Consensual sex between same-sex couples is unlawful.
The Penal Code Cap. 7:01 provides –
Section 137A. Indecent practices between females [R1.8]
Any female person who, whether in public or private, commits any act of gross indecency with another female shall be guilty of an offence and liable to a prison term of five years.
In late January 2011, President Bingu Wa Mutharika assented to the above amendment to the Penal Code [R1.8].
Section 153. Unnatural offences [L1.7]
Any person who –
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; 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 155. Indecent assault of boys under fourteen
Any person who unlawfully and indecently assaults a boy under the age of fourteen years 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.
On 19 December 2015, Minister of Justice Samuel Tembenu was reported to have said that Malawian Police had been ordered to drop charges of sodomy against 19-year-old Cuthbert Kulemeka and Kelvin Gonani (quaere Gomani) (37) arrested in the capital Lilongwe. The government has suspended laws against same-sex relationships pending a decision on whether to repeal the legislation and ‘imposed a moratorium’ not to arrest or prosecute homosexuals [R1.6]. However, see 2. Courts & Tribunals below.
On 15 July 2014, Secretary for Justice and Solicitor-General Dr Janet Chijaya-Banda was reported to have told the United Nations Human Rights Committee in Geneva that Malawi had suspended arresting people for homosexuality until its anti-gay laws are reviewed [R1.5].
On 08 November 2012, Justice minister Ralph Kasambara denied any decision to suspend Penal Code laws banning same-sex relationships and that the laws would still be enforced [R1.4].
On 05 November 2012, Justice Minister and Attorney General Ralph Kasambara announced that “There is a moratorium on all such laws (banning same-sex relationships), meaning that police will not arrest or prosecute anyone based on these laws … until the time that parliament makes a decision” [R1.3].
On 26 September 2012, Malawian President Joyce Banda said that her country is not ready to decriminalize homosexuality despite pledging to do so on taking office [R1.2].
On 18 May 2012, newly appointed President Joyce Banda, said she will repeal her country’s law which bans homosexual acts, though obtaining Parliamentary approval of the repeal will likely prove challenging [R1.1].