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 be 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 chinkhoswe. 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:
Definitions and argument and arguments that are not really arguments.
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 judges really use the Oxford Advanced Learners Dictionary?]
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. [How does what appears to be a statement of fact become an argument?]
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.
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.