By Rick Dzida
Nation’s laws are meant to reflect its highest ideals—justice, protection, and the promise of human dignity.
Yet, for many citizens in Malawi, the law remains a heavy shadow from the colonial past, separating families and forcing peaceful individuals to live in fear.
Finding a way forward requires us to look at both the cold text of our legal statutes and the warm, human realities of the people they impact.
The tension between modern life and outdated laws is playing out publicly today. On Facebook, a Malawian woman named Tamia Ja recently shared expressions of romantic interest toward another woman
While this is a common act of digital self-expression, it sits in direct conflict with Malawi’s penal code. Currently, the law relies on statutes that criminalise private lives.
Section 153 of the Penal Code punishes consensual same-sex acts with up to 14 years in prison.
Section 156 penalises vaguely defined “acts of gross indecency.”
Section 137A explicitly extends these penalties to women, threatening up to 5 years of imprisonment for “indecent practices between females”.
When a young woman’s social media post can technically be classified as a felony, the legal system is no longer focusing on public safety. Instead, it is being used to police human emotion.
From a legal standpoint, criminalising what consenting adults do in their homes is an unjustifiable invasion of individual liberty.
Section 21 of the Malawi Constitution explicitly guarantees every citizen the right to privacy.
According to the Southern Africa Litigation Centre (SALC), this right broadly shields individuals from unwarranted state surveillance, arbitrary searches, and interference with their private communications.
When the state uses sections of the penal code to monitor, arrest, or police adults for their private relationships, it directly violates Section 21.
Forcing individuals to undergo non-consensual medical or psychiatric examinations during investigations contradicts the constitutional ban on cruel, inhuman, or degrading treatment.
By keeping these laws, the state creates an environment where the right to privacy exists only for the heterosexual majority.
The tension surrounding these constitutional boundaries reached a critical junction on 28 June 2024, when Malawi’s Constitutional Court handed down its judgment in Akster and Another v. Director of Public Prosecutions.
The case, brought by Dutch national Jan Willem Akster and Malawian transwoman Jana Gonani, challenged the constitutionality of the country’s anti-homosexuality statutes.
However, the three-judge panel dismissed the challenge, ruling that the laws were not discriminatory and maintaining that any legal revisions must come directly from parliament.
The ruling drew swift, sharp condemnation from human rights advocates locally and globally.
Khanyo Farise, Amnesty International’s Deputy Regional Director for East and Southern Africa, described the decision as a bitter setback for human rights in Malawi.
Farise stated, “The ruling manifestly flies in the face of Malawi’s constitution, the African Charter and international human rights law, which all clearly prohibit discrimination. It also makes Malawi an outlier in Southern Africa, where most countries have decriminalized consensual same-sex sexual conduct.”
Representatives from the Nyasa Rainbow Alliance, speaking via CIVICUS, noted that the decision “appeared to be influenced by social prejudices rather than legal principles” and warned that “many will interpret the court ruling to mean there’s no place for LGBTQI+ people in our country.”
An anonymous local LGBT rights activist told Human Rights Watch: “It was a dark day for the whole community. We are afraid more than ever.”
The UN Human Rights Office echoed these statements, calling the decision “deeply disappointing and contrary to the country’s own international human rights obligations.”
Behind these legal codes and court battles are real people whose lives have been deeply disrupted by state intervention. The enforcement of these laws has left lasting emotional and social scars on Malawian families.
In 2009, Tiwonge Chimbalanga and Steven Monjeza were arrested in Blantyre simply for celebrating their traditional engagement (chinkhoswe).
Their 2010 sentence of 14 years of hard labour drew global attention to the human cost of these laws. Though a presidential pardon eventually freed them, the experience fractured their lives and forced them into exile.
In 2015, Cuthbert Kulemela and Kelvin Gonani were arrested in Lilongwe after a local complaint.
While their charges were eventually dropped due to political gridlock, the public exposure and time spent in custody damaged their reputations and livelihoods, proving that even unenforced laws carry a heavy social penalty.
In July 2014, the government implemented an executive moratorium to halt arrests and prosecutions for same-sex relationships.
Legally, this was an admission that these statutes violate human rights. However, leaving the laws on the books creates an unstable environment.
A permanent pause is not a legal solution. It leaves vulnerable citizens exposed to blackmail, extortion, and arbitrary police harassment.
Because the 2024 ruling explicitly shifted accountability back to the legislature, a permanent pause is no longer viable; parliament must step up to resolve the contradiction.
Beyond courtroom battles, these laws have a severe, everyday impact on the younger generation.
According to findings from the Southern Africa Litigation Centre, young LGBTQI+ Malawians face unique economic and social barriers.
When young people are outed or suspected of being in same-sex relationships, many face immediate rejection from their families. If their parents or guardians withdraw tuition sponsorship, their education stops abruptly, limiting their future prospects.
Family evictions frequently force young adults out of their childhood homes. Without a stable social support network, they are pushed into homelessness and financial insecurity.
The fear of criminal penalties prevents young professionals from being open about their identities. Employers can use rumours as a reason for termination, arbitrary suspension, or refusal of promotions, keeping these individuals in unstable economic situations.
Stigma heavily limits access to essential medical services, particularly mental health care and sexual health resources, which compromises the general well-being of young citizens.
Data shows that this is not a marginal issue. Research indicates that roughly 186,000 Malawians—about 3.5% of the population—belong to sexual and gender minorities.
This community is larger than the population of several major districts, meaning these laws affect thousands of sons, daughters, workers, and neighbours.
A constitutional democracy is built on a simple promise: the majority rules, but the rights of the minority are permanently protected.
When 3.5% of our citizens must hide who they are to remain safe, the promise of equal citizenship remains unfulfilled for the entire nation.
Following the Constitutional Court’s clear directive, the responsibility for human rights now rests with the legislature. Parliament and the executive branch should consider the following practical steps.
First, Parliament should formally repeal Sections 153, 156, and 137A, aligning the Penal Code with the human rights commitments in the Malawi Constitution.
Second, introduce statutory protections ensuring that no citizen can be denied healthcare, employment, or housing based on their identity.
Third, codify clear directives that prevent police from entering private homes, conducting arbitrary searches, or performing forced medical examinations based on a person’s perceived orientation.
Most importantly, task the Malawi Human Rights Commission with leading public dialogues that reduce stigma, counter misinformation, and build community understanding.
