Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
  • Criminalises the gender identity/expression of trans people
Commonwealth member state
Penal Code, Section 153 Unnatural Offences

Section 153 prohibits “carnal knowledge” against the “order of nature” with a penalty of fourteen years imprisonment, with or without corporal punishment. This provision is applicable to both men and women.1

Penal Code, Section 154 Attempt to Commit Unnatural Offences

Section 154 prohibits attempts to commit the offences criminalised under Section 153 with a penalty of seven years imprisonment, with or without corporal punishment.2

Penal Code, Section 156 Indecent Practices Between Males

Section 156 criminalises acts of “gross indecency” between men, or the procurement or attempted procurement thereof, with a penalty of five years imprisonment, with or without corporal punishment.3

Penal Code, Section 137A Indecent Practices Between Females

The new Section 137A criminalises acts of “gross indecency” between women with a penalty of five years imprisonment.4

Penal Code, Section 180(g) Idle and Disorderly Persons

Section 180(g) of the Penal Code criminalises men who wear their hair beyond a certain length, with a penalty of three months imprisonment, and for repeat offenders, six months imprisonment and a fine. This provision is seen as criminalising gender expression.5

Enforcement

2014

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 2012 are presented in the 2012 UK Country of Origin Report.

2011

In May, Steven Monjeza and 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.

Statements by Public Figures

2014

In May, leader of the Malawi Congress Party, Dr. Lazarus Chakwera, made a link between homosexuality and child abuse, claiming that homosexuality is a form of “child exploitation”.

In February, Dr. Salmin Omar Idruss, Secretary-General of the Muslim Association of Malawi, called for the death penalty to be introduced: “Even animals like goats don’t do this, what more with human beings like us who were blessed with wisdom by the Almighty God? The offenders need to be handed the death penalty as a way of making sure that the issue is curbed.”

The offenders need to be handed the death penalty as a way of making sure that the issue is curbed.

Dr. Salmin Omar Idruss, Muslim Association of Malawi

2012

In November, after criticism by church groups and the Law Society, Justice Minister Ralph Kasambara, denied earlier reports saying that a moratorium had been put in place, preventing the arrest of anyone under the country’s anti-gay laws.

In May, Kamuzu Chibambo, head of the Malawian opposition party, said decriminalising homosexuality would be a “grave mistake” and urged parliament “to resist any intention directly or indirectly to legalize same-sex marriages.

On assuming office, then President Joyce Banda announced at her first State of the Union address 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.

While in the United States for a speech to the United Nations, Banda reportedly stated:

Anyone who has listened to the debate in Malawi realizes that Malawians are not ready to deal with that right now. I as a leader have no right to influence how people feel… Where Malawi is and most African countries are, is maybe where America or the U.K. were about 100 years ago. The best thing the world can do is to allow each country to take its course, to allow each country to have that debate freely without the pressure of being pushed. We have seen countries where homosexuals have been killed. Why? Because, in my view, the country – the nation – wasn’t ready.”

Persecution and Discrimination

2017

The US Department of State Human Rights Report for Malawi states that 2016 was the last year that the data were available regarding the “Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity”. In that year, the Centre for the Development of People documented 21 instances of abuse based on sexual orientation and gender identity. The nature of the abuses fell into three broad categories: stigma, harassment, and violence.

2015

In February, Civil Society Organisations pressed President Peter Mutharika, who was elected in May 2014, to declare his stand on LGBT rights. In September 2014, the Centre for Human Rights and Rehabilitation (CHRR) and the Centre for Development of People (CEDEP) had issued an assessment of President Mutharika’s performance in his first 100 days in office from a human rights perspective. The report raised concern about the administrations silence on sexual minority rights.

2014

The US Department of State Human Rights Report for 2014 documented that public discussion of LGBT rights increased during the year. In October, the Center for Human Rights and Rehabilitation and the Center for 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, the Center reported that in July 2013 a gay man named Vincent was beaten by a mob and subsequently arrested and assaulted by police.

2011

Although there are few reported examples of persecution, one report did stress the problem of blackmail of sexual minorities.6

Legislative News

2015

In September, President Peter Mutharika reportedly stated that Malawians will be able to decide through a referendum on whether legalise same-sex relationships.

In June, the UNAIDS and Lancet Commission report, “Defeating AIDS – advancing global health”, recommended that new paths be forged to uphold human rights and address criminalisation, stigma, and discrimination using practical approaches to change laws, policies, and public attitudes that violate human rights. The Commission was co-chaired by former President, Joyce Banda.

In April, the Marriage, Divorce and Family Relations Act 2015 became law following the President’s assent. While the new law makes important strides to prevent child marriage, it also includes provisions that discriminate against LGBT persons. Although Malawi’s Constitution does not expressly preclude marriage for same-sex couples, the Marriage Act limits marriage to “persons of the opposite sex.” The new law also reinforces the prohibition of “unnatural offenses” under Malawi’s Penal Code by listing a conviction for such an offence as acceptable evidence of irretrievable marriage breakdown.

During its second UPR cycle in February, the stakeholder report stated that the relevant provisions of the Penal Code that criminalise consensual sexual conduct between adults have been referred to the Law Commission for review, but that the Law Commission was yet to take any significant action towards repealing those provisions. Malawi’s national report, which was submitted as part of the UPR process, made no mention of decriminalisation or the rights of LGBT persons.

2014

In its concluding observations in August, the Human Rights Committee raised concerns about the independence of the Malawi Human Rights Commission and the rights of LGBT persons. In particular, it was concerned about the reluctance of the Commission to engage in issues related to the rights of LGBTI persons. The Committee also raised concern that consensual same-sex sexual activity among consenting adults was still criminalised. There were also reports of cases of violence against LGBT persons and that, owing to the stigma, these persons do not enjoy effective access to health services. The Committee recommended that the Commission fully comply with its mandate and engage in all human rights issues, including those related to the rights of LGBT persons, and that Malawi review its legislation to explicitly include sexual orientation and gender identity among the prohibited grounds of discrimination and repeal the provisions that criminalise homosexuality and other consensual sexual activities among adults.

2013

In November, the Malawi High Court announced its plan to review the constitutionality of the country’s sodomy laws, having “exercis[ed] its own jurisdiction under the constitution and the Courts Act”. This review arises from confirmation cases involving three individuals who had been convicted in 2011 for sexual acts of a non-consensual nature. Those seeking to overturn the nation’s anti-gay laws include the Malawi Law Society, the Centre for Development of the People (Cedep), the Centre for Human Rights and Rehabilitation (CHRR), the University of Malawi’s Faculty of Law, and the Malawi Network of Religious Leaders living with or affected by HIV. The Attorney General’s office and Pastor Nick Chakwera are arguing in favour of retaining the law. The Attorney General raised a preliminary objection to the High Court’s constitutional review based on procedural grounds, which has delayed consideration of the substantive issues. The Attorney General’s objection is currently on appeal to the Court of Appeal. A hearing on the merits is stayed until the conclusion of the appeal.

In February, the National Assembly passed the Gender Equality Act. This legislation focused on discrimination against women and did not address other forms of discrimination.

2011

In its first UPR cycle, Malawi rejected recommendations to decriminalise homosexuality and all other laws, which lead to discrimination on the grounds of sexual orientation.

In January, Malawi amended the Penal Code to extend its potential reach to criminalise lesbian women.

Footnotes
1. Penal Code, Section 153 Unnatural Offences

“Any person who—

(a)  has carnal knowledge of any person against the order of nature; or

(c)  permits a male person to have carnal knowledge of him or her against the order of nature,

shall be guilty of a felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment.” Full text.

2. Penal Code, Section 154 Attempt to Commit Unnatural Offences

“Any person who attempts to commit any of the offences specified in the last preceding section shall be guilty of a felony and shall be liable to imprisonment for seven years, with or without corporal punishment.” Full text.

3. Penal Code, Section 156 Indecent Practices Between Males

“Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years, with or without corporal punishment.” Full text.

4. Penal Code, Section 137A Indecent Practices Between Females

“Any female person who, whether in public or private, commits any act of gross indecency with another female shall be guilty of an offence and liable to a prison term of five years.” Full text.

5. Penal Code, Section 180(g) Idle and Disorderly Persons

“The following persons—

(g) every male person who wears the hair of his head in such a fashion as, when he is standing upright, the main line of the bottom of the mass of hair (other than hair growing on his face or on the nape of his neck) lies below an imaginary line drawn horizontally around his head at the level of the mouth,

shall be deemed idle and disorderly persons, and shall be liable for the first offence to a fine of K20 and to imprisonment for three months and for a subsequent offence to a fine of K50 and to imprisonment for six months.” Full text.

6. Nowhere to Turn

Chibwezo, W., ‘Blackmail Among Gay People in Malawi’, in Thoreson, R., Cook, S., (eds), Nowhere to Turn, 2011.

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