Malawi

  1. Flag_of_Malawi.svg
    Malawi, officially the Republic of Malawi, is a landlocked country in southeast Africa that was formerly known as Nyasaland. It is bordered by Zambia to the northwest, Tanzania to the northeast, and Mozambique on the east, south and west.

    Capital: Lilongwe

    Currency: Malawian kwacha

    President: Peter Mutharika

    Population: 16.36 million (2013)

    Official language: English

    LAWS

  2. The Malawi Penal Code provides:

    Section 137A. Indecent practices between females. 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.

    Section 153. Unnatural offences. 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.

    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 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 [under Section 28 of the Penal Code].

    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.

    Malawi Constitution

    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.

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