Codifying ‘custom’: anti-sodomy laws

With the rise of colonial institutions and influence in places like Nyasaland, officials took interest in codifying and modifying the sets of ideal rules imagined as ‘traditional law’ to make them amenable to incorporation into a system of colonial rule of law. Historian Martin Chanock (Reference Chanock1985) suggests that custom became a resource of colonial government, rather than a resource of the people. Colonial officials and lawmakers sought to build on existing ‘collectivist’ customary law even as they attempted to cultivate Christian guilt in their subjects by equating breaking a law with sinning. Chanock shows, however, that the existence of a continuous, ancient and unified body of customary law that could serve as a foundation to be built upon was a fiction (cf. Mamdani Reference Mamdani1996: 110). This ideal was produced in ongoing colonial processes and was mobilised toward shifting and diverse interests. Amid anxieties around changing social structures – a migrant labour system that created an urban-rural diaspora, shifts in gender relations and roles, declining influence of gerontocratic hierarchies of rule, and influx of commodities and cash – many Africans came to favour the formalisation and codification of law to preserve and ensure the primacy of definitions of right and wrong. African neo-traditionalism, then, inadvertently furthered the white imperative to make African legal systems align more closely with the English rule of law (Chanock Reference Chanock1985: 128–45).

Laws to criminalise and punish same-sex activity were a uniform feature of British rule and emerged out of British sensibilities that these acts and desires were morally unacceptable. The figure of the sodomite also activated anxieties around the maintenance of normative social reproduction and production at the centre of the British migrant labour system's massive demand for healthy male bodies. The packaging of moral codes with material culture, plans for economic development, and religious beliefs furthered a civilising project rooted in white hegemony.Footnote ⁵

The codified criminalisation of sodomy took shape in 1825 in the form of the Indian Penal Code (IPC), making India a legal laboratory from which the IPC would travel to other sites in Africa and Asia (Human Rights Watch 2008: 15–21; Kirby Reference Kirby2011: 29). The penal code covered a large domain of acts considered to be sexual: thigh sex, oral sex, or any other form of non-procreative intimacy, often presuming western notions of sexuality and sex as universals (cf. Pigg Reference Pigg, Adams and Leigh Pigg2005). Certainly, traditional law also recognised ‘unnatural offences’. In his notes on Chewa Tribal Law, anthropologist and Nyasaland District Commissioner W.H.T. Rangeley (Reference Rangeley1948) suggests that although there were ‘no specific names’ for them in local (Chichewa/Chinyanja) language, buggery and sodomy among adults were recognised as unnatural and that the agent was often described as mfiti (one who engages in witchcraft), though among children homosexual acts were viewed as an innocuous form of play (33–8). Recently, scholars have explored historical manifestations of queer intimacies in African contexts, suggesting that even as African (homo)-sexualities are ‘homegrown’, they have long been instrumentalised to justify western paternalism, intervention and imperialism, or to bolster nationalist and political agendas (Hoad Reference Hoad2007; M'Baye Reference M'Baye2013). Historians have also shown that same-sex relations often arose among Africans as they adapted to new physical and social spaces created by racialised capitalism and colonial rule (e.g. Marc Epprecht's account of inkotshane, or mine marriages). In historicising African same-sex intimacies and in discussions of ‘situational homosexuality’, scholars challenge the narrative that homosexuality is a western import and destabilise representations of African culture as inherently homophobic (Moodie et al. Reference Moodie, Ndatshe and Sibuye1988; Moodie Reference Moodie1994; Epprecht Reference Epprecht2001, Reference Epprecht2004). However, as Kenda Mutongi (Reference Mutongi, Cole and Thomas2009) argues, they may also contribute to de-eroticising same-sex desires (88). Nonetheless, a growing body of work problematises the silences around homosexuality in Africa produced by research methods themselves – surveys of sexual behaviour that do not include forms of same-sex intimacy or historians' reliance on colonial archives – that may reinforce the ‘unsaying’ of indigenous same-sex sexualities (Epprecht Reference Epprecht1998, Reference Epprecht2008; Lorway Reference Lorway2006).

Having indicated the ways in which anxieties about new and rapidly changing relations between persons prompted an effort to recreate and protect an idealised ‘African’ and traditional past (and to inadvertently further imperial or state interests) in neo-traditionalist idioms, I now recount a similar process as it played out in the trial of two individuals recently accused of sodomy in Malawi. Both ‘customary law’ (as mobilised during the construction of colonial legal systems in south central Africa) and ‘African culture’ (as mobilised during the 2010 trial) are dynamic categories responsive to and reflective of social processes and anxieties and act as effective anchors for specific claims and interests.

Tiwonge, Steven, and ‘gross indecency’ on trial

In Criminal Case #359, the defendants were charged with, in the case of Steven, ‘buggery or having carnal knowledge of the second accused person … against the order of nature’ (as contrary to Section 153(a) of the Penal Code), and, in the case of Tiwonge, ‘buggery or … permitting the first accused person to have carnal knowledge of him against the order of nature’ (as contrary to Section 153(c) of the Penal Code). Both men were also charged with the offence of indecent practices between males contrary to Section 156 of the Penal Code. As is the case for many other former British colonies, Malawi has retained these sections of the penal code originally imported into local legal systems by the British (Kirby Reference Kirby2011: 28). Section 153 outlaws unnatural offences, including having carnal knowledge of a person or animal, or allowing a person to have carnal knowledge of him/her. Considered felonies, the punishment for these acts is up to fourteen years of imprisonment with or without corporal punishment. Section 156 outlaws indecent practices between males and punishes ‘acts of gross indecency … in private or public’ by imprisonment for five years with or without corporal punishment (Malawi Penal Code 2003).Footnote ⁶ The court is faced with how to define terms like ‘unnatural offence’, ‘indecent practice’ and ‘acts of gross indecency’. In the unfolding proceedings in the courtroom, we witness the judge working out, as he hears evidence from witnesses, the contours of a distinctively Malawian moral sensibility. In what follows, I show how ‘Malawian culture’ was a spectre in the courtroom, haunting and ultimately acting as the evidentiary anchor for the court's ‘homophobic’ decision.

On 26 December 2009, Steven and Tiwonge were engaged in a ceremony called chinkhoswe, a traditional matrimonial agreement that involves celebration and the reception of advice by the betrothed from traditional marriage counsellors (ankhoswe). This ceremony took place at a lodge where Tiwonge had been employed in Blantyre city. The court must answer two questions to determine the guilt or innocence of the two men: (1) Is the fact that the couple engaged in a chinkhoswe ceremony enough to conclude that the two had carnal knowledge against the order of nature?; and (2) Were there indecent practices between these two men?

One part of the evidence against the men was collected in the form of testimonies from nine witnesses called by the State: Steven's grandmother; a church elder at Tiwonge's church; a friend of Tiwonge's; the owner of the lodge where Tiwonge was employed and where the chinkhoswe occurred in 2009; a fellow churchgoer; the photographer from the engagement ceremony; an obstetrician/gynaecologist; a psychiatrist; and a detective inspector. While the first six witnesses pulled into the courtroom were extracted from their intimate places in Steven and Tiwonge's social network(s) to share insights drawn from interpersonal interactions with the two, the latter three were State agents whose compositional forms of expertise (medical, psychological, criminal) were to bring to light the yet uncovered ‘hard facts’ of the case. First, I present the ways in which the witnesses narratively police Tiwonge's gender in the face of uncertainties recently brought to light about her femaleness. Then I analyse the evidence brought to bear on the question of the sexual (or not) relationship between these two individuals, emphasising the instrumentalisation of culture.

‘… from the horse's mouth’: the ‘truth’ of Tiwonge's gender

Underlying the testimonies is, first, a concern with pinning down Tiwonge's biological, genitally defined sex and, second, a concern with using cultural gender norms as a measuring stick for her interactional and work-related realities. While sussing out Tiwonge's ‘true’ sex is, in the case of the agents of the State called to the witness stand later in the trial, a matter of medical and psychiatric concern, for the first six witnesses, determining Tiwonge's sex entails a sort of social autopsy of their relations with her in order to assess retrospectively whether she really is/was a woman. This autopsy draws on social relational and bodily evidence. In recalling their initial and ongoing social interactions with Tiwonge, four women and two men who share her social space – in differing degrees of intimacy – are most concerned with measuring Tiwonge's physical outward appearance against shared norms around the category ‘woman’. Secondarily, the female witnesses all express resentment toward Tiwonge for, in their determination, having ‘fooled’ them for some period of time regarding her true gender.Footnote ⁷

Flony Frank, a friend to the accused, claimed she has always known Tiwonge as a woman and when Tiwonge announced to Flony her plans to get engaged to Steven, Flony lent Tiwonge her zitenje for the ceremony. This act implies that Flony apprehended her friend as a woman and deemed her a worthy recipient of her zitenje, traditional fabric that is women's wear (or ‘national wear’) and that carries historical associations with the Malawian State's capture of women as political dancers or symbols of embodied ‘tradition’ (Ribohn Reference Ribohn and Englund2002; Gilman Reference Gilman2004). We might read this act as one that affirmed Tiwonge's female gender at the time of exchange. Later in the trial, a detective presents as evidence the clothes worn by Steven and Tiwonge at their engagement ceremony – ‘a skirt and blouse (national wear) for Tiwonge and a shirt made from a similar cloth for Steven’. Underlying the testimonies are hints that Tiwonge was a proper woman in many ways – attending church regularly and seeking to follow traditional womanly protocols for a proper engagement and marriage to Steven. Retrospectively, then, we might read the series of acts recalled during the trial – a pastor's agreement to take on a role as a traditional marriage counsellor (ankhoswe) to the couple when asked by Steven, the engagement photographer's willingness to serve as a marriage advocate for Tiwonge, the loaning of zitenje to Tiwonge by Flony, the admission of Tiwonge into a church congregation as a woman, and her employment in women's work at a lodge – as individual acts that accumulatively verified Tiwonge as a ‘woman’ in her community. Indeed, locally, Tiwonge was known by the nickname ‘Auntie Tiwo’.

The witnesses also use bodily evidence to answer the question of Tiwonge's sex. Steven's grandmother suggests that when her grandson first brought Tiwonge to her in October 2009 (an initial step in the unfolding chinkhoswe ceremony), she asked him whether his ‘wife’ [quotation marks retained from source] was male or female because Tiwonge lacked feminine features, most notably breasts.Footnote ⁸ Despite her questions regarding Tiwonge's masculine appearance, she was in attendance at the ceremony two months later. Upon reading in the newspaper that Tiwonge was actually a man, she and a friend (Mrs Jean Kamphale) went to her house to confront her and hear ‘from the horse's mouth’ the truth. Mrs Kamphale suggests that Tiwonge, ‘voluntarily took off [all] her clothes’ and the witnesses observed the private parts of a male, ‘though they did not look normal’. Thus, though the women did hear, as we will soon see, ‘from the horse's mouth’ the mechanics of Tiwonge's sex acts with Steven, the truth of her sex was – in the eyes of these women – visibly written on her body if not verbally endorsed by Tiwonge, who identifies as a woman.

The informal and ambiguous conclusion that Tiwonge's female friends arrive at after visually examining her body has a formal and validated analogue in an exam conducted in a medical clinic. One of the nine witnesses called to the stand was Dr Bonus Makanani. A gynaecologist, Makanani was asked (by the police) to perform a medical examination in order to determine – to attain the required legal burden of proof – first, that Chimbalanga was indeed a biological male and, second, that Chimbalanga had been anally penetrated. This recourse to medical expertise recalls historical cases in which those tried for sodomy submitted to an anal exam that would determine whether they were ‘habitual sodomites’; those belonging to this category of person were thought to display an anus that appears ‘infundibuliform’ (funnel or trumpet-shaped). A medical exam that confirmed this shape could serve not only as evidence of the act but of an individual's larger identity. This evidence base later expanded to encompass a medical mythology of the sodomite as possessing a shaved anus, a depuckered anal orifice and excessively developed buttocks (HRW 2008: 28–31). The deployment of medical expertise toward authoritatively determining the sex of an ambiguously gendered individual recalls also the case of Herculine Adélaîde Barbin, a nineteenth century intersexed individual living in France whose ‘hermaphroditism’ mobilised public, legal and medical efforts to classify Barbin within existing taxonomies of sex and gender (Foucault Reference Foucault1980).

On 5 January 2010, Makanani administered his exam, concluding that Tiwonge was a man. On the question of whether Tiwonge had been penetrated anally, he could not answer, claiming that determining this fact was not within his expertise and also exceeded the expertise of [anyone] in Malawi. The finding that Tiwonge was a male-bodied individual was deployed alongside a psychiatrist's testimony that Tiwonge has gender disorientation and considers himself a woman. Taken together, then, the testimonies of Tiwonge's familiars and the medical experts ‘prove’ that she is a he.

‘Corrupting a whole nation with a chinkoswe ceremony’: the question of carnal knowledge

Having established that Tiwonge and Steven are both male-bodied, the State moves to prove that Steven had carnal knowledge of Tiwonge and that Tiwonge allowed him carnal knowledge. In the absence of their verbal admission of guilt on these two charges, the State must rely on circumstantial evidence. The witnesses allege that Tiwonge said she had sex by ‘using the anus’ and by placing Steven's penis between her legs to generate friction. However, these confessions and the informal examination of Tiwonge's genitals by the female witnesses (who eventually concluded that she was a he) became inadmissible when the defence argued that the confession of anal sex and the ‘confession’ via undressing were not freely made and, therefore, taken without true consent. While the medical examination supplanted informal examination of Tiwonge by her friends and produced viable evidence, the question of whether the couple had carnal knowledge of one another remained outstanding: ‘There is no way a single soul would have been present to witness the two having sex through the anus’.

In the absence of confession, medical evidence of anal penetration, or direct observation of the act, the question of whether the two had sexual relations shifts to the locus of cultural conventions around marriage. Witnesses considered the two to be husband and wife and expressed resentment that Tiwonge had ‘duped’ them for so long. From this social formalisation of an informal partnership, the State mobilises cultural norms to bolster the claim that, ‘sex through the anus is the only reasonable and rational conclusion that can be derived from everything that took place between the … accused’. This was justified via the fact that ‘it is common’ in Malawi for people in heterosexual relationships to stay together, have sex and bear children without formalising their relationships (notably, this contradicts a statement earlier in the trial that living together does not necessarily prove a couple had sexual relations).

The court must next determine whether the two men have committed ‘acts of gross indecency’, based on definitions of where mere indecency ends and where gross indecency begins. Drawing on a dictionary definition of indecency (‘offending against standards of morality’) and on historical precedent that names society as the ultimate guardian of decency, the State argued that an engagement in a Malawian setting takes place between a man and a woman. Since standards of propriety in Malawi do not recognise two men having an engagement ceremony or living together as husband and wife, their acts are deemed to be grossly indecent. Further evidence of this charge lies in their acting ‘in consent’. The judge's final remarks invoke Malawian culture to solidly delineate the boundaries of the moral community from which his ‘guilty’ verdict excises Steven and Tiwonge. In not only voluntarily ‘transgressing’ the Malawian recognised standards of propriety, but also in their intention to ‘co-opt and corrupt’ the traditional Malawian institution of chinkhoswe, the couple levelled a ‘shock against the morals of a Malawian society’ and ‘leave a scar on our morality’.

The Defence's argument for a mitigated sentence, however, also invokes culture, or what might be termed chikalidwe, proper Malawian behaviour and comportment. Appealing to the court ‘sitting in the place of Malawian society’, the defence makes the case that the couple deserves forgiveness from society. At the centre of this argument is Tiwonge – ‘a friendly person and a dedicated church goer; a hard worker, who even earned the sympathy of [her] employer's children’. He suggests that, ‘they [the couple] innocently stayed together and wanted the public to celebrate with them without malice [as an] afterthought’. Finally, he warns the judge that sending these men to prison is analogous to sending married people to prison; they must be protected from what might befall them there. However, the Defence's suggestion that the two ought to be forgiven, loved, preached unto and incorporated or counselled by a psychiatrist at the mental hospital indicates nonetheless that Tiwonge and Steven must undergo re-normalisation into the social community they currently stand outside of.

The uncertain certainty that Tiwonge is male-bodied deflates these appeals to the judge; he accuses the Defence of comparing this ‘bizarre marriage’ to a normal practice or any other lawful marriage in Malawi. He reiterates that he finds it grossly wrong, especially since the perpetrators, ‘go on to seek heroism, without any remorse … and think of corrupting a whole nation with a chinkhoswe ceremony’. He hopes his sentence will scare others who may be tempted to emulate [such a] ‘horrendous example’. He views the court as protector of Malawian society and culture:

Colonial era sodomy laws became not punishments for particular acts but broad instruments of social control: ‘They [began] as invaders’ impositions – an alien framework to subdue subject populations – and then morphed over time into alleged mirrors of a supposedly originary moral sense’ (HRW 2008: 53). In the proceedings of Criminal Case #359, we see the penal codes under which Steven and Tiwonge are convicted converted from little-used colonial relics to potent instruments that police the boundaries of the present-day Malawian nation. Each of the individual witnesses, in their efforts to work out the ‘truth’ of Tiwonge's sex or the validity of Steven and Tiwonge's ‘marriage’, polices the boundaries of not only gender, sex, morality and social institutions, but also of the modern Malawian national body. In the verbal autopsy of social intimacies and interactions with Tiwonge that led up to the problematisation of her femaleness, we detect the malleability of truth as measured under different regimes of knowledge (social relational, legal, medical).

Central to the unfolding proceedings is ‘Malawian culture’, which simultaneously stands in as that which the court and Malawian citizens must protect, and as a reservoir of evidence that can be mobilised, in this case, toward convicting the same-sex couple. However, this ‘culture’ – even if rhetorically deployed as essentially Malawian and ancient – is the product of reciprocal gazes between Malawi and the wider world. Its power lies in its efficacy in this particular moment as a symbolic weapon against moral and economic dependency and the logic of ‘copying’ (as mentioned in Mutharika's political statements above and in the judge's warning against Malawian citizens who consider copying a ‘horrendous example’). The couple's effort to copy the rituals associated with chinkhoswe and their copying of western homosexuality generated especial anxiety. Their ability to effectively masquerade (by adopting the clothing, roles and practices of the ceremony) as husband and wife is interpreted by the judge as ‘corrupting’ a national, cultural tradition that Tiwonge and Steven do not have legitimate access to. In mixing Malawian culture with foreign culture in this way, they have created something ‘bizarre’ whose place is outside Malawi.

‘Cultural practices’, national bodies

Foucault compels us to see sexuality not as a universal formation that manifests in the same way everywhere but, rather, as cultural and contingent (Foucault Reference Foucault1978, Reference Foucault1985). Certainly, the AIDS epidemic in Malawi placed ‘sexuality’ under a microscope, and AIDS prevention efforts have centred on documenting and determining the riskiness of a broad array of ‘cultural practices’. In 2005, I helped oversee (in collaboration with a Malawian researcher) a large-scale inventory of cultural practices across Malawi's three regions. This ambitious endeavour, headed by the NAC, administered open-ended questionnaires to ‘cultural guardians’, such as traditional birth attendants (azamba) and ritual circumcisers (ngaliba). In addition, project staff interviewed individuals who had participated in cultural practices classified as ‘risky’. For example, men who had performed the role of fisi (translation: hyena) comprised part of this sample. Fisi are male friends or relatives of an infertile man who gives them permission to engage in sexual intercourse with his wife (any resulting child is considered the husband's). Most of the practices that were of interest to the researchers were sexual in nature – as in the case of fisi or various rituals that are crudely glossed as sexual cleansing. The surveys and interview tools inventoried only heterosexual cultural practices. The cultural practices research programme emerged from the Malawian government's narrative of cultural change centred on modification or elimination of risky or bad cultural practices and preservation of good ones (see Peters et al. Reference Peters, Kambewa and Walker2010: 292–6 for an overview of media discussion of ‘cultural practices’ and AIDS in Malawi). Even as this focus on ‘culture’ diverted attention from structural shortcomings in dealing with the epidemic, rhetoric indicated that the way Malawians have sex is cultural and that culture could be changed toward protecting the larger national community.

Whereas culture became an important gateway for intervention into Malawian bodies under the sign of this cultural practices rhetoric, culture also operates to exclude (or quarantine) MSM from the national body altogether, negatively affecting their health. While cultural practices rhetoric considers sexual practice(s) to be a cultural dimension of (Malawian) human life, homophobic discourse casts MSM outside the national community by suggesting their sexual practices do not fall under the sign of Malawian culture. In this rhetorical excision of MSM bodies from a larger social body, we note parallels between the bellicose language of biomedicine – centred on friend/enemy discourse as it shapes understandings of human immune systems – and the efforts of the Malawian national ‘body’ to defend its frontiers (Cohen Reference Cohen2008).

‘That doesn't happen here!’: culture, AIDS and MSM

In 2008, I attended a Research Dissemination Workshop in northern Malawi sponsored by the National AIDS Commission.Footnote ¹¹ Presenters included the NAC research officer and AIDS researchers (Malawian, American and Canadian). The audience was ‘local stakeholders’ ranging from community-based organisations (CBOs) to members of district assemblies and the District AIDS Commission (DAC), in line with the government's increasing emphasis on wider dissemination of research findings. At the workshop, the director of a prominent Malawian human rights NGO presented findings from a cross-sectional study of MSM sexual behaviours in Malawi. As he projected the title slide of his presentation, a CBO representative exclaimed, ‘There are none of these MSM here [in Malawi]!’ This claim directly contradicted the presenter's: ‘MSM are more significant in our country's epidemic than ever imagined’. The evidence the speaker drew on to support his claim encompassed statistical findings from an exploratory study he had conducted with help from a prominent American university and comparative data from other countries with high HIV prevalence. Aware that his audience was unfamiliar with the acronym ‘MSM’, he explicitly defined it.Footnote ¹²

Explaining that his research was part of a larger four-country study, he pointed to numbers on a projected PowerPoint slide: HIV seroprevalence for MSM is 21·0% (compared with national prevalence of around 10–12%). Complementing this figure with actual numbers and the confidence interval provided credibility for a statistical claim that was nested in others: new infections in MSM comprise 10–15% of the global AIDS burden. Numbers were also used to represent the gravity of the situation for MSM in Malawi, who are often abused, raped, blackmailed or afraid of disclosing to a health professional. The researcher called for sensitisation of policy makers, HIV/AIDS key players, and other stakeholders, for specific interventions, and for research to explore sexual behaviours and social stigma. He underscored his points by suggesting Malawi was ‘behind’ other countries in recognising gay and human rights. His presentation placed Malawi in larger national and transnational landscapes. In a long history of statistics' role in marking national time and space, the numbers located MSM as a distinctly Malawian problem even as they join a global panel of data that transnationalise the category ‘MSM’.

Despite the apparent credibility of his findings, the evidence failed to convince the audience. When the speaker described the main avenue of transmission for MSM (anal sex), the audience responded with shock, moral outrage and disgust. ‘That doesn't happen here!’ a woman shouted from the back. In these competing claims, we note the instrumentalisation of ‘culture’ toward two very different ends. Audience members established Malawi's cultural particularity as a ‘decent’ nation steeped in ‘traditional values’ where homosexuality does not exist and same-sex sexual practices are inimical to religious, traditional and national norms. Conversely, the presenter aimed to include Malawi's MSM in a larger transnational culture where the issue of MSM is at the forefront of efforts to fight the spread of AIDS.

Although the MSM research fell flat when presented to national audiences, its failure in these spaces permitted it mobility across transnational sites knit together by their stated commitment to a ‘culture of rights’. Lesbian and gay human rights discourse provides local activists access to donor capital that allows them agency through local victimage (Hoad Reference Hoad1999), even as it may also produce new forms of elitism on the ground (Englund Reference Englund2006). The gay issue in Malawi, for example, brought the country's most visible minority rights NGO into the limelight. Though the NGO's offices were raided and vandalised by police to indicate government displeasure with its provision of legal advice and counsel to the jailed couple in 2009, the international community has shown an outpouring of generosity toward the NGO since then (activist 2010 int.). The NGO's director has become a hero of gay activism in sub-Saharan Africa. Notably, his and other African LGBT activists' entry into transnational queer cultures is enabled by the very ‘culture’ that blocks their entry into national communities and, often, places them in danger at home.

In late 2008, the director reflected on how the paper that had ‘failed’ at the conference, had ‘really helped [him] move around’; he had recently travelled to Mexico, Austria, South Africa and Senegal to present his research and to network with other MSM researchers and activists. In 2010, we met in Baltimore where he was attending workshops in preparation for a large MSM study across a number of African nations. In 2013, he explained that all the interest in Malawian MSM since 2009 has now made them ‘victims of research’ (activist 2013 int.). Further, despite its origins in efforts to detach sexual practices from sexual identity, the acronym MSM has taken on political (and identitarian) valence in the Malawi context, especially once the NGO gained notoriety for its role in freeing Steven and Tiwonge (cf. Boellstorff Reference Boellstorff2011). When speaking publicly, Malawian activists tend to use the term MSM whether they are talking about AIDS (‘MSM need access to AIDS education!’) or human rights (‘MSM should not be persecuted and vilified!’). NGO staff members and clients ambivalently deploy multiple identitarian categories in the interest of garnering resources and support. As others have shown, taking up and learning to occupy such categories allows sexual minorities across the globe to appeal to the interests and sympathies of potential donors and supporters who comprise what Evelyn Blackwood (Reference Blackwood2008) terms the ‘global gay ecumene’. ‘Human rights talk’ has proliferated in Malawi, assigning a certain naturalism to individuals or groups as bearers of rights that obscures the pluralism of notions of selfhood and morality (Englund Reference Englund2000). Kabwila (Reference Kabwila, Ekine and Abbas2013) indicts human rights discourse in Malawi for its ‘imperial, parasitic and vulture character’ (376), calling for a serious conversation about homosexuality on decolonised terms. Nonetheless, ‘human rights talk’ in Malawi, as elsewhere, is deployed tactically by a variety of actors, and is a key pivot in considering the operations of homophobia.

The ‘homophobia’ that operated to simultaneously block MSM entrance into a national community and to enable MSM access to transnational communities emerges here in a crucible of the moral and the material, perhaps best captured by a common refrain across all sectors of Malawian society: ‘AIDS is Money!’ As a national problem that has legitimated governmental and transnational scrutiny of sexual practices in Malawi, AIDS has become an ‘injury’ that can be used to make claims on state and non-state actors for drugs, food or monetary inputs (see Kalofonos Reference Kalofonos2010; Nguyen Reference Nguyen2010; Samsky Reference Samsky2012). As research on risk groups expands, AIDS policies and proposals are reservoirs of proliferating acronyms (OVC, MSM, LGBT, WSW, IDU). Recognition in national policy is often the first step to receiving much-needed monetary and other resources.

Though Malawian policy is, in general, ‘donor driven’, the NAC distributes centralised pooled donor monies, illustrating the tensions and possibilities that obtain within the international aid/AIDS industry's infrastructure (cf. Bidaurratzaga-Aurre & Colom-Jaén Reference Bidaurratzaga-Aurre and Colom-Jaén2012; Esser Reference Esser2012; Wroe Reference Wroe2012). As the passageway between donors and Malawian citizens, NAC acts as a gatekeeper, arbitrating the worthiness of subcultural populations, risk groups and organisations on the ground. While the term ‘cultural practices’ has helped NAC target individuals ranging from fisi to hule (sex workers) and men with multiple concurrent partners, the prefix ‘cultural’ – in this case as a referent to Malawian culture – disqualified MSM from receiving ‘national’ monies until early 2013.

After the 2009 ‘gay issue’ gained prominence in the national and transnational imagination, the discourse of conditional aid and donor pressure permitted previously silenced MSM a platform from which to claim a new kind of citizenship. Many have suggested that the gravity of the AIDS epidemic in nations that maintain anti-gay laws may be a way to persuade countries to repeal these laws in the name of the public (health) good. In 2009, a Delhi-based NGO successfully argued in the High Court of Delhi that Section 377 of the Indian Penal Code (which criminalises ‘unnatural offences’) was unconstitutional (this ruling was overturned in 2013). Their argument centred on protection of the public interest on grounds that the NGO's AIDS work was being hampered by discrimination experienced by the gay community as a result of Section 377.Footnote ¹³ One can only speculate whether this argument may succeed in the Malawian context where the state simultaneously traffics in homophobic rhetoric and, of late, disburses AIDS monies to MSM even as media sources point out that the government is ‘receiving money on the backs of gays’ and political spokespersons have publicly indicated that sanctioning research on homosexuals does not make it legal in the country (Nyasatimes 24.2.2012).