Malawi

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 colonialism, 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 prosecutions under the criminalising provisions was officially declared in 2014, however LGBT people are occasionally subjected to arbitrary arrest, formal charges, and in some cases prosecution. 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.

2024 

On 28 June, the High Court handed down its judgment in the case of Akster and Another v Director of Public Prosecutions and Another. The matter concerned the referral to the Constitutional Court of two criminal cases in which the validity of the ‘unnatural offences’ provisions of Malawi’s Penal Code, which criminalise consensual same-sex sexual conduct among other acts, had been raised as an issue (‘the challenged provisions’). One of the cases referred was that of Jana Gonani, a trans woman convicted of various offences, including permitting a male person to have sexual intercourse with her (see below). The High Court held that the challenged provisions were constitutional and did not breach any of the fundamental rights relied upon by the claimants, including the rights to privacy, human dignity, liberty, and equal protection before the law. The court found that the provisions prohibit all people from engaging in certain sexual conduct regardless of whether they are engaging with a member of the opposite sex or not and were therefore not discriminatory.

2022

In September, the Supreme Court of Appeal ruled that Nyasa Rainbow Alliance could appeal against the 2017 decision to deny its registration as an NGO on the basis that it advocated for illegal conduct. The case remains pending.

2015

The government apparently stated that there would be a referendum on whether to decriminalise same-sex sexual activity. Given the hostility of public attitudes towards LGBT people, which would result in almost certain rejection of decriminalisation, LGBT people were not supportive of the proposal. The referendum did not materialise.

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.

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.

2012

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.

2011

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

2023

The US Department of State reported that the government did not actively enforce the law, but that arrests and prosecutions occasionally occurred.

ILGA World’s Identities Under Arrest report documented a number of cases of LGBT people being arrested and detained, however most of these arrests were arbitrary and did not result in formal prosecution under anti-homosexuality laws. However, two cases in 2018 and 2020 resulted in ‘gross indecency’ charges.

2021

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 against the conviction, which was ultimately rejected in 2024 (see above).

2020

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.

2015

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.

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. A number of examples of arrest before this are presented in the 2012 UK Country of Origin Report.

2011

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.

2025

On 7 April, the Centre for the Development of People, REDRESS and nine Malawian human rights organisations made a joint submission to the Human Rights Council as part of Malawi’s Universal Periodic Review (UPR). In their submission, they reported that LGBT individuals face routine violence and discrimination in almost all aspects of their daily lives, including social stigma, lack of access to essential services, and family and community violence. Police engage in acts of torture, extortion, and harassment against LGBT people, including reports of transgender women being stripped to identify their genitalia, so-called corrective rape of lesbian women, and physical assaults and corporal punishment of transgender and gay men. The submission further noted that the High Court judgment of 28 June 2024 in the case of Jana Gonani (see above) appears to have led to a significant increase in discrimination against the LGBT community, including hate crimes, social exclusion and psychological harassment, and religious leaders held a protest against same-sex marriage.

2024

A report published by Amnesty International noted that the right to health for LGBT people is now more restricted following the High Court case, with nurses reportedly exhibiting judgemental attitudes and discriminatory behaviour. The report concluded that there is systemic discrimination and violence against LGBT people in Malawi, with selective application of laws against them and politicians and religious authorities leading anti-LGBT demonstrations, and reports of forced medical ‘exams’.

2023

According to the US Department of State, the Center for the Development of People recorded numerous instances of abused based on real or perceived LGBT status. These numbers have remained consistent in recent years (16 instances in 2022 and 2021, and 15 instances in 2020). There were no investigations, as victims did not want their identities revealed, and feared unequal treatment by police. A report by Nyasa Rainbow Alliance found that LGBT people faced routine discrimination in almost all aspects of their daily lives, including in access to services.

In July, religious groups marched in cities across Malawi to protest against same-sex marriage.

2021

A submission to the UN Human Rights Committee by Human Rights Watch noted that LGBT people experience “routine violence and discrimination in almost all aspects of their daily lives”, including arbitrary arrest, detention, and assault by police. Private individuals also attack LGBT people with impunity, and health providers frequently discriminate against them, creating barriers to HIV and other services.

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.

2019

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). 34% of LGBT people reported having been denied healthcare because of their SOGIE. These numbers were consistently higher for gender minorities.

2018

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, including cases in 2017 where three trans people were arrested, detained, and beaten on accusation of being gay. They were only released after paying a bribe.

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