Malawi

This divorce case by the High Court centered on the plaintiff being abandoned by her husband, the defendant, after being diagnosed with HIV. The defendant removed all property from their house and refused to pay maintenance. The High Court found the defendant still had the responsibility to pay maintenance, and had to pay her for the equal value of the division of their marital property after their divorce, with her HIV status not limiting her legal rights to the property in any way.

A person who commits murder but does the act in the heat of passion caused by sudden provocation is guilty of manslaughter only (Section 213). Provocation is defined to include any wrongful act or insult of such a nature as to be likely to deprive an ordinary person of self-control and to induce such a person to assault the person who committed the act or insult (Section 214). Section 230 addresses women who causes the death of their child under the age of 12 months.

Per section 135, taking or detaining a woman of any age against her will for the purpose of marrying or engaging with her sexually (either for oneself or for another) is prohibited and punishable by seven years of imprisonment. Section 136 prohibits taking a child from the custody or protection of a parent or lawful caregiver against the will of such parent or caregiver and punishes the offence as a misdemeanor.

Section 157 prohibits any male person from having sexual relations with a female person who he knows is his granddaughter, daughter, sister, or mother regardless of whether consent was given. The offence is a felony punishable by imprisonment for five years, or for life if the female person is under the age of 18. Furthermore, an attempt of the offence is punishable as a misdemeanor. Upon conviction, courts also have the power to divest a male offender of any authority over a female under the age of 18 against whom the crime was perpetrated.

Public and private sexual acts between members of the same sex, including attempts to procure such acts are prohibited by sections 137A and 156. Such  acts are punishable by five years of imprisonment and in the case of males, specifically constitute a felony. Section 153 criminalizes “carnal knowledge” against the order of nature – a colonial era prohibition understood to ban homosexuality and sodomy – as a felony punishable by up to 14 years of imprisonment.

Section 149 prohibits any person from using unlawful means to try to cause a miscarriage in a woman, regardless of whether that person is in fact pregnant, and make the offence punishable by 14 years of imprisonment. Section 150 prohibits pregnant women from using unlawful means or permitting unlawful means to be administered to try to cause a miscarriage. A violation of this section is a felony punishable by seven years of imprisonment.

Amendments to Malawi’s Penal Code in 2023 included an increase of the age of “child” from 16 to under 18 years old and added sexual crimes by women against boys. Per section 138, an adult who has sexual intercourse with a child of the opposite sex is punishable by life imprisonment, or 21 years of imprisonment for attempt. It is a defense to these crimes if the perpetrator is no more than two years older than the child and the child consented.

Section 132 defines felony rape as unlawful carnal knowledge of a non-consenting woman or girl, or a consenting woman or girl if said consent was acquired by: (i) force or threats, or intimidation of any kind; (ii) fear of bodily harm; (iii) false representation as to the nature of the act; or (iv) by impersonating the husband of a married woman. Malawi’s 2023 Penal Code amendments provided penalties for sexual abuse of boys under the age of 18, but did not change the gender-specific definition of rape. Rape (Section 133) is punishable by death or imprisonment for life.

Section 160B prohibits engaging in sexual activity with a child under the age of 18, an offence punishable by 21 years of imprisonment generally and life imprisonment where there are aggravating circumstances. Aggravating circumstances include: (i) being armed or presenting as armed; (ii) being in the company of other persons; (iii) endangering the victim; (iv) acting to substantially degrade the victim; and (v) being in a relationship of proximity and authority with the child, such as a step parent, foster parent, teacher, or guardian.

Section 161 prohibits willfully and fraudulently deceiving a woman into think she is lawfully married in order to cohabitate or have sexual intercourse with her. The offence is punishable by 10 years of imprisonment. Bigamy is an offence punishable by five years of imprisonment, but remarriage is permitted where a spouse has been absent from the house for at least seven years (Section 162).