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, 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.

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. 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.

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.

2013 

In November, the Malawi High Court announced its plan to review the constitutionality of the country’s criminalising 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, the Centre for Human Rights and Rehabilitation, 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.

2011

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

2024

Jana Gonani’s 2021 appeal was rejected in June in a High Court judgment (see Law and Legal Developments, above).

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.

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. 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.

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 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.

2023

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.

2020

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.

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).

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.

2016

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.

2014

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.

2021

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.

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