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Malawi couple appeals to Constitutional Court
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Malawi couple appeals to Constitutional Court

by Mike Andrew - SGN Staff Writer

The couple arrested in Malawi and charged with 'gross indecency' after their December 28 wedding appealed to the country's Constitutional Court to hear their case.

Tiwonge Chimbalanga, 20, and Steven Monjeza, 26, were arrested and charged under a Malawian law forbidding homosexuality. If convicted, they face up to 14 years in prison.

The case is complicated by the fact that Chimbalanga identifies as a woman and is known among her neighbors as Auntie Tiwonge.

'Our argument is that the penal code under which our clients were charged is unconstitutional as it is against the spirit of the constitution,' Mauya Msuku, attorney for the couple, told a packed courtroom.

He said his clients had a constitutional right to 'privacy, dignity, belief, conscience and self-expression.'

Msuku, who has been hired by Malawi's underground Gay rights group Centre for the Development of People, said his clients "cannot be discriminated against, even on the basis of sexual orientation."

He argued that laws banning homosexuality "violate the right to marry and find a family."

The judge hearing their case insisted on proceeding with their trial, until the Constitutional Court decides whether to accept their appeal.

Magistrate Nyakwawa Usiwa-Usiwa began hearing witnesses brought by prosecutors, who asked sometimes lurid questions about Chimbalanga's gender identity.

In the following quotes, all pronouns are those originally used by the speaker.

Monjeza's brother Egbert Monjeza testified that he considered Chimbalanga a man.

"A woman has breasts. Aunt Tiwonge's chest is flat, a woman's bosom is wide, hers is flat," he said.

Asked by defense attorney Msuku how breasts of a 20-year-old should look, Monjeza answered, "They have to be plump so that any man who fondles them would turn libidinous."

At that, observers in the courtroom burst out laughing.

Raphael Phodi, pastor at the church where the couple met, testified that he had questions about Chimbalanga's gender, but accepted her as a woman.

"I accepted them as a married couple and recognized Tiwonge as a dedicated member of the Women's Guild," he said. "I had my doubts, but who was I to judge whether he was a woman or not?"

Another witness, Jean Kamphale, a lodge owner who employed Chimbalanga as a housekeeper, said that after the wedding ceremony she forced her to undress to determine her gender.

"I had to organize women workers and we asked him to undress. We were all shocked to learn that he was a man, complete with male organs," Kamphale said.

Meanwhile, Chimbalanga's uncle, identified as a "village headman," told reporters that his niece had always identified as a woman.

"Tiwonge was born a man but he has always shocked us with his feminine behavior," the uncle said. "He walks, talks and dresses like a woman. This has always been embarrassing to us and people have been accusing us of having bewitched him."

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