LGBT rights in Malawi

Legality of same-sex sexual activity

Statutes

The Malawi Penal Code provides:

Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, shall be guilty of an offence and shall be liable to imprisonment for five years.

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.

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.

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 [under Section 28 of the Penal Code].

Enforcement history

On 21 December 2009, two men, Steven Monjeza and Tiwonge Chimbalanga, were arrested in Blantyre after announcing their engagement. They were convicted on 20 May 2010 under sections 153 and 156 of the Penal Code for "unnatural offences" and "indecent practices between males," and sentenced to 14 years’ imprisonment with hard labour. They were pardoned on 29 May 2010 by President Bingu wa Mutharika following international pressure and a personal appeal from United Nations Secretary-General Ban Ki-moon.

The news media reported in December 2011 that the sodomy statutes had been sent to the Malawi Law Commission for review, quoting justice minister Ephraim Chiume. However, a high-level delegation of legal experts from the International Bar Association Human Rights Institute found in January 2012 that the commission had not been specifically asked to review these statutes.

On 18 May 2012, President Joyce Banda announced her intention to repeal the laws criminalizing same-sex sexual activity.

On 5 November 2012, Attorney General and Justice Minister Ralph Kasambara announced a suspension of arrests and prosecutions under sections 153–156, stating: "There is a moratorium on all such laws, meaning that police will not arrest or prosecute anyone based on these laws," pending review by the National Assembly. On 6 November, Human Rights Watch welcomed the move as “courageous.”

Three days later, Kasambara appeared to reverse himself, denying that he had announced decriminalization and rejecting suggestions of legalised same-sex marriage. The Malawi Law Society and religious leaders opposed the suspension, calling it unconstitutional.

The moratorium was reaffirmed in July 2014 and again on 18 December 2015, when Justice Minister Samuel Tembenu instructed police not to arrest individuals for homosexuality.

On 7 December 2015, two men, Cuthbert Kulemela (19) and Kelvin Gonani (39), were arrested in Lilongwe for alleged sodomy under section 153. Reports stated they were discovered having consensual sex after local residents alerted police. Charges were subsequently dropped, and Justice Minister Tembenu reaffirmed the moratorium.

Recognition of same-sex unions

On 17 April 2015, the Marriage, Divorce and Family Relations Law came into force and banned all same-sex marriages and unions. While the law was praised for raising the minimum age of heterosexual marriages from 16 to 18, it was at the same time condemned for the exclusion of homosexual couples and for its language stating that one's gender is assigned at birth. The new law does not allow people who have undergone gender reassignment surgery to marry someone of that person's prior gender and also draws comparisons of gay sex to rape and sexual harassment.

Discrimination protections

There is no broad legal protection against discrimination based on sexual orientation or gender identity. However, since 2019, there is limited protection against hate speech based on gender identity and sexual preference.

The Communications (Broadcasting) Regulations 2019, defines "hate messages" as a "speech intended to degrade, intimidate or incite violence or prejudicial action against a person or group of people base on their race, gender, ethnicity, nationality, religion, gender identity, disability, language ability, moral or policital views, socio-economic class, occupation or physical appearance, mental capacity and any other distinction that might be considered by some as a libility." In addition:

Section 22 (1-d) states that a licensee shall not broadcast content that "is likely to incite or perpetuate hatred or vilify any person or section of the society on account of race, ethnicity, nationality, gender, sexual preference, age, disability, religion, culture or any other status of that person or section of the society."

Section 30(2-d) states a licensee, or its employee, shall not broadcast live any matter which "is likely to incite or perpetuate hatred or vilify any person or section of the society on account of race, ethnicity, nationality, gender, sexual preference, age, disability, religion, culture or any other status of that person or section of the society."

Living conditions

In July 2005, Reverend Dr. Nick Henderson was elected by the Lake Malawi diocese to serve as its bishop, but conservative members challenged the election. In December, the Anglican Church of Central Africa (ACCA) overturned the election. According to Archbishop Bernard Malango, who led the ACCA, "He has actively demonstrated that he was not of sound faith—that's what the Court of Confirmation decided." The bishops concluded that Henderson's involvement with the Modern Church, which supported LGBTQ rights, made him "unsuitable". A four-year struggle by laity and priests to overturn the ACCA's decision then ensued. The matter was eventually settled when Henderson asked his supporters to agree to the election of the Venerable Francis Kaulanda as bishop. Kaulanda had been one of Henderson's sabbatical study priests.

In September 2009, Mary Shawa, secretary for nutrition, HIV, and AIDS in the president's office, argued that Malawi must give gay people access to HIV and AIDS services. She said, "There is a need to incorporate a human rights approach in the delivery of HIV and AIDS services to such risk groups like men who have sexual intercourse with men if we have to fight AIDS."

In February 2010, Peter Sawali was arrested for putting up posters on a busy road in Blantyre that read "Gay rights are human rights". He was charged with conduct likely to cause a breach of the peace. He was subsequently convicted and sentenced to clean the premises of Blantyre Magistrates Court for 60 days.

In April 2010, President Bingu wa Mutharika condemned acts of homosexuality. He said, "Malawians are even aping cultures they do not understand. They are saying a man should marry a fellow man. This is evil and bad before the eyes of God. There are certain things we Malawians just do not do."

In July 2011, Undule Mwakasungula, the chairperson of the Human Rights Consultative Committee, and Gift Trapence, executive director of the Centre for Development of People, reportedly went into hiding after being threatened with arrest for treason. President Mutharika was quoted as saying, "I will ... hunt you in your homes. You will not hide, I will smoke you out, muziwanso. You should go back to your fathers and mothers from the West, who have sent you." Two months earlier, George Chaponda, Malawi's Justice and Constitutional Affairs Minister, claimed that recent withdrawals of foreign aid by various countries were the fault of Mwakasungula and Trapence. He said, "The country is suffering because of the conduct of some leaders of the civil society. Those people are not patriotic. Some donors have withdrawn their aid and everybody is suffering."

Criminal conviction and subsequent pardon of Malawian couple

In late December 2009, a trans woman, Tiwonge Chimbalanga, and a man, Steven Monjeza, were arrested after holding a traditional "chinkhoswe" (engagement ceremony) and then jailed separately in Blantyre. Magistrate Nyakwawa Usiwausiwa subsequently denied bail, allegedly for their own protection. "The public out there is angry with them."

In a ruling made public on 22 February 2010, High Court Chief Justice Lovemore G. Munlo denied the defendants' motion for a Constitutional Court to be convened to rule on the constitutionality of Sections 153 and 156 of the Penal Code. He wrote, "From the totality of the documents that are before me, I have come to the conclusion that the criminal proceedings that are before the Chief Resident Magistrate Court do not expressly and substantially relate to or concern the interpretation or application of the Constitution."

On 18 May 2010, the defendants were found guilty of having committed "unnatural offenses" and "indecent practices between males" under the Malawi Penal Code. Magistrate Usiwausiwa imposed the maximum penalty of 14 years in prison with hard labour. He said, "I will give you a scaring sentence so that the public be protected from people like you so that we are not tempted to emulate this horrendous example. We are sitting here to represent the Malawi society, which I do not believe is ready at this point in time to see its sons getting married to other sons or conducting engagement ceremonies."

The trial and sentences were condemned by regional human rights organizations including AIDS and Rights Alliance for Southern Africa, the Southern Africa Litigation Centre, the Centre for the Development of People, and the Centre for Human Rights and Rehabilitation. In addition, international human rights organizations such as Amnesty International and the International Gay and Lesbian Human Rights Commission reacted with condemnation, as did donor entities and governments such as the United States, the United Kingdom, Germany, Norway, the African Development Bank, the European Union, and the World Bank.

However, the Malawi Council of Churches (a grouping of up to 22 Protestant churches) advised the Malawi government to maintain the laws that criminalize same-sex sexual acts and asked international organizations to "respect Malawi's cultural and religious values and refrain from using aid as a means of forcing the country to legalise sinful acts like homosexuality in the name of human rights".

Subsequent arrests

On 7 December 2015, two men Cuthbert Kulemela, 19, and Kelvin Gonani, 39 were arrested while having sex for alleged homosexual activity. However, on 15 December 2015, the government of Malawi announced that charges have been dropped against them. In a statement, Justice Minister Samuel Tembenu reaffirmed Malawi's moratorium on arrests and prosecutions for alleged violations of the country's anti-gay law.

In April 2018, police arrested a man named Limbane Sibande in Mzuzu on suspicion of being gay and charged him with indecency.

The arrest was reportedly made for an alleged violation of Section 156 of the Penal Code (indecent practices between males) rather than under the country's main anti-gay law, Section 153 (carnal knowledge of any person against the order of nature).

International pressure

Reports and recommendations under the International Covenant on Civil and Political Rights

Malawi became a party to the International Covenant on Civil and Political Rights on 22 December 1993. Under Article 40 of the Covenant, Malawi was required to submit its initial report by 21 March 1995. Malawi failed to honour its reporting obligations for more than 17 years, despite numerous reminders. The United Nations Human Rights Committee (UNHRC) in June 2012 made "provisional concluding observations" in the absence of Malawi's report.

The Committee is concerned about allegations regarding reported cases of violence and discrimination against people engaging in same-sex relationships in ...[Malawi], as well as allegations of incitement to violence against them by some public officials and authorities, despite section 20 of the Constitution, which guarantees equality of persons and prohibits discrimination. The Committee is also concerned about sections 153 and 156 of the Penal Code, which criminalize homosexuality, and about the new amendment to the Penal Code, section 137A, which also criminalizes same-sex relationships between women (arts. 2, 3 and 26). [Malawi] ... should amend its Penal Code to decriminalize homosexuality between adults of both sexes, and conduct awareness-raising campaigns to educate the population on this issue. [Malawi] ... should also take appropriate steps to protect persons engaged in same-sex consensual relationships against discrimination and violence on the basis of their sexual orientation, and ensure that public officials and public authorities refrain from using language that may encourage hatred and violence against them. In this regard, [Malawi] ... should prosecute persons allegedly responsible for such acts of discrimination and violence, and punish those who are convicted.

In an oral response provided to the UNHRC, the Malawi delegation said,

The Government of Malawi has referred to the Law Commission for review of all legislation referred to above. The review process will be thorough and consultative. The Malawi Law Commission is an independent body and its recommendations are seriously considered by the Government of Malawi.

In its long-overdue initial report to the UNHRC dated 13 July 2012, Malawi stated,

2010–2011 Universal Periodic Review

The United Nations Human Rights Council (UNHRC) in March 2011 completed a Universal Periodic Review of the human rights situation in Malawi.

During the review, Sweden,

expressed concerns at the existing discrimination based on sexual orientation. Sweden recalled Malawi's ratification of the International Covenant on Civil and Political Rights as well as the basic principle of non-discrimination, which also

underpinned the African Charter on Human and Peoples' Rights and the Universal Declaration of Human Rights.

Sweden recommended that Malawi,

Fulfill its obligations under international human rights law and review its national legislation, as a matter of urgency, to decriminalize same-sex relationships and prohibit discrimination on any grounds, including sexual orientation.

Mexico recommended that Malawi,

Completely overhaul the legal system to ensure the compliance of the Constitution and all other domestic legislation with international human rights obligations and standards and, in this regard, amend and/or derogate all legal provisions, including customary law, which result in discrimination, especially on the basis of sexual orientation.

France recommended that Malawi,

Put in place a moratorium on convictions for same-sex relationships and, over time, decriminalize homosexuality in order to fully apply the principle of equality and non-discrimination among all persons.

Canada, Germany, Australia, the United Kingdom, Italy, Austria, Ireland, and Luxembourg generally recommended that Malawi reform its Penal Code to end discrimination, hostility, and violence against people based on their sexual orientation or gender identity.