Types of criminalisation

  • Criminalises LGBT people
  • Criminalises sexual activity between males
  • Criminalises sexual activity between females
  • Criminalises the gender expression of trans people

Same-sex sexual activity is prohibited under the Penal Code, which criminalises acts of ‘carnal knowledge against the order of nature’ and ‘gross indecency’. These provisions carry a maximum penalty of fourteen years’ imprisonment with corporal punishment. Both men and women are criminalised under the law. In addition to potentially being captured by laws that criminalise same-sex activity, trans people may also face prosecution under a law criminalising ‘idle and disorderly persons’ with a maximum penalty of six months’ imprisonment and a fine.

The law was inherited from the British in 1960 during, in which the English criminal law was imposed upon Malawi. Malawi retained the provision upon independence and continues to criminalise same-sex sexual activity today.

A moratorium on arrests under the criminalising provisions has been in place since 2014, and while LGBT people have occasionally been arrested, there appears to have been no prosecutions during this time. There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including assault, arbitrary detention, harassment, and discrimination in employment and education.

Sexual Offence Law Assessment

We’ve also assessed Malawi’s sexual offence laws against international human rights standards. Not only does Malawi criminalise same-sex sexual activity and expression of gender identity, it also fails to properly protect other vulnerable groups, such as women, children, and people with disability, from sexual offences.

Find out more


In December, Jana Gonani, a trans woman, was convicted under section 153(c) of the Penal Code (unnatural offence) by the Magistrate Court at Mangochi and was sentenced to eight years in prison. She appealed of the judgment.


The US Department of State report noted that while the government did not actively enforce the law, same-sex sexual activity may be prosecuted under ‘breach of the peace’ laws.


Despite the moratorium being in place since July 2014, two men were arrested in December apparently on ‘sodomy’ charges. Later that month, then Justice Minister Samuel Tembenu released a statement reaffirming the government’s commitment to the moratorium. The charges against the men were subsequently dropped.

The Government has committed itself to review the penal laws on homosexuality under the Penal Code, but this has to be done in consultation with the people of Malawi … [The] Government has imposed a moratorium on arrests and prosecution of consensual homosexual acts.

Former Justice Minister, Samuel Tembenu, 2015


The US Department of State Human Rights Report on Malawi noted that same-sex activity may also be prosecuted as “conduct likely to cause a breach of the peace”.

In July, the Malawi Government announced a moratorium on its anti-gay laws. In a statement to the UN Human Rights Committee in Geneva, Secretary for Justice and Attorney General, Janet Chikaya-Banda said that while no formal body had been created to review the possibility of decriminalising homosexuality in Malawi, there is political will to do so. After rejecting claims that there was a moratorium on prosecutions in 2012 (see below), the Malawi Government has now confirmed that police have been instructed not to arrest people for homosexuality. Reports suggest that no one in Malawi has been arrested since 2012. A number of examples before this are presented in the 2012 UK Country of Origin Report.


On assuming office, then President Joyce Banda announced at her first State of the Union address in May her intention to repeal laws criminalising homosexuality. However, due to strong domestic pressure, Banda reversed her position and explained that the people of Malawi apparently were not ready to repeal the country’s laws against homosexual activity.

In November, it was reported that a moratorium on arrests had been adopted by the government. Later that month, after criticism by church groups and the Law Society, Justice Minister Ralph Kasambara, denied these reports saying that a moratorium had been put in place.


In May, a gay man, Steven Monjeza, and transgender woman, Tiwonge Chimbalanga, were prosecuted and sentenced to 14 years’ imprisonment with hard labour. They were later pardoned by the President following an intervention by UN Secretary General, Ban Ki-Moon.

Discrimination and Violence


In July, religious groups marched in cities across Malawi to protest against same-sex marriage, as the Constitutional Court was expected to consider a case brought by Jana Gonani, a trans woman convicted in December 2021 for ”unnatural offence”. She appealed of her sentence and challenged the constitutionality of the criminalising provisions of the Penal Code.


The Centre for the Development of People recorded 15 instances of stigma, harassment, and violence based upon sexual orientation and gender identity. LGBT faced discrimination in hiring and harassment, and LGBT asylum seekers were denied registration on the basis that same-sex sexual activity is criminalised.


Research published in 2019 found that 41% of LGBT people had experienced physical violence in their lifetime, with 33% experiencing it in the past year. Additionally, 42% had experienced sexual violence (34% in the past year), while 66% had been subjected to verbal harassment on the basis of their sexual orientation or gender identity (51% in the past year).


A Human Rights Watch report documented the treatment of LGBT people in Malawi, noting that they face “routine violence and discrimination in almost all aspects of their daily lives.” The incidents include arbitrary arrest and detention and assault by police.


The Centre for the Development of People recorded 15 instances of stigma, harassment, and violence based upon sexual orientation and gender identity.

Civil Society Organisations pressed President Peter Mutharika, who was elected in May 2014, to declare his stand on LGBT rights. In January, it was reported that he was supportive of LGBT rights.

[President Peter Mutharika] wants gay rights protected.

Government Press Secretary, Gerald Viola, 2016


The US Department of State report documented that public discussion of LGBT rights increased during the year. In October, the Centre for Human Rights and Rehabilitation and the Centre for the Development of People released a report documenting 76 instances in 2013 of discrimination and human rights violations in the country based on sexual orientation and gender identity. Documented abuses included mob violence and police harassment directed toward gay or allegedly gay men. For example, it was reported that in July 2013 a gay man named Vincent was beaten by a mob and subsequently arrested and assaulted by police.

Other Developments


In June, members of the LGBT community held the first ever pride parade in Lilongwe, calling for changes in the law to end the criminalisation of same-sex sexual activity, end discrimination and violence against LGBT people, and provide equal access to health care.


Local Organisations

Related Countries


Tanzania criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of life imprisonment.


Zambia criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of life imprisonment.


Zimbabwe criminalises same-sex sexual activity between men. Sentences include a maximum penalty of one year imprisonment and a fine.

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