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Homosexuality, Sodomy Legislation/Cases/References
1.

National

Consensual sex between same-sex couples is unlawful.

The Penal Code Cap. 7:01 provides -

Section 137A. Indecent practices between females [R1.8]

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 late January 2011, President Bingu Wa Mutharika assented to the above amendment to the Penal Code [R1.8].

Section 153. Unnatural offences [L1.7]

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, with or without corporal punishment.

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.

Section 155. Indecent assault of boys under fourteen

Any person who unlawfully and indecently assaults a boy under the age of fourteen years shall be guilty of a felony and shall be liable to imprisonment for seven years, with or without corporal punishment.

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.


On 19 December 2015, Minister of Justice Samuel Tembenu was reported to have said that Malawian Police had been ordered to drop charges of sodomy against 19-year-old Cuthbert Kulemeka and Kelvin Gonani (quaere Gomani) (37) arrested in the capital Lilongwe. The government has suspended laws against same-sex relationships pending a decision on whether to repeal the legislation and 'imposed a moratorium' not to arrest or prosecute homosexuals [R1.6]. However, see 2. Courts & Tribunals below.

On 15 July 2014, Secretary for Justice and Solicitor-General Dr Janet Chijaya-Banda was reported to have told the United Nations Human Rights Committee in Geneva that Malawi had suspended arresting people for homosexuality until its anti-gay laws are reviewed [R1.5].

On 08 November 2012, Justice minister Ralph Kasambara denied any decision to suspend Penal Code laws banning same-sex relationships and that the laws would still be enforced [R1.4].

On 05 November 2012, Justice Minister and Attorney General Ralph Kasambara announced that “There is a moratorium on all such laws (banning same-sex relationships), meaning that police will not arrest or prosecute anyone based on these laws … until the time that parliament makes a decision” [R1.3].

On 26 September 2012, Malawian President Joyce Banda said that her country is not ready to decriminalize homosexuality despite pledging to do so on taking office [R1.2].

On 18 May 2012, newly appointed President Joyce Banda, said she will repeal her country's law which bans homosexual acts, though obtaining Parliamentary approval of the repeal will likely prove challenging [R1.1].

2.

Courts & Tribunals

On 22 December 2016, Magistrate Arthur Mtalimanja in the Lilongwe Magistrates Court reportedly convicted and fined Kelvin Gomani (quaere Gonani) and Davie Lok K50, 000 each for outraging public decency after they allegedly were caught having sex in a car park on 4 December, 2016 and charged with offences relating to idle and disorderly persons in public place contrary to Sections 180 to 184 of the Penal Code of the Laws of Malawi [R2.9].

On 09 February 2016, Judge Dingiswayo Madise in the High Court in Mzuzu in case number 17 of 2016 granted an ex-parte application by Christopher Kammasamba, Reverend Patrick Banda and Pastor Tusalifye Mbeye for an injunction ordering the Malawi Police Service, the Director of Public Prosecutions to continue arresting and prosecuting gays and lesbians who commit homosexual offences in Malawi [R2.8].

On 29 May 2010, President and African Union Chairperson Bingu wa Mutharika ordered the unconditional pardon and immediate release from prison of Tionge Chimbalanga and Steven Monjeza [R2.7].

On 20 May 2010, magistrate Nyakwawa Usiwa imposed the maximum 14-year jail sentence with hard labour on Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, following their conviction of unnatural acts and gross indecency [C2.6], [R2.5].

Previously:

On 18 May 2010, Blantyre Chief Resident Magistrate Nyakwawa Usiwa convicted Steven Monjeza, 26, and Tiwonge Chimbalanga, 20 of unnatural acts and gross indecency. The couple could be imprisoned for up to 14 years [R2.4].

On 22 March 2010, Magistrate Nyakwawa Usiwausiwa adjourned the case against Steven Monjeza, 26, and Tiwonge Chimbalanga, 20 until 03 April, after ruling they had a case to answer and giving them the chance to defend the case [R2.3].

On 22 February 2010, Chief Justice Lovemore Munlo rejected a request from Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, a gay couple charged with buggery and indecency for the Constitutional Court to review their case and magistrates were expected to announce their verdict on March 22 [R2.2].

On 11January 2010, Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, a gay couple arrested and charged with three counts of "gross indecency" after holding a traditional engagement ceremony, asked the Constitutional Court to hear their case, arguing that their detention violated their legally protected rights [R2.1].

R1.8 International Commission of Jurists: Sex Between Women Now a Crime in Malawi PDF 142.01kb, 08 FEB 11
L1.7 MalawiLII: Penal Code Chapter 7:01 PDF 672.46kb, 07 MAR 12
R1.6 NyasaTimes: Malawi drop charges against gay men: Anti-homosexual laws suspended, says Justice Minister 19 DEC 15
R1.5 Towelroad: Malawi Solicitor General Says Country Has Suspended Anti-Gay Laws 15 JUL 14
R1.4 GayStarNews: Churches force Malawi to backtrack on suspending anti-gay laws 08 NOV 12
R1.3 Times of India: Malawi suspends laws banning same-sex relationships 06 NOV 12
R1.2 GayStarNews: Malawi backs down on legalizing gay acts 29 SEP 12
R1.1 GayStarNews: Malawi will lift ban on gay sex, promises president 18 MAY 12
2. Courts & Tribunals
R2.9 NyasaTimes: Malawi court convict gay couple over sex act in public place 22 DEC 16
R2.8 NyasaTimes: Malawi court rejects moratorium on gays: Police can arrest homosexuals 10 FEB 16
R2.7 IGLHRC: IGLHRC and CEDEP Commend Presidential Pardon in Malawi 29 MAY 10
C2.6 Judgment: Republic v. Soko & Katchepa No 359 of 2009 PDF 1.67mb, 20 MAY 10
R2.5 365Gay.com: Malawi gay couple receive maximum 14-year sentence 20 MAY 10
R2.4 365Gay.com: Malawi: Judge convicts gay couple 18 MAY 10
R2.3 IGLHRC: Discrimination Continues as Malawian Court Moves Forward to Prosecute Couple 22 MAR 10
R2.2 Reuters UK: Malawi court dismisses gay couple's appeal case 23 FEB 10
R2.1 Independent Online: Gay couple appeal to higher court 12 JAN 09

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Marriage Legislation/Cases/References
1.

National

On 17 April 2015, it was reported that President Peter Mutharika signed the new Marriage, Divorce and Family Relations Law, expected to take effect on Friday. The law raises the minimum age for marriage from 16 to 18 and defines all marriages, unions and cohabitation arrangements as being between a man and a woman -- and excludes gay, lesbian, bisexual and transgender people from legal protections. It also defines a person's sex or gender as the one assigned at birth, legally rejecting the gender identity of transgender and intersex persons [R1.5].

On 17 February 2015, it was reported that lawmakers unanimously voted in favor of a new Marriage Divorce and Family Relations Bill with the definition "Marriage is two people of the opposite sex who are in or want to enter into marriage". The Bill is expected to be signed by President Peter Mutharika [R1.4].

In April 2011, a Malawi government official said the US had decided to approve the payment of a $350M grant after holding negotiations, despite laws preventing gay marriages and allowing the government to ban newspapers publishing material deemed bad for the public remaining in place [R1.3].

On 16 March 2011, Finance Minister Ken Kandodo told Reuters Africa that Malawi's donors [?] were withholding more than $400 million in aid in protest at a law preventing gay marriages and another that lets the government ban newspapers publishing material deemed bad for the public [R1.2].

In December 2009, Tiwonge Chimbalanga and Steven Monjeza, a gay couple who held a traditional engagement ceremony were arrested and charged with public indecency [R1.1].

R1.5 InternationalBusinessTimes: Malawi Gay Rights: New Marriage Law Further Criminalizes LGBT Relationships And Identities, Group Says 17 APR 15
R1.4 NyasaTimes: Malawi marriage billspurn sma-esex relations 17 FEB 15
R1.3 Reuters Africa: US approves delayed $350 mln grant for Malawi 08 APR 11
R1.2 Reuters Africa: Donors freeze $400 million aid to Malawi: finance minister 16 MAR 11
R1.1 PinkNews.co.uk: Gay Malawi couple charged with indecency over ceremony 29 DEC 09
Parenting, Adoption, Fostering Legislation/Cases/References
1.

National

In October 2011, a Special Law Commission report put homosexuals among persons of unsound mind within the meaning of Mental Health Act, persons convicted of any offense set out in the schedule and a person who has been declared unsuitable or prohibited by a court of competent jurisdiction from working with children, as those prohibited to adopt [R1.1].

R1.1 Africa News: Malawi: Homosexuals barred from adopting children 12 OCT 11

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