Under Section 156 therefore, the State must establish where mere indecency ends and where gross indecency begins as mere indecency is no offence under Section 156. That is the observation of the Defence. (Criminal Case Number 259 of 2009)
The two accused persons stand charged with three counts. The first count relates to the first accused person Steven Monjeka Soko. He is charged with buggery or having carnal knowledge of the second accused person Tiwonge Chimbalanga Kachepa against the order of nature. This is contrary to Section 153(a) of the Penal Code. Under the second count Tiwonge Chimbalanga Kachepa is also charged with buggery or a charge of permitting the first accused person to have carnal knowledge of him against the order of nature. This is contrary to Section 153(c) of the Penal Code. In the alternative, both accused persons are charged with the offence of indecent practices between males contrary to Section 156 of the Penal Code.
The law has a pornographic imagination, coded with words like “buggery” and “indecent,” justified by codes in books that provide intelligibility. Disgust coded into legislation. Indecent. As children, we termed everything that made us uncomfortable “bad manners.” A colonial inheritance, I used to think. But no. A hybrid, hydra-headed creature, invented to manage the ruptures and hybridities of colonial modernity. Bad Manners. Caught between then and now, who we were and who we wanted to be. The Malawi case is about Bad Manners. Legislation against nettle-stung nerves.
The simple facts of this case that are not in dispute are that both Tiwonge, also known as Aunt Tiwo, and Steven are men. They are of sound mind. At one point they associated themselves with a certain Christian Church called Abraham Church where Tionge performed womanly chores. Finally on 26th December 2009 they were successful to conduct an engagement ceremony or Chinkhoswe at Mankhoma Lodge in Blantyre. This is a place where Tiwonge was staying and working.[the court document shifts between Tiwonge and Tionge, as though unclear of its object, unsure of its subject, scared to be precise. Such “slips” are telling, psychoanalysis tells us]
Lineaments begin to emerge. The two are men. Gender identity is fixed. This case is about gender transgression. The transgression of a man who “feigns” womanhood, who performs “womanly chores.” What happens when men perform “womanly chores”? Something is threatened, something that must be preserved, something that, perhaps, is not clear is threatened. Gender Trouble. The facticity of manhood is at stake. The making of womanly work, work that women do, work that produces women, is also at stake. This is a transgression against labor. Against work. We cannot lose sight of this. Their offence is to invade the gendered space of work, the work that women do. Tiwonge works “under false pretenses,” and this work sustains intimacies. Intimacies that gendered work, work understood as gendering, should not sustain. Let us not forget this.
Chinkhoswe. A foreign word. A word that is a metonym for culture, for authenticity, for purity. No matter its actual meaning. It cannot simply be “an engagement” No. It needs this modifier. We need to reminded that the law might have a colonial origin—indecency, buggery, such colonial terms—but it operates in an African setting. The offence is against Chinkhoswe.
Chinkhoswe, I dip into scholarship. A glossary offers “marriage surety or guardian of a partner to a marriage.” Cryptic. I feel lost. Cultures are not words with foreign OEDs. I persist.
By chance: Malawi Law Journal.
Section 22 (5) of the 1994 Malawi Constitution “provides for the recognition of marriage by custom. . . . [M]arriages contracted according to customary laws are valid. Thus, persons who are party to such marriages are entitled to all rights applicable to married persons.” (Mwambene 2007).
Persons. Such an odd, gender-neutral term. Does the Constitution use the term persons? Or is this Mwambene’s phrasing? Much is at stake in this, too much.
Mwambene argues that “the right to culture enjoys the same status as all other rights in the Malawian Bill of Rights.” The right to culture. Culture must be defended.
And marriage must be defended. This gets difficult as, Mwambene notes, “There is no comprehensive law in Malawi that deals with rights pertaining to marriage. Separate systems of laws apply to different forms of marriage” (2007). In the absence of comprehensive laws, marriage must be managed, gendered in particular ways. But I get ahead of my reading.
A footnote: “In Malawi, there are two customary marriage systems. These are the patrilineal and matrilineal systems. Patrilineal systems are defined by lobola while matrilineal systems are characterised by chinkhoswe” (2007). Lobola is defined. Chinkhoswe is not, not yet anyway.
Some clarity emerges. So much hinges on this one word, Chinkhoswe:
Notes from a 1979 court case, as cited by Mwambene, elsewhere:
We know that marriage is a social agreement between two persons, but in order that such marriage may acquire legal recognition under traditional customary law, the agreement must be sanctioned by the establishment of chinkhoswe. And as it has been said in a number of cases, this court does not recognise any union or cohabitation as constituting a valid marriage in the absence of chinkhoswe. (2005)
A handy footnote:
Chinkhoswe: the ceremony whereby the two marriage guardians (from the man’s and woman’s sides respectively) formally meet and exchange their consent to the marriage in question. (Mwambene 2005)
A partial understanding, but one that is necessary. I try to resist here the sense of gay outrage, buttressed by human rights claims, which is inattentive to local meanings, to local situations, local specificities, and so can be ignored.
Intervention cannot be a loud shouting in a foreign language. I try, here, to cobble a guidebook, to understand what is at stake, even as I prepare my whisper.
Chinkhoswe is at stake here: a matrilineal practice of certifying marriages that the law must recognize. Chinkhoswe validates marriage. This is huge. Huge. It pits customary practices against legal judgments.
The accused have staged a revolution within their own cultural norms. I cannot process this yet.
Chinkhoswe is a productive process. It produces and sustains matrilineality. It produces and sustains in-law relations. It produces and sustains generational authority—marriages must be certified by one’s relatives. It produces and sustains the terms of kinship. And it produces and sustains gender. All of this is at risk in this revolution.
And so the court’s question: how to prove “buggery” and “indecent acts.”
The accused remain silent for the duration of the trial—this, too, needs parsing.
A doctor testifies that he does not know how to examine for evidence of “buggery” and is not aware of any doctor in Malawi who does. Perhaps he needs to watch episodes of Law and Order. This strange statement, so strange, as though sex does not leave its mark. A reluctance to know how to read the marks that sex leaves. There is much to be said here about the labor of knowledge. Knowing can be taint. To know is, somehow, to be complicit. What is at stake? What does the doctor risk in daring to know?
Of the nine witnesses, including the male doctor, four are women. Three testify that they ask or compel Tiwonge to undress. They include his boss and a “friend” who lent garments for the chikhoswe. Duress is a problem in this case. And the testimony does not help.
Listen, for instance.
Flony Frank, a friend of Tiwonge’s, reads a newspaper that claims Tiwonge is a male.
She was annoyed. She together with a Mrs. Piringu went to Tionge’s house to hear the truth from the horse’s mouth. . . . She stated that Tionge then voluntarily took off her clothes and everyone there present including this witness saw that Tionge had the private parts of a male. [Flony Frank] then told the court that she discovered that the second accused person has male genitals though they did no look normal to her. She said Mrs. Piringu undressed herself to lead by example. During cross-examination, [Flony Frank] said that she with the other women made Tionge to undress.
The anger is familiar, the gender policing even more so. Of course the genitals will “no look normal.” How can they? Tiwonge/Tionge is being written on and written over, named and re-named, re-narrated. Tiwonge/Tionge’s histories are being re-though, made to line up with gender norms, to stay within the lines. Although this wavering name, this Tiwonge/Tionge/Tiwo resists such mappings.
(I am not sure that terming them “a gay couple” captures the richness of their sense of gendered configurations, and we lose the sense of how gender might be at stake, how femininity as well as masculinity might be threatened by their lives, their gendered practices, their re-writing of tradition.)
As much as I can, I want to be clear about my thinking here: this case is as much about legislating gender as it is about protecting tradition and punishing sodomy. Recent legislative histories in Malawi’s history that affect women are a key subtext, important in ways I cannot map here, at least not yet.
The evidence is, the judge admits, circumstantial. The two lived together and had a chinkhoswe ceremony. Under questioning, whether or not it was under duress, they confessed to having intercourse, anal intercourse. All of this is said by witnesses. The two remain silent. It is not clear what truth is or can be in this case.
Based on the circumstantial evidence, the two are condemned for gross indecency.
Steps to this judgment:
It was observed by Lord Woolf CJ. R v Smethurst (2002) Cr. App. R. 50 at p. 58 that the society is the ultimate guardian of decency.”
Therefore, the State argues, an engagement in a Malawian setting takes place between a man and a woman. Similarly only a man and a woman can live together as husband and wife.
The two accused person both being male were living as a husband and wife, says the state, and later they went further to have an engagement ceremony and this is conduct which is totally against the accepted moral standards.
The engagement and the living together as husband and wife of the two accused persons, who are both males, transgresses the Malawian recognized standards of propriety since it does not recognize the living of a man with another as husband and wife and two men having an engagement ceremony with each other. Both these acts were acts of gross indecency.
Indecency is defined by the Oxford Advanced Learners Dictionary (1989 4th Ed) as being indecent or doing indecent behavior and ‘indecent’ is defined as something offending against accepted standards of morality. [do dictionary definitions hold so much power in a law court? Especially Advanced Learners?]
Gross indecency: gender transgression, marriage transgression. Notice the absence of sex.
In his summation, the judge notes duress might have been present, wibbly wobbly, as he goes:
Confessions cannot be inadmissible at a mere suggestion that it was obtained by force. It must be proved that force was in fact used. Or the court must make a finding that force was in fact used. In fact even if force is used that fact goes to the weight to be attached to the evidence.
We can read the judge’s desire here.
[T]he Prosecution’s proof beyond reasonable doubt of a man who behaves like a woman and likes to be treated as such; the wearing of female clothes by one; the engagement or purported engagement of the two (to the extent of hiring a photographer); the soundness of their mind [as established by a psychiatrist]; their both being male; and the lie which Tionge had been telling people that he was a woman; all these leave us with one rational conclusion or inference leading to only the guilt of Steven having anal carnal knowledge of Tionge and Tionge permitting it by the anus c/s 153(a) and (c) respectively and thereby convict both of them of the offence of buggery. Otherwise the law would fail to protect the community.
[A]ll the offences carry with them a sense of shock against the morals of a Malawian society.
[T]he convicts have not shown any remorse. They actually seem proud of what they did. . . . Further the court is called upon to consider “the scar the case will leave on our morality.”
Interesting metaphor. Cases scar morality. Morality is a thin skin.
And the judge, to justify the sentence, invokes a case of terrorism, of hijacking, where the convicted demanded $5 million dollars or they would “blow up the aircraft.” This comparison is apt, as the judge’s sentiments prove.
I cannot imagine more aggravated sodomy [where Malawian morality is the victim] than where the perpetrators go on to seek heroism [a jab at the international recognition of the case, and where the local wants to assert its authority over the global] without any remorse in public and think of corrupting the mind of a whole nation with a chinkhoswe ceremony. For that [for violating and re-writing chinkhoswe?], I shall pass a scaring sentence [commit gender and sexual terrorism] so that “the public must also be protected from others who may be tempted to emulate their [horrendous] example.”
Society must be protected: Society must be scared: Another African Story
I have tried to construct, here, a basis from which to think about the homo-scandal of Malawi. It is a rickety structure, marked by my illiteracy in legal discourse, my lack of more knowledge about Malawi, my sense that activism must be grounded, and my utter and complete rage about this case.
Right now, there is a lot of stuff making the internet and mailbox rounds, petitions and so on, and I do support this work. At the same time, I am hoping that our responses will be attuned to what is at stake, that we will understand what this chinkhoswe ceremony threatened, and that we will take our lead from activists in Malawi.
To understand the scandal of this particular chinkhoswe as simply “another gay marriage” is actually a profound misreading, a truncated and partial one. And we need to read the court documents and Malawi legal documents and historical and anthropological documents if our engagements with this case aim to engage with Malawi, not simply read it as a case of African homophobia.
I realize there might be some confusion about what exactly Don’t Ask, Don’t Tell (DADT) is. So I’m going to provide some basic facts about DADT and then I’m going to post the U. S. Army Homosexual Conduct Policy (HCP) so that everyone here can read it for themselves and know that they understand it.
DADT is formally entitled: Don’t Ask, Don’t Tell, Don’t Harass. HCP draws its authority from Title 10 United States Code (USC) 654, Department of Defense (DOD) Policy, and Army Regulation (AR) 600-20.
Every soldier is familiarized with HCP upon initial entry into the Army. While no soldier is supposed to be asked about their sexual orientation, they are required to initial a document that states they are aware of HCP and that they can be discharged for violating it. I’ll try to find that document later and then update this post.
The U. S. Army Homosexual Conduct Policy:
U. S. Army
Homosexual Conduct Policy
Don’t Ask, Don’t Tell,
U. S. Army
Homosexual Conduct Policy
Implements 10 U.S. Code § 654
Implements DoD Policy
AR 600-20, chapter 4-19
Army policy is a balance between the legal prohibition of homosexual conduct and the privacy rights of soldiers
What does the Law Say?
“The presence in the Armed Forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”
10 U.S.C. § 654
The Law and Army Policy in Everyday Language
Don’t Ask, Don’t Tell
Homosexual Conduct is:
Admission of homosexuality
Committing a homosexual act
Marrying or attempting to marry a person of same sex
Train the Force
What Does ‘Don’t Ask” Mean?
Applicants for enlistment will not be asked nor required to reveal their sexual orientation.
Applicants for enlistment will not be asked if they have engaged in homosexual conduct.
While on active duty, soldiers will not be asked about their sexual orientation or conduct unless there is credible information of homosexual conduct.
What Does “Don’t Tell” Mean?
“Don’t Tell” is the opposite side of the coin from “Don’t Ask.”
Soldiers should not disclose or discuss their sexual orientation or conduct.
If a soldier admits to being homosexual, the commander will begin the process to determine if credible information exists which would warrant separation.
What is Credible Information?
A statement by a reliable person that a soldier has:
engaged or solicited to engage in a homosexual act
heard the soldier state that he or she was homosexual
heard the soldier state that he she had married or attempted to marry a member of the same sex.
A statement by a reliable person that they had observed a soldier admitting to or engaging in homosexual conduct.
What Is Not Credible Information?
Rumors that a soldier is homosexual
Others opinions that a soldier is homosexual
Going to a homosexual bar, reading homosexual publications, associating with known homosexuals or marching in homosexual rights rallies in civilian clothes
Reports of being harassed shall not by itself constitute credible information justifying the initiation of an investigation.
What are Grounds for Investigation?
Credible information must exist.
A commander must have a reasonable belief that a soldier has:
Engaged or solicited to engage in a homosexual act
Stated that he or she is a homosexual or otherwise indicated a propensity to engage in homosexual conduct
Married or attempted to marry a person of the same sex
The initiation of any substantial investigation into whether an admission of homosexuality was made for the purpose of seeking separation from the Army and/or determining whether recoupment of financial benefits is warranted must be approved at the Army Secretariat level.
Definition of substantial investigation: An investigation that extends beyond questioning the member, individuals suggested by the member for interview and the member’s immediate chain of command.
DoD Directed Policy Changes
Installation Judge Advocates will consult senior legal officers at a higher HQ prior to the initiation of an investigation.
Initiation of substantial investigations into admission of homosexuality for the purpose of separation will be made at the secretarial level.
The IG will inspect homosexual conduct policy training.
Zero Tolerance for Harassment
Definition: Derogatory, persistent, threatening or annoying behavior directed toward an individual or group.
Possible types of harassment
Verbal (on or off duty)
Jody calls regarding homosexuals
Derogatory language or references about homosexuals
Graffiti in latrines, bulletin boards, etc.
Anonymous threats; telephonic, electronic, etc.
What Can a Soldier Do If Threatened, Harassed or Accused of Being Homosexual?
Report harassment at once to the commander
Commanders will take appropriate action to protect the safety of soldiers who report threats or harassment.
Who Can a Soldier Talk with Confidentially?
Legal Assistance Attorney
The challenge to all soldiers is to comply with the law that prohibits homosexual conduct while at the same time respecting the privacy and dignity of every soldier.
“Hey, are you busy ? Is there anyone around in your apartment ?” My father must have been able to tell that I had him on speaker phone.
“Nope, it’s just me,” I replied.
“Okay, can I ask you a question?”
I wasn’t sure what he was going to ask about. Probably something about school or maybe my plans for the summer. My father was always, always worried about the future. Or maybe it was about the trip we were going on that weekend to visit my grandparents in New England. I was bringing along a friend this time, and my grandparents were pretty deep in their religious faith. Maybe he didn’t want my friend to hear. Did he have some news?
“Okay…Are you gay?” It was the last question I had expected to hear from his mouth.
“Am I what?” I asked, startled by the question that came with out any forewarning. Maybe I misheard?
“Are you gay?” he repeated.
“NO I’M NOT GAY!” I shouted quickly into the phone, surprised by not only his questions but how defensive I got. “What the-?”
Immediately, my mind raced back to all the lesbian-ish things I had done in my life. I remembered the time my dad found a picture of me pretending to kiss a girl in high school and how disturbed he was (Those kissy pictures were cool back then). I thought back to the times when I had really kissed girls. But was I “gay” in actuality? No! I wasn’t gay. But now my dad apparently believed so.
“Now, hold on, hold on!” he said, interrupting what would have unintentionally been a string of cuss words that I learned to use so elegantly in college. “I was just wondering!”
Wondering? Had I really given off that gay vibe?
“Well, where in the world did you get that from?”
“A friend of mine apparently saw on one of your social websites, Twitter or Facebook, that you were in a relationship with a girl. Are you?” he asked again. I felt a sigh a relief. My best friend and I had put that silly status up months before as a joke. I tried to explain this to my father.
“Noooo, Dad! That was just a joke. She’s my best friend. We did it as a joke,” I said, attempting to explain to my father how “In a Relationship” with your best friend on Facebook was humorous. He didn’t laugh. “I’m not gay, I’m serious!”
“Well, okay. Well, that’s good. I mean, if you were gay, that’d be fine too!”
“Dad, I’m not gay…”
“I was just thinking about this all week. And then you invited your girl friend on our trip to New England, and I thought that was your girlfriend. And then, I was going to ask you about it this weekend, but I didn’t want to ask it in front of Grandma and Grandpa, and it’s just…”
“Dad!” I laughed. “I’m really not gay!”
“Okay, are you sure? Because you know, I don’t care about that! I’d accept you either way. I was just wondering how you would have kids, would you adopt or…”
“DAD! I am NOT gay!” He had clearly been thinking about this for awhile, and it was so embedded in his head that he refused to believe that I was actually straight. “You will have grandchildren, okay? Lots!”
“Okay, phew! Good. But wait, not too soon right? Wait a little while!” he joked.
“Yes, Dad,” I giggled.
“Okay, that’s all I wanted to ask you!”
“Okay, Dad. I’ll talk to you later.” We exchanged our goodbyes with awkward laughs and I hung up the phone and realized how much I loved my dad.
After the conversation with my dad, I will admit I had to reflect on my past few crazy years in college. He had been so convinced that I was gay during that conversation that it actually scared me, setting me back into a self-conscience and confused reflection. I had experienced a plethora of things in that five minute conversation with my father that made me really sit back and not only take a look at myself, but at the queerness of it all.
- Coming Out? Although, I did not come out in this equation, because I am indeed a straight heterosexual female (who admittedly happens to appreciate other females), I felt as if I almost had, or as if I easily could have came out to my father; A privilege that I realize many homosexuals, attempting or wanting to come out to their parents, do not have. (Actually, a privilege that many heterosexuals with their regular, straight issues don’t even have lol). Taking this Queer Race (ENGL459Q) class had almost made me want to call my father back and say “Yes, I am gay!” just to see if his accepting reaction would still be the same. Would he suddenly be caught by surprise? Had he wholeheartedly thought I was gay, or maybe just a smidgen? I wondered. But the fact that he had wasted no to little time waiting on his daughter to come out to him made me feel proud.
- Double Standard. It’s obvious. As a woman, I feel as though we are allowed to be as sexual and as sexually open as we want and it’s often considered erotic or in plain terms “hot”. I can kiss girls on a drunken night or dance a little too close. I can take kissy pictures with friends and I’m still a heterosexual. (To some, apparently not my dad lol). But see a man kissing another man after a few too many beers, man taking a kissy photo with another man, or dancing a little too close to a man. That’s “homo” and it’s only right to call it “homo”. Why is that?
The tantalizing looks that two women being sexual with each other receive will be undoubtedly different than two men doing the same. I feel as though it’s unfortunately a double standard I even hold myself to. I can act “gay” and do things that are “gay”, but not be gay. A man who experimented in college with men, but is now married to a woman with children (WITHOUT any Christian intervention, but as a personal choice) would be looked at completely different than a woman who experimented in college and was not turned heterosexual.
I’m not a particular fan of double standards or anything unfair for that matter lol. Therefore I tried to think outside society’s box. If a person’s sexuality was based not just on their apparent present actions and sexual preferences, but on their past sexual preferences, are they gay? I, for a moment, subjected myself to the man’s side of the double standard and was displeased, as I questioned myself and feared that perhaps, acting out on my urges, whether sober or drunken, may have given people the wrong idea about my sexuality.
And then I thought again about how little I regretted about my past (It’s not as scandalous as I’m making it sound) and how momentarily ashamed I was to be so defensive about being questioned about my sexuality. Why couldn’t I have just answered with a simple “no” without all the defensive dramatics? There’s nothing wrong with being gay.
Kissing girls or not, it was obvious that it what I wanted to do at the time. I know that generally speaking, I am not gay. Although I find women physically attractive, I am secure in my heterosexuality to know that I am physically, mentally, emotionally, sexually, etc., etc., and all of the above ways, attracted to men. However, society, as we allow it, infamous for unfairly creating and placing labels on people, could generally convince others of different. I find it incredibly funny how it’s essential for society to make and enforce these labels, and how uncomfortable these labels can sometimes make us because what other people relate to them, and we are unfortunately a product of it all.
One thing that I learned from this whole, now very humorous situation, is that it’s SO IMPORTANT for people to define themselves by their own terms, not others, and not societies. The Census gives you Black, White, and Hispanic. What if you want to check all three? What if you don’t fit in the box? What happens then? You define you. And when you define you and become comfortable with your own label without having to check in with society, that’s when you become comfortable with yourself!
– Brittany Britto
This is a cool and informative blog on blogspot that we found which has numerous links pertaining to LGBT topics. The description of the blog reads “The activist blog uniting the Lesbian, Gay, Bisexual, Transgender, Queer, Intersexual, Asexual community & Allies in the fight for equality.”
With that being said, it has several posts alerting its followers of queer events, news, terminology, programs, associations, and brings to light the prevelance and most importantly the presence of the queer community. The posts are quick, easy reads and pretty creative They even have “Word of the Gay”, clarifying never heard of but commonly used queer terminology for the ignorant, and “Spotlights”, posts highlighting and promoting webs and organizations or programs that add to queer awareness or provide assistance to the community in some way. They have numerous posts, 49 for this new year alone and 1,309 for year 2009.
The greatest thing about this website is though it is named “Queers United”, it serves as a gateway to information and links to organizations, programs, and news that can not only benefit, help, and educate people of the queer community, but the heterosexual community as well!
Brittany, Brian, Lorena