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National Legal Framework
Malawi law does not explicitly regulate adoption by same-sex couples, and there is no legal recognition of same-sex relationships. Adoption is governed by the Adoption of Children Act, which permits adoption by a single person or by “two spouses jointly”. As same-sex marriage and civil uniions are not recognised in Malawi, same-sex couples cannot jointly adopt a child under the current legal framework. While single individuals may in principle apply to adopt, LGBTQI+ persons may face significant legal and social barriers in practice due to the criminalisation of same-sex conduct and prevailing societal stigma.
The age of consent is not explicitly equalised for same-sex and different-sex relationships. Effectively, there is effectively no legal age at which same-sex relations are permitted, as same-sex activity is criminalised irrespective of age.
The Bill of Rights under Chapter IV of the Malawi Constitution prohibits discrimination, and guarantees equal and effective protection against discrimination of any kind (section 20). The Constitution also protects several fundamental rights and freedoms, including the right to life (section 16), personal liberty (section 18), human dignity (section 19 (1)), protection from torture and cruel, inhuman or degrading treatment (section 19 (3)), and the right to personal privacy (section 21). However, sexual orientation and gender identity are not explicitly included among the protected grounds. While section 20 refers to ‘other status or condition’, which could potentially be interpreted to include LGBTQI+ persons, this interpretation remains uncertain in practice and has not been clearly affirmed by courts.
This gap is further reflected in statutory law. The Gender and Equality Act prohibits discrimination primarily based on sex and related grounds but does not explicitly extend protection to sexual orientation or gender identity. Similarly, employment protections under the Employment Act prohibit discrimination based on ‘sex’ or ‘other status’, yet do not expressly include LGBTQI+ persons, leaving their coverage dependent on interpretation. As a result, despite the existence of broad constitutional guarantees, Malawi lacks clear and explicit anti-discrimination provisions protecting LGBTQI+ individuals, creating significant legal uncertainty and limiting the practical effectiveness of these rights.
There are no explicit legal provisions regulating blood donation by LGBTQI+ individuals. However, donor eligibility criteria may exclude certain groups based on risk assessments. For example, the Malawi Blood Transfusion Service indicates that individuals engaged in higher-risk sexual behaviour may be deferred from donating blood. Eligibility is determined through risk-based screening procedures. National guidelines provide that “all blood donors are screened by means of a written questionnaire (…) [including] behavioural patterns that may identify a risk of HIV and other infections”. While these criteria are not framed in terms of sexual orientation, they rely on assessments of perceived risk, which may disproportionately affect certain groups, including men who engage in sexual activity with other men. As a result, LGBTQI+ individuals may be indirectly excluded from blood donation in practice, despite the absence of an explicit legal prohibition.
There is no specific legislation regulating or banning conversion practices in Malawi (Equaldex). Such practices may occur in informal or religious settings without legal oversight.
LGBTQI+ individuals are not explicitly mentioned in Malawi’s Penal Code or Constitution. Legal provisions criminalising same-sex conduct instead refer to acts such as ‘unnatural offences’ and ‘indecent practices’, without making any direct reference to sexual orientation or gender identity. Consensual same-sex sexual conduct between adults in Malawi is criminalised under Sections 153, 154 and 156 of the Penal Code.
Section 153, which addresses ‘unnatural offences’, states that “any person who has carnal knowledge of another person against the order of nature, or permits such an act, commits a felony”, punishable by up to fourteen years’ imprisonment (Malawi Penal Code section 153).
Section 154 criminalises attempts to engage in same-sex sexual activity, providing that “any person who attempts to commit any of the offences specified” is liable to imprisonment of up to seven years (Malawi Penal Code section 154).
Section 156 prohibits ‘indecent practices between males’ and states that “any male person who, whether in public or private, commits any act of gross indecency with another male person” is subject to a penalty of up to five years’ imprisonment (Malawi Penal Code section 156).
The term ‘gross indecency’ is not explicitly defined in the Penal Code, but is generally understood to refer to non-penetrative sexual acts between men, including physical intimacy such as touching or same-sex sexual acts, even when conducted consensually and in private (ILGA World, 2023; Human Rights Watch, 2018). The provision has therefore functioned not only as a basis for formal prosecution but also as a tool for social control, reinforcing stigma and discouraging LGBTQI+ individuals from reporting violence or seeking protection.
This and other provisions originate from British colonial legislation: the Penal Code was introduced in 1930 during British colonial rule and was retained after Malawi gained independence in 1964 (Human Dignity Trust, 2023, ILGA World, 2023).
In 2010, the Penal Code was amended to include Section 137A, which criminalises ‘indecent practice between women’, making acts of ‘gross indecency’ between women punishable by up to five years’ imprisonment (Malawi Penal Code Amendment Act (2010); ILGA World, 2023). While the 2016 and 2023 legal reforms in Malawi introduced broader equality and the criminal justice framework, they did not address the criminalisation of same-sex conduct. As confirmed in Akster and Another v Director of Public Prosecutions and Another, sections 153, 154 and 156 of the Penal Code remain in force, meaning that LGBTQI+ individuals continue to face criminal liability despite general equality guarantees. In Akster and Another v Director of Public Prosecutions and Another, the Malawi Constitutional Court upheld the constitutionality of laws criminalising consensual same-sex conduct. The Court held that the provisions regulate conduct rather than targeting a specific group and do not violate rights to privacy, dignity, liberty, or equality. As a result, same-sex conduct remains criminalised in Malawi.
In November 2012, the Minister of Justice, Ralph Kasambara, announced a temporary moratorium on arrests related to same-sex conduct while the constitutionality of the laws was being discussed (Human Rights Watch, 2012; Amnesty International, 2012). However, this announcement was later disputed and the minister clarified that the laws had not been formally suspended. The criminal provisions have since remained in force.
A further important development was the opening of the judicial review track in 2013. Human Rights Watch reported that, in September 2013, the Malawi High Court initiated a constitutional review of section 153(a), raising the possibility that the courts might eventually examine whether the criminalisation of consensual same-sex conduct was compatible with the Malawi Constitution. However, Human Rights Watch also noted in 2018 that these cases had still not been resolved on the merits and had become stalled on procedural grounds.
The position then shifted again in 2014-2016. Human Dignity Trust records that, in July 2014, the government announced a moratorium and that, in December 2015, Justice Minister Samuel Tembenu reaffirmed that the government had imposed a moratorium on arrests and prosecutions for consensual same-sex activity.
The next major development was Jana Gonani’s case. According to Human Dignity Trust, Gonani, a transgender woman, was convicted in December 2021 under section 153(c) and sentenced to eight years’ imprisonment. Amnesty International reports that she was arrested in 2021 and later filed a constitutional legal challenge – which was subsequently combined with a wider lawsuit questioning the legality of Malawi’s laws criminalising same-sex conduct. Thus, Gonani’s case became one of the vehicles through which the constitutionality of sections 153, 154 and 156 was placed before the Constitutional Court (Human Dignity Trust). Her appeal was ultimately rejected in a High Court judgment in June 2024
In 2023, public and political backlash intensified while the constitutional challenge was pending. Human Dignity Trust records that religious groups marched against same-sex rights in July 2023 as the Constitutional Court was expected to hear the case arising from Gonani’s challenge. Amnesty International likewise reported rising hostility and threats towards LGBTQI+ organisations in the months leading up to judgment.
The most significant recent development in Akster and Another v Director of Public Prosecutions (Constitutional Case No. 2 of 2021) was decided on 28 June 2024. The Constitutional Court upheld sections 153, 154 and 156 of the Malawi Penal Code, which criminalise consensual same-sex conduct, finding that they do not violate constitutional rights to privacy, dignity, liberty, or equality. The Court further reasoned that the provisions regulate conduct rather than targeting a specific group.
Same-sex marriage and civil unions are not legally recognised in Malawi, and there is no legal framework providing recognition or protection for same-sex partnerships (ILGA World, 2023; Human Dignity Trust, 2023). The Marriage, Divorce and Family Relations Act defines marriage as a union between a man and a woman, thereby excluding same-sex couples from legal recognition. Section 14 of the Act provides that “two persons of the opposite sex who are both not less than eighteen years of age and are of sound mind may enter into marriage”, effectively excluding same-sex relationships from legal recognition in Malawi.
The legal status of transgender persons in Malawi remains unclear and largely unregulated. There are no explicit legal provisions allowing individuals to change their legal gender or access gender-affirming healthcare, and legal recognition of gender identity is not formally established (ILGA World, 2023; Human Dignity Trust, 2023). Non-binary gender identities are not recognised under Malawian law.
Although the Constitution guarantees rights such as equality and dignity, gender identity is not explicitly protected and any inclusion under ‘other status or condition’ remains uncertain in practice, according to available research. The same source notes that Malawi does not provide a clear legal mechanism for changing gender markers, as existing provisions are discretionary and not designed for legal gender recognition. It further highlights that transgender persons face indirect legal barriers, including restrictions in marriage based on birth sex and exposure to criminalisation and harassment under the Penal Code and public order provisions.
Intersex persons in Malawi are not explicitly recognised in law and remain largely invisible within the legal framework. Neither the Constitution nor relevant equality legislation explicitly protects intersex status. Moreover, there is no specific regulation governing medical interventions on intersex children. According to the Office of the United Nations High Commissioner for Human Rights, intersex children globally are often subjected to ‘medically unnecessary’ and irreversible procedures without their informed consent, a concern that is also relevant in Malawi due to the absence of safeguards. Similarly, the United Nations Human Rights Council has highlighted that such interventions raise serious issues regarding bodily integrity and autonomy.
International Legal Framework
Malawi has ratified a number of international and regional human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the African Charter on Human and Peoples’ Rights, which provide protections against discrimination and have increasingly been interpreted to include protection against discrimination based on sexual orientation and gender identity (United Nations Treaty Collection, 2024; African Commission on Human and Peoples’ Rights, 2014).
The practical implementation of these international and constitutional guarantees in Malawi remains limited. Although Malawi has ratified key human rights treaties such as the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, their provisions are not automatically or consistently applied in domestic law. In practice, courts have been reluctant to interpret constitutional rights, such as equality and dignity, in a way that extends protection to LGBTQI+ persons. This is illustrated by Akster and Another v Director of Public Prosecutions, where the Constitutional Court upheld the criminalisation of same-sex conduct and did not recognise sexual orientation as a protected ground under the Constitution.
More broadly, reports by the United Nations Human Rights Council indicate that discrimination against LGBTQI+ individuals persists in practice, including harassment by authorities and limited access to justice. The absence of explicit anti-discrimination protections, combined with the continued criminalisation of same-sex conduct, significantly restricts the ability of affected individuals to invoke constitutional or international rights effectively. As a result, despite Malawi’s formal commitment to international human rights standards, the realisation of these rights in practice remains constrained, particularly in relation to sexual orientation and gender identity.
Moreover, the implementation of these constitutional and international guarantees is undermined by systemic barriers and documented instances of abuse. Reports by REDRESS highlight that LGBTQI+ persons in Malawi have been subjected to serious human rights violations by state actors, including arbitrary arrest, detention, and ill-treatment in custody that may amount to torture. These findings indicate that law enforcement authorities do not consistently uphold constitutional protections such as human dignity and freedom from inhuman or degrading treatment. Instead, criminal law provisions are at times used to legitimise or facilitate abuse, contributing to a climate in which LGBTQI+ individuals are particularly vulnerable to state violence.
At the same time, access to basic state services, including healthcare, is often compromised. Reporting by The World shows that many LGBTQI+ individuals avoid seeking medical care due to fear of discrimination, mistreatment, or exposure to authorities. In some cases, individuals have reportedly been mocked, denied services, or treated in a discriminatory manner by healthcare providers. This creates a situation in which constitutional rights, such as the right to dignity and health, are not effectively realised in practice. Moreover, when LGBTQI+ individuals experience violence, they are often reluctant to report incidents to the police due to fear of arrest or further abuse, meaning that violations frequently go unpunished. Consequently, the combination of state-linked abuse, lack of effective remedies, and barriers to essential services demonstrates that formal legal protections remain largely inaccessible for LGBTQI+ persons in Malawi.
Further evidence of the gap between formal rights and their implementation is provided by the US Department of State in its Country Reports on Human Rights Practices. The report notes that in Malawi, individuals perceived to be LGBTQI+ have been subjected to societal violence, discrimination, and abuse, while authorities have at times failed to provide effective protection. It further highlights that victims are often reluctant to report incidents due to fear of arrest under laws criminalising same-sex conduct, as well as concerns about hostile or dismissive responses from police. In some cases, reports have themselves contributed to harassment. This reinforces the conclusion that, despite constitutional and international guarantees, LGBTQI+ persons face significant obstacles in accessing state protection and remedies in practice.
For more detailed information on the protection of LGBTQI+ rights in Malawi, visit the Malawi ILGA World Database.
Reports by civil society organisations, including the Center of Development of People (CEDEP) and the Center of Human Rights and Rehabilitation (CHRR), document ongoing violence, discrimination and social exclusion against individuals based on their real or perceived sexual orientation or gender identity, including physical attacks, barriers to healthcare, stigma and breaches of privacy.
Public attitudes towards homosexuality in Malawi remain overwhelmingly negative and reflect deeply rooted social stigma. Survey data from Afrobarometer from 2016 confirm that a large majority of Malawians express intolerance towards homosexual individuals, with most respondents stating that they would strongly dislike having a gay or lesbian neighbour. Similarly, data from the Pew Research Center from 2020 indicate that acceptance of homosexuality in Malawi remains low by global comparison. This widespread stigma is reflected in everyday experiences. Reports by CEDEP and CHRR document cases from 2016 in which LGBTQI+ individuals have been subjected to harassment, physical violence, and discrimination within their communities, including being evicted from their homes or threatened by neighbours.
The Nyasa Times reports, in 2026, sexual minorities in Malawi are still not accepted. They continue to fight against discrimination; they are forced by their landlords to vacate their homes and are not recognised as residents of Malawi.
Negative attitudes are further reinforced by public discourse. According to the International Commission of Jurists, statements by political and religious leaders have contributed to portraying homosexuality as contrary to Malawian values, thus legitimising social exclusion. This hostile environment has tangible consequences: CEDEP and CHRR report that LGBTQI+ individuals often avoid public spaces and conceal their identity to reduce the risk of violence. In some documented cases, individuals have been attacked or reported to authorities by community members, illustrating how social stigma operates in tandem with criminalisation to marginalise LGBTQI+ persons in Malawi.
Information on the Nyasa Rainbow Alliance (NRA) further illustrates the hostile environment for LGBTQI+ persons in Malawi and the limited capacity of the state to provide protection. According to Front Line Defenders, NRA members have been subjected to threats, harassment, and intimidation due to their work defending LGBTQI+ rights. Such incidents demonstrate not only widespread societal hostility but also the risks faced by those advocating for LGBTQI+ equality. The reported lack of effective protection for activists suggests that state authorities are either unwilling or unable to adequately respond to violence and repression, reinforcing broader concerns about the gap between formal legal protection and their implementation in practice.
The Malawian government has been described as navigating competing pressures between international actors advocating for human rights protections and strong domestic opposition to the recognition of LGBTQI+ rights, including from religious institutions and civil society groups (Human Rights Watch., 2022; ILGA World, 2023).
Although a moratorium on arrests related to same-sex conduct was announced in 2012, it was later withdrawn, and the laws continue to be enforced (Human Rights Watch, 2012; Deutsche Welle, 2012).
Criminalisation and social stigma contribute to an environment in which LGBTQI+ individuals are vulnerable to abuse, including blackmail, violence and limited access to justice and healthcare services (Human Rights Watch., 2022; Human Dignity Trust, 2023). Studies have also shown that discrimination and marginalisation negatively affected access to HIV prevention and treatment services among men who have sex with men (UNAIDS, 2023; CEDEP, 2018).
A widely cited case illustrating both societal hostility and state response is that of Steven Monjeza and Tiwonge Chimbalanga, who were convicted in 2009 under provisions criminalising same-sex conduct after holding a traditional engagement ceremony. They were sentenced to 14 years’ imprisonment but were later pardoned following international pressure (Human Rights Watch, 2010; Journal of African Law, 2016).
As of recent available information, there is no publicly documented case law from Malawian courts specifically addressing asylum applications based on sexual orientation or gender identity.
In 2010 a Malawian court convicted Steven Monjeza and Tiwonge Chimbalanga of ‘gross indecency’ and ‘unnatural acts’ after they had held an engagement ceremony. The couple had been arrested in December 2009 and faced up to 14 years in prison. The case sparked international criticism and highlighted the criminalisation of same-sex relationships in Malawi. While the defence argued that the acts were consensual and caused no harm, the court upheld the conviction, reflecting prevailing societal and legal opposition to homosexuality in the country.
In the case Akster and Another v Director of Public Prosecutions 2025, the Director of Public Prosecutions (DPP) sought judicial review of a decision by the Chief Justice to certify a criminal proceeding as involving constitutional issues. The underlying case concerned charges of corruption and fraud, in which the accused argued that their prosecution violated constitutional rights. Although the trial court rejected this argument, the accused applied directly to the Chief Justice, who nonetheless certified the matter as constitutional.
The High Court held that the certification by the Chief Justice is a final and conclusive judicial decision, which is not subject to judicial review. It further clarified that any procedural irregularities in the certification process must be addressed before the Chief Justice himself. As a result, the DPP’s application was refused.
In J.M. (Malawi) v International Protection Appeals Tribunal 2018, a Malawian national sought asylum in Ireland based on his sexual orientation, claiming that he would face persecution if returned to Malawi. His application had initially been refused, primarily due to doubts about the credibility of his account. Upon appeal, the case focused on whether the applicant’s sexual orientation was genuine and whether he faced a real risk of persecution in Malawi.
The tribunal examined both the credibility of the applicant and the country conditions in Malawi, including the criminalisation of same-sex conduct and societal hostility. The case illustrates the challenges faced by LGBTQI+ asylum seekers in proving their claims, as well as the recognition by foreign tribunals that individuals may face serious risks in countries like Malawi. The Irish High Court set aside the tribunal’s decision and ordered the case to be reconsidered, finding that insufficient consideration had been given to the country conditions and risks faced by LGBTQI+ individuals in Malawi.
Organisations supporting LGBTQI+ individuals
NRA is an LGBTQI+-led organisation in Malawi that works directly with the community to address human rights violations, barriers to healthcare, and social exclusion. NRA provides peer-based support, community outreach, and assistance in accessing health services, particularly for LGBTQI+ individuals facing stigma or discrimination. Its activities include awareness-raising, referrals to healthcare providers, and support in navigating services that may otherwise be difficult to access. In terms of individual support, NRA may assist community members on a case-by-case basis, particularly through peer support and referrals. However, it is not a formal legal aid provider, and the level of support available depends on resources and the specific needs of the individual.
Country-of-Origin Experts in LGBTQI+ rights
Email: kdionne@smith.edu
Kim Yi Dionne is a professor of government at Smith College, where she teaches courses on African politics. She has a PhD in Political Science from the University of California Los Angeles (UCLA). Her research covers a range of topics, including elections and protests, public opinion, HIV/AIDS interventions, and the politics surrounding sexual orientation and gender identity in Africa. She was a Fulbright Fellow to Malawi from 2008-2009.
Email: almsosa2@gmail.com
Alan Msosa is a Malawian and has a PhD in Human Rights from the University of Essex in the United Kingdom. He is a postdoctoral researcher at the University of York where he is also a member of the International Global Development Centre. He is also an affiliate of the University of Bergen Centre on Law and Social Transformation. He is also a member of the Centre for Human Rights Organisation (CHRR), a leading human rights organisation with observer status with the African Commission on Human and Peoples’ Rights. His expertise include investigating cases of human rights violations and administrative injustices, drafting expert opinions, programme management and research.
Areas of Expertise: human rights, HIV and AIDS, health.
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Last updated May 2026
