African Civil Society Condemn Malawi Criminalising consensual sexual relations...

Posted by Mutaleni on September 5, 2012

African civil society condemn Malawi criminalising consensual sexual relations between adult women. 

In Malawi in January 2011, President Bingu wa Mutharika  assented to a Penal Code Amendment Bill passed by the Malawi Parliament to expand criminal penalties to adult women who engage in consensual same sex relations. This amendment is in direct violation of Malawi's constitutional and international legal obligations. It also undermines effectiveness of the HIV response.

Sexual minorities face heightened vulnerability to HIV and AIDS. Any criminalisation of adult same sex relations obstruct any chances of either providing health services targeted to these groups, or the sexual minorities approaching the health services without fear of persecution. As correctly pointed out by experts in Malawi, 'the HIV response in Malawi can never be won without targeting high risk groups such as LGBTI people'.  Without an enabling legal environment that do not threaten to persecute sexual minorities, it is near impossible to provide targeted HIV services for sexual minorities.

The attached statement is addressed to the Malawi Government to express strong condemnation of the current penal code amendment to criminalise consensual same sex relations of adult women in Malawi. 

To endorse, please email the name and address of your organisation to: . Deadline for endorsements is 17.00hrs on Thursday, 10 February 2011. Deadline for endorsements is 17.00hrs on Thursday, 10 February 2011.



We, African civil society organizations, condemn the recent actions of the Malawian Parliament and President Bingu wa Mutharika amending the Penal Code to expand criminal penalties to adult women who engage in consensual same sex relations. This amendment is in direct violation of Malawi’s legal obligations, undermines an effective response to HIV and is un-African.


The amendment clearly violates fundamental rights enshrined in Malawi’s Constitution.  Specifically, section 20(1) of the Constitution protects against discrimination “in any form”.  Furthermore, the Constitution guarantees that every person has the right to dignity, under article 19(1); freedom of association, under article 32; freedom of expression, under article 35; and the right to personal privacy, under article 21.


The protection of these rights is further provided for under Malawi’s obligations under regional law. The African Charter on Human and Peoples’ Rights (ACHPR), ratified by Malawi,  guarantees non-discrimination, dignity and freedom from cruel, inhuman and degrading treatment, liberty, expression, and association under articles 2, 5, 6, 9(2), and 10(1) respectively.  With particular application to women, the Protocol to the ACHPR on the Rights of Women in Africa, ratified by Malawi in 2005, acknowledges the importance of protecting African women’s rights to dignity, to the free development of her personality and security of person under articles 3 and 4.


These rights are reinforced under Malawi’s obligations under the International Covenant on Civil and Political Rights (ICCPR), which Malawi has also ratified, protecting the right to non-discrimination; equality; liberty; privacy; and dignity.  The Human Rights Committee, tasked with interpreting the nature and extent of the rights enshrined in the ICCPR, held that laws criminalizing consensual relationships between same-sex adults violated the rights to privacy and non-discrimination under the ICCPR.


In addition to violating Malawi’s fundamental legal obligations, this amendment will undermine Malawi’s efforts to address HIV among people engaging in same sex relations— a group the Malawian government has recognized as vulnerable to discrimination and critical to its efforts to effectively respond to the HIV epidemic. The National HIV/AIDS Policy states: “Government and partners shall put in place mechanisms to ensure that HIV/AIDS/STI prevention, treatment, care and support and impact mitigation services can be accessed by all without discrimination, including [persons engaged in same sex sexual relations].” The 2009 Malawi National HIV and AIDS Action Framework (NSF) end of term review stated: “Although the NSF singled out the youth as a vulnerable group to HIV infection, there are other HIV/AIDS high-risk target groups that require special attention. These include commercial sex workers, women and men in armed forces, truck drivers, men who have sex with fellow men, women who have sex with fellow women, intravenous drug users.” This is reinforced by leading medical institutions as well as UNAIDS, UNDP and the World Health Organisation who recommend engaging persons having same-sex relations as a critical component of an effective response to HIV.


The amendment to the Penal Code contravenes the most basic rights guaranteed under Malawi’s Constitution. Furthermore, criminalizing people engaging in same sex relations will create legal obstacles hindering the ability of governmental and non-governmental agencies to provide critical HIV services to this high risk group and increase the fear among the group of accessing the needed services. Finally, the amendment contravenes the basic values we hold as Africans—to treat all with ubuntu.  Therefore, we call on the Malawian Government to repeal this amendment.