16 Days: Facing imprisonment in Malawi

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

Facing imprisonment in Malawi

M is from Malawi and from an early age she knew that she did not conform to the sexual and gender norms of her community. In 2006, she started a romantic relationship with a woman but they had to keep their relationship secret. In Malawi, homosexuality is criminalised by the law and, in her community, being homosexual can lead to harassment and arrest. Although she was able to keep her relationship secret for 5 years, intimate photos were revealed on social media in her community.

She was harassed and forced to leave her job and home. The harassment continued and her family rejected her. M was unable to report these crimes because she feared being arrested because of her sexual orientation.

M was attacked one late afternoon by a group of men who tried to rape her. They justified their behaviour by saying that they would show her what it was like to be a real woman. She moved to a nearby village and stayed with other family members, but was unable to tell them why she had fled her parents’ house. Together with her partner, she fled to South Africa, even though she wasn’t sure if they would be accepted here. They travelled through Mozambique and arrived in South Africa in January 2012.

M applied for asylum shortly after her arrival. At the time, she was unaware that she could claim refugee status on the basis that she had been persecuted in Malawi because of her sexual orientation. She was also afraid of how the officials at the Refugee Reception Office would react. When she attended her first interview, she was accompanied by a friend of a friend, who was also from Malawi. Given the attitudes to homosexuality, she feared that by revealing her status to her friends, they may refuse to help her.

She did not state the true reason for her flight from Malawi.  Instead, she told the Department that she had fled for economic reasons; that she had lost her job and hoped to make money in South Africa. When she went for a second interview, she still did not tell the official the real story. She also did not want the Refugee Status Determination Officer (RSDO) “to think that I was lying or changing my story”.  She was trying to protect herself from further homophobic persecution.

Her asylum application was rejected. However, it was found that her right to approach the Standing Committee for Refugee Affairs (SCRA), who would be reviewing the decision of the RSDO, was never explained to her and the SCRA upheld the rejection of her asylum claim. She was advised to approach the Legal Resources Centre.

The UNHCR has recognised that merely being compelled to hide one’s sexual orientation amounts to persecution. The LRC argued on her behalf that sending her back to Malawi would constitute refoulement, because she faces physical and mental trauma (further persecution). South Africa is the only African country where sexual minority rights are protected by the Constitution. The South African government clearly has a legal obligation to give asylum to M. This obligation rests in section 7(2) of the Constitution; that is, to respect, protect, promote and fulfil the rights in the Bill of Rights. Section 2 of the Refugees Act contains a clear prohibition on returning anybody to a country where they will face persecution on the basis of their sexual orientation.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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