationals in Johannesburg where was brutally attacked. He ended up in a hospital with broken bones and stitches.
The death of Malawi’s Pres. Bingu Mutharika saw the rise of Africa’s second female head of state, Pres. Joyce Banda. Upon assuming office, one her first pronouncements is the review and eventual abolition of the country’s colonial sodomy laws. In 2012, she issued a moratorium on the ban of same-sex marriage in Malawi.
“The thing that I wish for in Malawi is that all gays, lesbians and transgenders must come out and have their rights like everybody else,” Tiwonge said.
ENDNOTES
[i] Waites, M. (2009) Critique of sexual orientation and gender idenitity in human rights discourse: global queer politics beyond the Yogyakarta Principles. Contemporary Politics. Vol 15, No 1.
[ii] McKay, T. (2011) Money, Morals, and Modernity: Making Sense of Same-Sex Sexualities in Malawi. Thinking Gender Papers, UCLA Center for the Study of Women, UC Los Angeles. Retrieved on November 2, 2012 from http://escholarship.org/uc/item/8st7222g.
[iii] Tenthani, R. (2010). Malawi Gay Couple Pardoned, Released From Jail. The Hufftington Post. Retrieved on November 5, 2012 at http://www.huffingtonpost.com/2010/05/29/malawi-gay-couple-pardone_n_594451.html.
[iv] Jeong, H.W. (2000) Peace and Conflict Studies. Hants. Ashgate Publishing Company, p 77
[v] Gauntlett, D. Retrieved from http://www.theory.org.uk/ctr-que1.htm.
[vi] Buss, D. (2007). Queering International Legal Authority. A paper presented on QUEERING INTERNATIONAL LAW, University College London.
[vii] Halperin, D. (2003). Normalization of Queer Theory. Journal of Homosexuality. Vol. 45, No. 2/3/4, 2003, pp. 339-343
[viii] Jaggose, A. Queer Theory. Australian Humanities Review. Retrieved from http://www.australianhumanitiesreview.org/archive/Issue-Dec-1996/jagose.html
[ix] Otto, D. (2007). “TAKING A BREAK” FROM THE “NORMAL”: THINKING QUEER IN THE CONTEXT INTERNATIONAL LAW. A paper presented on QUEERING INTERNATIONAL LAW, University College London.
[x] Zanghellini, A. (2009). Quuer, Antinormaitivity, Counter-Normatovity and Abjection. Griffith Law Review. Vol 18, No 1
[xi] Lawrence, J. (2012) Human Rights. Peace Operations Training Institute. Williamsburg, VA.
[xii] O’ Flaherty, M. & Fisher, J. (2008) Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising theYogyakarta Principles Human Rights Law Review Vol 8, No. 2
[xiii] United Nations General Assembly (2011). Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General. UN Human Rights Council, 19th Session
[xiv] Lawrence, p 329
[xv] Waites, M. (2009) Critique of sexual orientation and gender idenitity in human rights discourse: global queer politics beyond the Yogyakarta Principles. Contemporary Politics. Vol 15, No 1.
[xvi] United Nations General Assembly (2011). Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General. UN Human Rights Council, 19th Session
[xvii] Swiebel, J. (2007) The Montreal Declaration of Human LGBT Rights. http://www.hivos.nl/eng/Hivos-Knowledge-Programme/Themes/Urgency-Required/Articles/The-Montreal-Declaration-of-Human-LGBT-Rights-Joke-Swiebel
[xviii] O’Flaherty, et al.,
[xix] Swiebel, op cit
[xx] Op cit.
[xxi] ORAM. (2012) Rainbow Bridges: A community guide to rebuilding the lives of LGBTI refugees and asylees. http://www.oraminternational.org/images/stories/PDFs/oram-rainbow-bridges-2012-web.pdf. Accessed on November 2, 2012.
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