Malawi’s punitive legal environment combined with social stigma and intense violence prevents many lesbian, bisexual, transgender, and intersex (LBTI) people from living full lives.
Consensual same-sex conduct and acts are criminalised under section 153 and 154. Section 153 bans â€œunnatural offenses” with imprisonment for seven years, with or without corporal punishment. Section 137A criminalises “indecent practices between females” in public or private with imprisonment for five years.
There is no legal recognition of transgender identity in Malawi. In fact, section 180 (g) of the Penal Code criminalising gender expression – “criminalises men who wear their hair beyond a certain length, with a penalty of three months imprisonment, and for repeat offenders, six months imprisonment and a fine.”
The Malawi Constitution does not specifically prohibit discrimination on the grounds of sexual orientation and gender identity. Malawi does not have a framework for the protection of intersex people.
In 2015, the CEDAW Committee made two rights-affirming recommendations for Malawi that included some SOGIESC elements. The Committee indicated its concern that the Penal Code Amendment of 2011 criminalises same-sex relationships between women, and recommended decriminalising sexual relationships between adult women.
The List of Issues had a LBTI-inclusive question that asked whether any steps are envisaged to decriminalise same-sex relations between consenting adults and to recognise the rights of lesbian, bisexual, and transgender women and intersex persons to equality and non-discrimination, as well as to review section 20 of the Constitution to include sexual orientation among the grounds on which discrimination is prohibited.
Other general recommendations by the Committee that can apply to LBTI people include:
(a) to reduce maternal mortality by ensuring adequate SRHR services;
(b) to reinforce measures to protect women and girls with albinism from all forms of violence and address the discrimination, stigmatization and social exclusion faced by them;
(c) concern at the various forms of discrimination and criminal sanctions faced by ‘women in prostitution’ and at the insufficient programmes for women wishing to ‘leave prostitution’.
Malawi’s government submitted their eighth periodic report under article 18 of the CEDAW convention in February, 2021; this report was due in 2019. Despite two rights-affirming recommendations by the CEDAW Committee in 2015 that had SOGIESC elements, the Malawi government did not refer to the LBTI constituencies in their state reports. In fact, they only referred to the issue of decriminalising same sex relationships between women.
Malawi commissioned the Malawi Human Rights Commission (MHRC) in 2018 to undertake a public consultation with a view to soliciting views from Malawians on whether or not to remove from the Penal Code sections that criminalise same sex relationships. This consultation process, according to the state party report, is still ongoing.
The periodic report also had other information around violence prevention, marital rape, SRHR, and anti-trafficking but these don’t refer to the LBTI communities. They are also not included within the anti-discrimination procedures and processes. The List of Issues contains no LBTI specific issues, and the State party’s report also contains no reference to these constituencies specifically.