The Malawi Penal Code provides:
The news media reported in December 2011 that these statutes had been sent to the Malawi Law Commission (MLC) for review, quoting Ephraim Chiume, Malawi’s justice minister. However, a high-level delegation of legal experts appointed by the International Bar Association’s Human Rights Institute found in January 2012 that the MLC had not, in fact, been asked specifically 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, the Malawian government suspended all laws that criminalized homosexuality. Attorney General and Minister of Justice Ralph Kasambara ordered police not to arrest LGBT individuals, pending a review from the National Assembly. Three days later, he reversed himself, saying, “There was no such announcement and there was no discussion on same-sex marriage.”TheMalawi Law Society argued that it was unconstitutional for ministers to arbitrarily suspend any law and would set a dangerous precedent for the future. Religious leaders were strongly against the suspension.
In November 2013, the Malawi High Court announced its intention to review the constitutionality of the law. The hearing was scheduled on 2 December 2013.
The Malawi Constitution does not specifically prohibit discrimination on the grounds of sexual orientation. Human rights lawyer Chrispine Sibande, however, argued in 2010 that discrimination is prohibited under Section 20 of the constitution, which provides that “all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.” There has no been no official legal ruling to this effect.