(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
In Malawi, consensual adult same-sex sexual conduct was originally criminalized under Sections 153, 154 and 156 of the penal code.
Section 153 on ‘unnatural offences’ reads:
Any person who:
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; 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
Section 154 on ‘attempt to commit unnatural offences’ reads:
Any person who attempts to commit any of the offences specified in section 153 shall be guilty of a felony and shall be liable to imprisonment for seven years.
Section 156 on ‘Indecent practices between males’ reads:
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.
These penal laws were inherited from British colonial laws when Malawi was declared as a British protectorate. The penal code was initially enacted in 1930 under the British colonial administration and adopted as part of Malawian laws upon attaining independence in 1964.
In 2010 parliament amended the penal code to extend criminalization of same-sex conduct with a new section 137A on ‘indecent practices between women’ which read 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..
In November 2012, Justice Minister Ralph Kasambara issued a moratorium on laws criminalizing same-sex conduct until they could be debated in Parliament, after concerns were raised that such laws may subsequently be ‘found unconstitutional.’ However, he later retracted his remarks. Since then, Malawi government has reiterated that the moratorium still stands although several high-profile arrests have occurred, most notable being the arrest of Kelvin Gonani and Cuthbert Kulemela in December 2016.
The bill of rights under Chapter IV of Malawi’s constitution prohibits any form of discrimination and guarantees equal and effective protection against discrimination of any kind. The constitution also guarantees protection of numerous human rights and freedoms such as life (article 16), personal liberty (article 18), dignity (article 19(1)), protection from torture (article 19(3)), and personal privacy (article 21(1)). Prominent Malawian scholars have argued that it is unreasonable to assume that the human rights protections in Malawi’s constitution give exception to protections based on sexual orientation or gender identity. Malawi has ratified a number of international and regional human rights treaties which have been read not to exclude human rights protections based on sexual orientation or gender identity.
So far the Malawian courts have not decided any cases about asylum applications based on sexual orientation or gender identity. However, in 2017, the government gave asylum to two individuals who had cited in their application persecution based on sexual orientation and gender identity.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
In their 2016 Country Reports on Human Rights Practices, the U.S. State Department noted that argues that in Malawi, ‘are denied by law and practice basic civil, political, social, and economic rights’. They raised concern about the continued punishment of people based on same-sex sexual activities.
A report by the Centre for the Development of People (CEDEP) and Centre for Human Rights and Rehabilitation (CHRR) on violence and discrimination based on real or perceived sexual orientation and gender identity in Malawi, issued in 2016, has shown that people in Malawi continue to suffer horrific violations including violent attacks, denial of access to health services, social stigma, and unsolicited revelation of individuals’ sexual identity.
An Afrobarometer survey conducted in 2014 has shown that over 90% of Malawians are opposed to having a homosexual as a neighbor. This suggests an over whelming negative attitude towards homosexuality in Malawi.
The Malawian government is viewed as being caught between trying to appease Western donors, upon whose aid the Malawian economy heavily depends, and responding to conservative anti-homosexuality lobbies within Malawi. The Justice Minister redacted claims that there had been a moratorium on LGBTI-related crimes within a week of the announcement under pressure from both the Malawi Law Society – who accused the government of bowing to Western pressure – and the Malawi Council of Churches who remains committed to a staunch belief that homosexuality should remain criminalised because it contradicts Christian and African values.
The divided opinion about same-sex conduct has resulted in calls for a national referendum on whether ‘homosexuality must be legal or not’. In 2015, the president spoke on the national television that his government would resort to calling for a referendum to give the public an opportunity to decide. The referendum never took place. However, in November 2016 the Ministry of Justice requested the Malawi Human Rights Commission to do a national inquiry to inform the government whether to decriminalize anti-gay laws. However, the inquiry has not taken place as at February 2018 due to lack of consensus on the process. In response to the 2012 moratorium, Human Rights Watch expressed their concern that anti-LGBTI legislation – even if unenforced – has significant consequences upon LGBTI communities who often face ‘blackmail, restricted access to health services, and lack of access to justice.’ Indeed, in 2009 Mary Shawa, the Secretary for Nutrition, HIV and AIDS, publicly noted that Malawi’s inability to fight HIV/AIDS was in part due to a lack of recognition and services for the homosexual population, among which the HIV prevalence rate is thought to be 25%. Research conducted by the Malawian NGO Centre for Development of People (CEDEP) in collaboration with several American Universities, revealed that ‘approximately 34 percent of gay men in the country had been blackmailed or denied services such as housing or healthcare due to their sexual orientation. Additionally, 8% of those surveyed said they had been beaten by police or other security forces due to their sexual orientation’.
In 2009, Steven Monjeza and his partner Tiwonge Chimbalanga were convicted of ‘unnatural offences’ and ‘gross indecency’ under Sections 153 and 156 of the Penal Code after they were married in a traditional ceremony. The magistrate in the case denied them bail on the premise that the ‘public out there is angry with them’ and they would be put at danger if bail was allowed. They were each sentenced to the maximum of 14 years in prison with hard labour, after the judge noted; ‘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.’ Many international organisations including the then UN Secretary Mr Ban Ki Moon lobbied the President of Malawi to intervene in the case, arguing that the case was an affront to the human rights of all Malawians. They urged him to ensure that charges were dropped and that Malawi ‘uphold constitutional principles of equality, privacy and dignity’. The couple were later pardoned and Chimbalanga received refugee status in South Africa.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
CEDEP – Centre for the Development of People
Centre for the Development of People (CEDEP) is a registered human rights organisation under the Trustees Incorporation Act of 1962. The organization was established in order to address the needs and challenges of minority groups in Malawi in the context of human rights, health and social development. Such minority groups are LGBT people, Prisoners, Sex workers, Street Children and any other such minority groups whose rights are often neglected.
The main goal of CEDEP is to create a legally and socially accepting environment where minority groups have an improved livelihood. The organization objectives are; to advance the human rights of minority groups through advocacy and lobbying, to promote human rights and health of minority groups through civic education, training, capacity building, networking and research, and provide support services for the improvement of the welfare of minority groups in accordance with their needs.
Centre for Human Rights and Rehabilitation (CHRR)
Nyasa Rainbow Alliance (NRA)
The Nyasa Rainbow (NRA) is an LGBTI-led organisation established in 2014. Its activities have for some time been supported by the community itself. The Alliance was established after realising the implementation gaps within the existing LGBTI organisation landscape and their scope. NRA derived its strength from a group of LGBTI persons who came together to support the LGBTI community drawing from personal experiences including challenges of living as an LGBTI community.
Nyasa Rainbow Alliance was inspired by peer educators living in Southern Region of Malawi who strived to address challenges faced by the LGBTI community including human rights violations, inaccessibility of health services, stigma and discrimination from the community.
COUNTRY OF ORIGIN SPECIALISTS
Kim Yi Dionne
Kim Yi Dionne is a professor of government at Smith College, where she teaches courses on African politics. She has a PhD in Political Science from the University of California Los Angeles (UCLA). Her research covers a range of topics, including elections and protests, public opinion, HIV/AIDS interventions, and the politics surrounding sexual orientation and gender identity in Africa. She was a Fulbright Fellow to Malawi from 2008-2009.
Alan MSOSA is a Malawian and has a PhD in Human Rights from the University of Essex in the United Kingdom. He is a postdoctoral researcher at the University of York where he is also a member of the International Global Development Centre. He is also an affiliate of the University of Bergen Centre on Law and Social Transformation. He is also a member of the Centre for Human Rights Organisation (CHRR), a leading human rights organisation with observer status with the African Commission on Human and Peoples’ Rights. His expertise include investigating cases of human rights violations and administrative injustices, drafting expert opinions, programme management and research.
Areas of Expertise: human rights, HIV and AIDS, health.
Last Updated November 2021