African jurisprudence on LGBT and possible reforms for Malawi

Abstract

Despite the world being pluralistic in sexuality, sexual minorities are often not recognized both in epistemology of the LGBT law and in court due to heteronormativity. Heteronormativity is grounded in a mythical epistemology that is not based on science of law. This has created a reverse-discourse which is non-conformist. Against this background, queer theory offers decolonial methodologies that expose the world as it is; queer. The extent to which the fiction in the law and jurisprudence has been condemned, and named illegal, has been missing out in scholarship. The sodomy law ultra vires the Constitution. The study brings attention to this undertheorized area and calls for elimination of such illegality which cannot be left out to common law’s pick-and-choose in setting legal precedent. Such false epistemology must not co-exist with scientific one. It exacerbates retrogressive jurisprudence. This is the situation in Malawi. The country has failed to leverage on the emerging jurisprudence from the African Commission and other African countries with progressive jurisprudence which offers possible reforms for Malawi’s LGBT law. In contributing to the discourse, I propose a model that uses anthropological and historical approaches to identify scientific queer epistemology that would create queer jurisprudence through legal reasoning, sovereignty as responsibility, Constitutional morality and international human rights law, offering both epistemological shift and jurisprudential shift towards the eradication of the myths and promotion of science hence legality of the law.