Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in Malawi face legal challenges not experienced by non-LGBTQ residents. Both male and female expressions of same-sex sexual activity are illegal within the nation. The Penal Code prohibits "carnal knowledge against the order of nature", attempts to commit "carnal knowledge against the order of nature", and acts of "gross indecency". Homosexuality among men is punishable by up to 14 years in prison in the country, while homosexuality among women is also punishable by up to five years in prison. There are no broad legal protections for LGBTQ rights in the country.
Malawi is a highly conservative country. There is no recognition of same-sex unions in the country. Homosexual activities are also illegal in Malawi. The maximum punishment for homosexuality among men is 14 years of imprisonment in the country, while the maximum punishment for homosexuality among women is five years of imprisonment, though rarely enforced.
In late December 2009, a trans woman, Tiwonge Chimbalanga, and a man, Steven Monjeza, were arrested after holding a traditional "engagement" party. On 18 May 2010, they were found guilty of having committed "unnatural offenses" and "indecent practices between males". On 29 May 2010, then President Bingu wa Mutharika pardoned both individuals.
On 26 June 2021, the country's first ever pride parade was held in Lilongwe, organised by the Nyasa Rainbow Alliance, with the 50+ attendees delivering a petition to the city's officials demanding marriage equality and better access to healthcare for LGBTQ people despite the country's anti-LGBTQ laws.
Legality of same-sex sexual activity Statutes The Malawi Penal Code provides:
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.
On 9 February 2016, the High Court in Mzuzu granted an injunction sought by anti-gay pastors ordering the Malawi Police Service and Director of Public Prosecutions to resume arrests, pending review of the moratorium's legality. On 19 February 2016, the High Court formally annulled the moratorium, holding that the executive lacked constitutional authority to suspend laws passed by Parliament.
In April 2018, a man named Limbane Sibande was arrested in Mzuzu on suspicion of being gay and charged under section 156 for "indecent practices between males." According to human rights reports, this was considered a case of suspected consensual same-sex conduct. The outcome of the case is unclear, but it is not known to have resulted in a conviction.
In April 2020, Dutch national Jan Willem Akster, finance director of the Timotheos Foundation, was arrested and charged with nine counts of sexual abuse and sodomy involving bursary students and employees between 2018 and 2019. He denied wrongdoing, claiming some acts were consensual. His case was later joined to Jana Gonani's constitutional petition challenging the sodomy laws. On 28 June 2024, the Constitutional Court upheld the constitutionality of sections 153, 154 and 156, and his criminal trial in the Blantyre Chief Resident Magistrate's Court continues.
On 23 December 2021, a Magistrate's Court in Mangochi convicted trans woman Jana Gonani under section 153(c) for “unnatural offences” and sentenced her to eight years’ imprisonment.
The case of Dutch national Jan Willem Akster, who was facing criminal charges of sodomy and sexual abuse, was consolidated with that of Jana Gonani for a constitutional referral. On 28 June 2024 the High Court of Malawi, sitting as a constitutional court, upheld the constitutionality of sections 153, 154 and 156 of the Penal Code, confirming the validity of such convictions.
The High Court noted that the challenged provisions criminalise consensual same-sex sexual conduct among other acts but found that the law does not discriminate against homosexual persons because it prohibits all people from engaging in certain sexual conduct regardless of whether they are engaging with a member of the opposite sex or not.
The Court rejected the applicants’ claim that the laws were discriminatory, finding that they had failed to demonstrate that the provisions were applied in a way that specifically disadvantaged homosexual individuals.
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."
The U.S. Department of State's 2011 human rights report found that, An environment conducive to discrimination based on sexual orientation was created and maintained by senior government officials. On World Tourism Day in September , the tourism minister [Daniel Liwimbi] said it was not proper for citizens to engage in same-sex sexual activity as "very un-Malawian." The mistaken notion that western donor countries were withholding financial aid unless the country permits same sex marriages enhanced a homophobic environment. In October[,] the Malawi Council of Churches declared that the country needed aid, and millions of innocent citizens should not be penalized because same-sex sexual activity was outlawed.
In February 2014, the Muslim Association of Malawi (MAM) called for gay people to be condemned to death, saying "the offenders need to be handed death penalty as a way of making sure that the issue is curbed".