On 28 June 2024, the High Court handed down its judgment in the case of Akster and Another v Director of Public Prosecutions and Another. The matter concerned the referral to the Constitutional Court of two criminal cases in which the validity of the ‘unnatural offences’ provisions of Malawi’s Penal Code, which criminalise consensual same-sex sexual conduct among other acts, had been raised as an issue (‘the challenged provisions’).
One of the cases referred was that of Jana Gonani, a trans woman convicted of various offences, including permitting a male person to have sexual intercourse with her. The High Court held that the challenged provisions were constitutional and did not breach any of the fundamental rights relied upon by the claimants, including the rights to privacy, human dignity, liberty, and equal protection before the law. The court found that the provisions prohibit all people from engaging in certain sexual conduct regardless of whether they are engaging with a member of the opposite sex or not and were therefore not discriminatory.
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