Women and Justice: Jurisdiction

Domestic Case Law

R. v. Biliati High Court of Malawi Criminal Division (2021)

Statutory rape or defilement

The 33-year-old defendant pled guilty and was sentenced to 10 years’ imprisonment by a First Grade Magistrate for defilement after luring a nine-year old girl to his house and raping her. Subsequent medical examinations revealed that the defendant was HIV-positive, as well as injuries and other evidence of the crime on the victim, who did not contract HIV. The State appealed the sentence, arguing that it was insufficient due to the nature of the crime. The High Court agreed, citing 2013 precedent recommending that 14 years’ imprisonment should be the starting point for defilement sentences. However, the High Court noted the increase of defilement cases in Malawi – 2,155 convictions for defilement by July 2020 – indicated that 14 years was an insufficient deterrent. Instead, the High Court recommended that 20 years be the minimum sentence for defilement, noting the recent trend of High Court judges increasing such sentences similarly. In reviewing the defendant’s sentence, the Court considered numerous factors, including that: i) defilement cases against young girls had been on the rise in recent years in Malawi, which justified harsher sentences to protect young girls; ii) statutory rape of a girl under 16 is a serious offence; and iii) the defendant was HIV-positive and could have infected the victim. Ultimately, the High Court ordered that the defendant’s 10-year sentence be increased to 40 years’ imprisonment.

Sande v. Sande High Court of Malawi (2009)

Divorce and dissolution of marriage, Property and inheritance rights, Sexual harassment, Stalking

The petitioner sought a divorce from her husband under common law rather than Islamic rite. After several years of marriage, (i) the petitioner discovered that the respondent had lied about being divorced prior to their marriage, (ii) the respondent stopped supporting her financially, and (iii) the respondent neglected their relationship. After she started a business to provide for herself, the respondent employed his former wife’s relatives to “spy and scorn her to leave the house.” The matter was brought to their religious leader, who ordered the couple to three months’ separation to see whether reconciliation was possible. During that period, the respondent lived with his former wife, admitted to other extra-marital relationships, continued to harass the petitioner for conjugal relations, and declared that he did not want her as his wife, which he believed should have legally relieved him of their marriage. The petitioner subsequently applied for divorce in the High Court. The respondent contested adjudicating the matter before the High Court, arguing (i) that the divorce should have been adjudicated by religious leaders rather than a secular court and (ii) that he believed that the marriage was already dissolved given his declaration to his religious leader that he no longer wanted to be married (although no witnesses testified to hearing the respondent pronounce the “talaq” against his wife). The High Court emphasized that courts do not have a monopoly on divorce; for example, couples can divorce by mutual agreement at custom before village civic authorities or other tribunals. However, even in such situations, if one party is wronged or does not consent to the divorce, that party can seek resolution in a secular court. The High Court concluded that the respondent’s alleged “divorce” was not valid, as the respondent had violated the tenets of his faith with his extramarital affairs, harassment of his estranged wife, and lies to lure her into the marriage. Emphasizing the equal status of husband and wife under the Constitution, the Court held that the respondent’s summary declaration of a dissolved marriage in this case, especially as it was unjustified, did not conform to the principles of justice, equality, and morality, and granted the petitioner the divorce under law.

Mwanamanga v. Malamulo Mission Hospital Industrial Relations Court of Malawi (2005)

Employment discrimination, Gender discrimination

The defendant employed the plaintiff as a librarian in 1995, but dismissed her from her position in 2000 because she married a polygamist. The plaintiff challenged the dismissal as unfair and asked for an order that her former employer, the defendant, pay compensation and long service pay. In siding with the plaintiff, the Court considered the anti-discrimination provisions of the Constitution, given that the facts underlying the offence took place prior to the Employment Act coming into effect. The Court concluded that the termination of the plaintiff qualified as discrimination. The reasoning underlying the termination effectively prevented the plaintiff from marrying a man of her choice, and from engaging in economic activity through employment, both fundamental constitutionally-protected rights. The Court emphasized that it did not matter that the defendant’s conditions of service prohibited polygamous marriages among its workforce, as such a prohibition contravened the Constitution. In closing, the Court ordered the parties to produce documents and other material relevant to the assessment of compensation for the plaintiff.

R. v. Makuluni High Court of Malawi (2002)

Sexual violence and rape

The defendant was convicted rape, with the trial court finding that he followed the complainant to her house, suggested sexual intercourse, attacked her when she declined, and raped her. The defendant, a first-time offender, received a sentence of four years’ imprisonment. A judge reviewed the sentence and sent it to the High Court for consideration on the grounds that the sentence necessitated judicial remand due to manifest inadequacy. In concluding the lack of necessity of remand, the High Court reviewed the approach to sentencing for criminal offenses, which must regard the specific circumstances of the offense, the offender and the victim, and the public interest. The High Court discussed a few factors that must be taken into consideration in sentencing in rape cases, namely the victim’s age, the effect of the rape on the victim, and whether the perpetrator i) used violence above the minimum force to commit the rape, ii) used a weapon to intimidate or wound the victim, iii) repeatedly raped the victim, iv) premeditated and planned the rape, v) had previous convictions for sexual or other violent offences, and vi) subjected the victim to additional sexual indignities or perversions. The High Court affirmed precedent suggesting that three years is the minimum sentence for an adult convicted of rape without aggravating or mitigating factors. Specifically, the Court cited English precedent, which suggested five years as the threshold sentence, before citing the Malawi High Court suggesting that the threshold should be three years because of prison conditions in Malawi. In applying precedential sentencing standards to the specific circumstances of the case, the High Court determined that the lower court’s sentence did not qualify as manifestly inadequate, and therefore did not warrant intervention.

R. v. State President & Another High Court of Malawi (2015)

Gender discrimination

The plaintiffs, four members parliament, sought judicial review before the High Court of a decision of the State President to appoint a woman, Mrs. Fiona Kalemba, as the Clerk of Parliament. This occurred against the recommendation of the Parliamentary Service Commission, which had submitted a male candidate who they believed to be the best candidate for the position. The State President wanted three short-listed names for the position, and specified that a woman should be included. The Court affirmed the State President’s decision primarily on the grounds that a recommendation is an advisory action that does not have any binding effect. The Court further considered the possibility that if the President wanted a woman for the position, “reverse” or “positive” discrimination is allowed in Malawi and internationally, and hence would not be a violation of law. There is no requirement of merit as the deciding factor in presidential appointments. The Court denied the plaintiffs’ claim, holding that gender and empowerment of minority groups are relevant considerations that may be taken into account in making presidential appointments.

R. v. Mponda (Child Criminal Review Case No. 8 of 2017) High Court of Malawi (2017)

Statutory rape or defilement, Trafficking in persons

Three minor girls, victims of human trafficking who the defendant lured in with promises of working in a restaurant, but instead sent to work at a bar, appealed their case. When the work conditions turned out to be exploitative, the appellants reported the defendant to the police. The case was appealed to the High Court on the basis that: (i) the case file did not go through the standard process whereby a case is registered in the Criminal Registry then distributed to a Magistrate by a Chief Resident Magistrate, and (ii) the magistrate did not follow proper procedure for the child witnesses’ testimony. In concluding that a proper lower court be assigned to re-hear the matter, the High Court underscored the importance of following legal procedure designed to protect the rights of vulnerable child witnesses. The High Court pointed out a number of procedural protocols, such as ensuring that the child witnesses did not come into direct contact with the accused, making provision for the witness to be accompanied by a supportive figure in court, and considering the possibility of a pre-recorded interview of a child witness as evidence. The court noted that a court competent in handling child witnesses must re-hear the matter, as causing witnesses to endure repeat trials as a result of the failure to follow proper judicial procedure is akin to repeat victimization of such witnesses.

R. v. Yusuf Willy (Criminal Review No. 6 of 2021/Criminal Case No. 183 of 2021) High Court of Malawi (2022)

Custodial violence, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The defendant was charged the defilement of the complainant, a 17-year-old girl. In his defence, the accused claimed that he could not get an erection (albeit, apparently, only after the magistrate raised the question himself). During the proceedings, a woman stood up in court and volunteered to ascertain whether the accused could obtain an erection. One week later, the magistrate, prosecutor, court interpreter, accused, complainant, and the woman who had volunteered met in the magistrate’s chambers to witness whether the woman could touch the defendant sexually until he obtained an erection. The magistrate observed, after approximately 30 minutes of sexual contact, that the accused’s “penis got a bit hard but not very hard.” Following a complaint from the complainant’s parent, the High Court was requested to review the conduct of the magistrate to determine the veracity of the complaint. At this point, the magistrate had not reached a verdict. By way of a preliminary conclusion, the High Court noted that “this illegal show seemed to come out of the blue” and found that the manner of investigation into the accused’s ability to obtain an erection was “raised by the magistrate, thereby making the [High] Court conclude that there were extra judicial discussions” between the accused and the magistrate. The Court also expressed serious concern about secondary victimisation, given that the sexual act occurred in the presence of the complainant. The Court then outlined its reasons for arriving at its ultimate decision, focusing on two matters: the existence of bias and judicial stereotyping. Regarding the first issue, the Court cited caselaw from across common law jurisdictions and the European Court of Human Rights relating to actual or perceived bias. Regarding the second issue, the Court highlighted the significant dangers associated with gender stereotyping on the part of the judiciary. The Court emphasised that judges should be alive to the concerns of victims of sexual offences, specifically that gender stereotypes harm such victims and contribute to further violations of their rights. Presiding officers are obliged to ensure that the courts offer equal access to men and women. In this context, it was emphasised that it matters not only how judges conduct themselves, but also how their conduct could be perceived during a trial. A judicial officer has to be aware of the negative results of displaying condescension toward women in court. In this case, the complainant was concerned about judicial bias, corruption, and/or collusion with the accused. The decision implied that the magistrate’s conduct could have arisen from his bias against, and stereotyping of, the complainant as a complainant in a sexual offence case. The Court highlighted that the judiciary could not condone the perpetuation of “structural gender-based violence, where courts instill fear in women and girls who are victims of sexual offences, using the criminal justice system.” Therefore, in order to create a discrimination-free judicial system that victims can rely on, it is incumbent on the judiciary to remain cognisant of its own biases and stereotypes, especially in the context of victims of sexual offences, and conduct cases in a manner which counteracts such biases and stereotypes. In conclusion, the High Court ordered a retrial under a different magistrate, and that the complainant and her family be provided with the resources needed to ensure her attendance at court. The Court referred (i) the magistrate’s conduct in the trial and (ii) the wider question of gender bias among judicial officers to the Judicial Service Commission. Finally, the Court recommended that the Chief Justice, through the judiciary’s training committee, should develop training programmes to avoid a matter like this re-occurring in the future.

R. v. Banda & Others High Court of Malawi (2016)

Gender discrimination

A Fourth Grade Magistrate convicted the appellant and 18 other women for knowingly living on prostitution earnings, a misdemeanor that carries a maximum sentence of 24 months in prison. In Malawi, Fourth Grade Magistrates’ jurisdiction is limited to cases in which the maximum sentence is 12 months. This jurisdictional limit was the appellants’ first ground of appeal. Despite finding that the appellants succeeded in proving their convictions null and void due to the magistrate’s jurisdictional overreach, the appellate court found it “imperative” to address the appellants’ other arguments because of “the prevalent misuse of section 146 by law enforcement.” The appellants’ second ground of appeal was that Penal Code Section 146, the offence of a woman living on the earnings of prostitution, does not target the sex worker herself, but rather restricts women from exercising influence over the movements of sex workers for monetary gain. Section 145 of the Penal Code addresses men’s criminal behavior toward sex workers. The High Court again agreed with the appellants, concluding that Section 146 of the Penal Code was clearly aimed at targeting those who exploit sex workers, rather than a punitive measure applicable to sex workers themselves. The High Court pointed out that the lower court’s conclusion that the appellants’ convictions rested on the fact that they had booked rooms in a rest house, “conduct which was not criminal at all.” The High Court also expressed concern about how the government obtained the women’s confessions to prostitution, “especially after reading the caution statements.” As a result, the High Court held the trial and convictions of the appellants unconstitutional and predicated on discrimination against women in the sex trade. In conclusion, the judge called for Malawi to have “a frank discussion” about the fact that prostitution-related offences in Malawi “remain an area of blatant discrimination, unfairness, inequality, abuse as well as bias from law enforcement as well as the courts as evidenced in this case.”

Mwafenga v. R High Court of Malawi Criminal Division (2017)

Trafficking in persons

The appellant challenged his concurrent sentences for six violations of the Trafficking in Persons Act as manifestly excessive. The sentences ranged from 10-14 years of imprisonment including hard labor. The maximum penalty for a standard count of trafficking under article 14 of the Act is 14 years, the maximum penalty for trafficking children under 18 years is 21 years (article 15), and article 16 lists aggravating circumstances that increase the penalty for human trafficking to life imprisonment. The appellate court found that the lower court had inaccurately noted which charges corresponded with each victim, which resulted in confusing and improper sentencing decisions. First, the trial court erroneously sentenced the appellant for article 14 trafficking for Counts 1, 2, 5, and 6, but the victims were children and thus these charges should have been sentenced with reference to article 15’s 21 year maximum. In another error regarding Counts 3 and 4, the trial court found the appellant guilty of trafficking an adult of unsound mind in violation of article 16(1)(c), but the conviction should have been for article 14 trafficking of an adult because the adult victim was of sound mind. Ultimately the appellate court affirmed four of the six sentences related to trafficking children because the aggravating factors meant that those maximum penalties for were substantially longer than 14 years, rendering these sentences judicious. For the erroneous article 16 convictions, the appellate court substituted two article 14 convictions and imposed a substitute sentence of 10 years for each count to run concurrently. The court rejected the appellant’s argument that the sentences were manifestly excessive because they were well below the maximum available sentences.

Imelda Khan v. Farmers World Industrial Relations Court of Malawi (2002)

Employment discrimination, Sexual harassment, Sexual violence and rape

The applicant alleged that the respondent terminated her employment in violation of Section 57 (1) and (2) of the Employment Act, which respectively require that termination must be for a valid cause and only after the employee has had an opportunity to defend herself. In the course of her testimony, she described systemic racial discrimination, harassment, and sexual assault by her superiors in the workplace. The applicant alleged that women were frequently raped or indecently assaulted, but the employer never punished the perpetrators and there was no mechanism for complaint. The court, recognizing its lack of jurisdiction over the allegations of grave human rights abuses, used its discretionary authority to forward the decision to appropriate institutions, including the Office of the Ombudsman and the Human Rights Commission for public enquiries. This case demonstrates a non-judicial pathway for investigation into gender-based issues and the ability of the judiciary to put such efforts into motion.

R v. Soko and Another Chief Resident Magistrate's Court (2010)


The two accused persons were charged and convicted of having carnal knowledge against the order of nature –contrary to Section 153(a) of the Penal Code, which is understood to prohibit same-sex sexual relations. In the alternative, the two accused persons were charged with indecent practices between men contrary to Section 156 of the Penal Code. Both of the accused persons pleaded not guilty but were convicted of both charges and sentenced to the maximum penalty of 14 years of imprisonment including hard labor. The two accused persons had conducted a traditional engagement ceremony, or chinkhoswe. They held themselves out to be husband and wife, and the second accused person identified as a woman but the court consistently referred to her as a man. The court found that both accused committed the crimes charged. In sentencing the two accused persons to the maximum punishment available, the court cited their perceived lack of remorse and their attempt to “seek heroism […] in public, and […] corrupting the mind of a whole nation with a chinkhoswe ceremony.” The court explicitly described the sentences of 14 years imprisonment with hard labor as deterrents so that the public could be “protected from others who may be tempted to emulate their [horrendous] example.” In closing, the court stated, “let posterity judge this judgment.” According to multiple news sources (e.g., the BBC), the President of Malawi pardoned both accused persons and they were subsequently released from prison with a warning not to resume their relationship.

State v. Inspector General of Police, Clerk of National Assembly & Minister of Finance (and others ex parte) High Court of Malawi Civil Division (2020)

Custodial violence, Gender violence in conflict, International law, Sexual violence and rape

This judgment was issued as part of the assessment proceedings subsequent to a judicial review by the state. This review investigated systemic and individual failures resulting in police officers committing widespread violent and traumatic sexual assaults and rapes of women and girls during the civil unrest in October 2019. The court was tasked with assessing the amount of compensation to be awarded to the 18 applicants on whose behalf the review was conducted. The basis for this award was the previous judgment of the court that: (i) failures by the Inspector General of Police resulted in violence, torture, and inhuman and degrading treatment and punishment against the applicants in violation of section 19(3) of the Constitution; (ii) failures by the Inspector General of Police further resulted in violations of the right of applicants to dignity and equality under sections 19(1) and 20 of the Constitution; and (iii) failures by the Clerk of the National Assembly and the Malawi Police Service to investigate and prosecute the allegations of violence and rape resulted in violations of the right of access to justice under section 41 of the Constitution. The court also found numerous violations of domestic laws, including the Police Act, as well as Malawi’s obligations under human rights treaties, including CEDAW. Under section 46(4) of the Constitution, the courts have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated. The court applied the principle of restitution intergrum, or making the victim whole as they would have been prior to the violation, and turned to international precedents when evaluating appropriate amounts. The court noted that any amount should be elevated when caused by a “constitutional duty bearer,” such as the police, and that lack of investigation was an aggravating factor. The court awarded different amounts to each applicant depending on the circumstances of their particular harm, ranging from K4,500,000-10,000,000, in addition to costs.

Juma v. Republic High Court of Malawi Criminal Division (2018)

Statutory rape or defilement

The 21-year-old appellant pleaded guilty to the defilement of a 15-year-old girl with whom he had an ongoing sexual relationship and who was, by the time of the trial, pregnant as a result. The trial court sentenced the appellant to six years imprisonment with hard labor. He unsuccessfully appealed to reduce the sentence, claiming the following mitigating factors: (i) his willingness to financially support the girl and her baby; (ii) his age; and (iii) his status as a first-time offender. The court rejected this appeal on the grounds that appellate courts may only interfere with sentences that are either “manifestly excessive (or inadequate) or otherwise erroneous in principle,” citing cases in which the state had successfully enhanced initial sentences from six to eight years as evidence that this sentence was not unusually excessive or otherwise erroneous.

Kambalame v. Republic High Court of Malawi Criminal Division (2017)

Gender discrimination, Statutory rape or defilement

The appellant pleaded guilty to raping and impregnating a 12-year-old girl for which he was originally sentenced to 12 years imprisonment with hard labor. On appeal, the appellant argued that his sentence was excessive in light of mitigating factors. While recognizing the victim’s age and pregnancy as aggravating factors, the appeals court reduced his sentence to nine years imprisonment. The court articulated several rules regarding mitigation in favor of this outcome based on the citation of cases from the appellant. First, the court stated that guilty pleas should reduce a sentence by one-third, even in the case of serious crimes. Second, citing in Rep v. Bamusi Mkwapatira, the court stated that all first-time offenders, regardless of the severity of the offense, should benefit from mitigation. Finally, the court identified the appellant, who was 33 years old at the time of the offense, as “youthful,” asserting that “men especially grow slowly mentally and at 35 they are at their prime experimenting with life.” Cautioning against mitigating too significantly, however, the court explicitly recognized the victim’s pregnancy, which “disturbed [her] life […] physically and psychologically,” and her very young age as aggravating factors. Thus, the court reduced the sentence by one-quarter, resulting in a nine-year sentence, rather than one-third or more.

Archibald v. Archibald Malawi Supreme Court of Appeal (1998)

Divorce and dissolution of marriage

The appellant, a mother who shared two young children with the respondent, appealed a judgment awarding custody of the couple’s children to the respondent after their divorce. At the time of the original custody order, the children were residing with the appellant in Malawi, but the court granted custody to the respondent to raise them in England. The original order was predicated on the respondent’s assertion that while he was not presently best suited to support his children, his parents, the children’s grandparents, were available to raise the children until such time in the short-term future that respondent could acquire his own home. The lower court that issued the order appeared to favor this arrangement over the children remaining with their mother, at least in part due to her living with a new man who was unrelated to the children and with whom she had no immediate prospect for marriage. Ultimately, in the time between argument at the Supreme Court of Appeal and the Court’s decision, the parties came to a custody agreement and filed a Consent Order with the court, which obviated the issue. The Supreme Court of Appeal, however, still filed this opinion, stating that the lower court had erred and should have awarded custody to the appellant based on consistency in the lives of the children. The Supreme Court of Appeal emphasized that the lower court’s reliance on the appellant’s relationship with another man was inappropriate without evidence of harm to the children.

Kaliyati v Republic High Court of Malawi (2020)

Statutory rape or defilement

The appellant was convicted and sentenced to eight years imprisonment including hard labor for defilement of an11-month-old girl. On appeal, the appellant’s primary argument was that the testimony of the child’s mother was not sufficiently corroborated and therefore the conviction was not supported by the evidence. He also argued that the sentence was excessive. Regarding the corroboration rule in sexual violence cases, the court announced that it was a longstanding practice based on blatant discrimination against women, who are the predominant victims of such offenses and assumed to be unreliable witnesses. The court found the corroboration rule unlawful under existing constitutional (article 20), evidence, and criminal laws. Instead, the court held that courts should take caution basing convictions on uncorroborated evidence to ensure satisfaction of the burden of proof. Regarding the appellant’s arguments, the court found that there was not sufficient evidence of penetration to sustain the defilement conviction, thus acquitting the appellant of defilement. Instead, the court found that the evidence supported a conviction for the lesser offense of indecent assault, for which the court imposed a sentence of three years of imprisonment out of a maximum of 14 years. The court chose a substantially lower sentence than the maximum due to what it described as mitigating factors, including that: (i) the appellant was a first-time offender; (ii) the child was largely unharmed physically according to the medical report; (iii) there was no evidence that the child would subsequently suffer an STI or psychological impacts; and (iv) the crime was not premeditated in the court’s view, but a crime of opportunity.

Jumbo v. Banja La Mtsogolo Industrial Relations Court of Malawi (2002)

Employment discrimination, Gender discrimination, Sexual harassment

The applicant, Salome Jumbo, claimed she was dismissed as a result of her pregnancy. In 1999, the applicant started as a temporary nurse aid at a clinic and continued in that position until 2001. In 2001, the manager of the clinic assured the applicant that her job had become permanent. On April 4, 2001, the manager discovered that the applicant was pregnant. He immediately warned the applicant that he would not allow her to keep her job if she remained pregnant, as they wanted a permanent nurse aid. The manager also enquired into the applicant’s private affairs and made inappropriate sexual remarks. On June 1, 2001, the manager terminated the applicant’s employment explicitly informing her that her termination was due to her pregnancy. The applicant asked for a reference letter, but the manager refused saying that she was a temporary employee and did not deserve one. The Industrial Relations Court of Malawi (the “Court”) ruled that the termination was contrary to the spirit of the Employment Act and ordered that the clinic immediately re-instate the applicant. The Court found that the respondent specifically violated the applicant’s rights under §31(1) of the Employment Act, which requires employers to provide a reference if the employee requests one on termination of an employment contract. In addition, the respondent violated § 49 (1) of the Employment Act, which dictates that “terminating a woman’s employment because of pregnancy amount[s] to an offence [that is] punishable with a fine of K20,000 and imprisonment of five years” (p. 3). The Court also found that the manager’s inquiries into the applicant’s private affairs with her husband amounted to sexual harassment. This case is notable in Malawi because it set the precedent that inquiring into a married woman’s private affairs with her husband is an unfair labor practice.

Mwanza v. World Vision Malawi Industrial Relations Court of Malawi (2007)

Employment discrimination, Gender discrimination

The respondent employed the applicant on a fixed term contract as a data entry clerk. The applicant’s contract term was four years expiring on January 10, 2005. However, the respondent terminated her on December 22, 2003. The reason given for her termination was that she had become pregnant out of wedlock. The applicant challenged the dismissal and took legal action against the respondent. The respondent conceded that the reason for termination was invalid and asked the court to decide on a remedy. The applicant asked for reinstatement as the remedy. The Industrial Relations Court of Malawi (the “Court”) found that reinstatement was an inappropriate remedy because the applicant’s fixed contract had already lapsed in time. Instead, the Court awarded the applicant compensation for the employment benefits lost between the effective date of her termination (March 22, 2004) and the expiration of her contract (January 10, 2005). The Court cited § 63 (4) of Malawi’s Employment Act, which “provides that compensation shall be just and equitable” (p. 2). The Court awarded additional compensation to the applicant pursuant to §§ 63(5)(d), 57(3) and 49 of the Employment Act. Section 57(3) “prohibits discrimination on the basis of one’s sex, marital status or other status;” whereas, § 49 prohibits “dismissal on grounds of pregnancy (p. 3).”

Kaunda v. Tukombo Girls Secondary School Industrial Relations Court of Malawi (2007)

Employment discrimination, Gender discrimination

The applicant and her husband were both employed by the respondent as an accounts clerk and teacher, respectively. After the applicant’s husband resigned to join the Public Service, the respondent terminated the applicant’s employment contract noting that her employment was tied to her husband’s. The applicant challenged the dismissal alleging that it was invalid. The Industrial Relations Court of Malawi (the “Court”) found that the respondent discriminated against the applicant on the basis of her marital status. The Court reasoned that “the effect of the reason used by the respondent was to prevent the applicant from entering and sustaining an employment contract and pursuing a livelihood in her own right because she was married” (p. 2). In reaching its decision, the Court consulted § 5 of Malawi’s Employment Act and §§ 20, 24(1)(i), 24(2)(b) and 31 of Malawi’s Constitution. The Court held that the applicant’s termination was invalid because the reason for her termination “denied her right to engage in economic activity through employment” and “her right to fair labor practices” (p. 2). Therefore, the applicant’s termination was also prohibited under section 57(3)(a) of Malawi’s Employment Act. The Court awarded the applicant compensation for the unfair dismissal and discrimination.

Kayira v. State High Court of Malawi (2015)

Statutory rape or defilement

In 2013, the appellant was found having sexual intercourse with the victim, who was 15 years old. The next day the victim told the court that she and the appellant had been in love since June 2011 and that they had a sexual relationship. She testified that they were married and she was his second wife, but Malawi required parental permission for children aged 15-17 to marry (as of 2015, section 14 of the Marriage, Divorce and Family Relations Act requires that parties be 18 years old to marry). Malawi charged the defendant with defilement contrary to Penal Code § 138(1) and indecent assault contrary to § 137(1). Section 138(1) provides, “Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment to life” (¶ 7.1). In the lower court, the appellant pleaded not guilty arguing that the victim consented to the sexual acts and that she showed him an identification card that she had doctored to state that she was 17 years old at the time. Acknowledging that the victim had changed her year of birth on her identification, the lower court found the appellant guilty on both counts. The appellant filed two grounds of appeal asking: (i) “whether the conviction of the appellant was proper with regard . . . to the circumstances of the case;” and; (ii) “whether the sentences were manifestly excessive considering the” fact the victim had mislead the appellant with respect to her age (¶ 3.1). The High Court upheld the conviction citing the strict liability nature of the crime. The Court noted that the victim was clearly underage at the time of the sexual intercourse and rejected the defendant’s consent defense noting that “girls under the age of . . . [16] are incapable of giving consent due to immaturity (¶ 7.4).” Notwithstanding, the Court reduced the appellant’s sentence to four years for defilement and one year for indecent assault to run concurrently, noting that the appellant did not know that the victim was under age.

Phiri v. Smallholder Coffee Farmers Trust Industrial Relations Court of Malawi (2007)

Employment discrimination, Sexual harassment, Sexual violence and rape

The applicant, was a security guard. She was employed on a fixed term renewable contract, renewable upon satisfactory performance. On December 26, 2005, near the end of her employment term, one of the applicant's colleagues attacked her and attempted to rape her, only stopping after being apprehended when she shouted for help. The applicant reported the incident to her employer’s management, which convened a hearing. During the hearing, the company’s human resources representative accused the applicant of misconduct and embarrassing the company by discussing the attempted rape, which the company considered to be an "inside thing." On December 31, 2005, the company fired the applicant, citing the expiring fixed term contract for support. The applicant brought her case to the Industrial Relations Court of Malawi (the “Court”). Calling it "a case of the worst forms of unfair labour practices," the Court found that (i) the applicant had reason to believe that the company would renew her contract and (ii) that their refusal to do so was based on the attempted rape incident. According to the Court, the company’s actions breached an implied term of the plaintiff’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees from sexual harassment and abuse. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment, other than reading § 5 of the Employment and Labor Relations Act with § 20 of Malawi’s Constitution, which prohibit unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that sexual harassment creates a hostile work environment, leads to unfair labor practices, and thus constitutes discrimination based on sex. Therefore, the Court found the plaintiff's dismissal invalid and held that the company violated her “right to fair labor practices, the right to work, her right to safe working environment and personal dignity.” The Court considered remedies, finding that compensation in the form of 57 months' salary was appropriate, noting that the first-choice remedy in unfair dismissal cases, reinstatement, was not acceptable in this case because of the egregious conduct of the company's human resources representative.

The Republic v. Banda, et al. High Court of Malawi (2016)

Gender discrimination, Trafficking in persons

On February 23, 2016, 19 women were arrested by police and jointly charged “for the offence of living on the earnings of prostitution” in violation of § 146 of the Penal Code of Malawi (the “Penal Code”) ( ¶ 1.1). A Fourth Grade Magistrate in Dedza convicted them “on their own plea of guilt” and fined them MK 7,000.00 each (¶ 1.2). The police lacked evidence to prove the charge against them. In addition, the women did not have legal representation during the proceedings, including when their guilty plea was recorded. The women challenged the conviction on July 28, 2016 on numerous grounds including (i) that the Fourth Grade Magistrate did not have jurisdiction, (ii) that the women were charged together when they should have been charged separately, (iii) that the High Court should not have accepted a unanimous plea, (iv) that “the charge was wrong in law as living on the earnings of prostitution does not target the sex worker herself” but those who live parasitically and exploitatively off her earnings, and (v) that the plea of guilty should not be accepted because the court did not comply with mandatory procedures regarding the defendants’ knowledge. The High Court found that the Fourth Grade Magistrate did not have jurisdiction to hear the case. In addition, the Court held that the arrest of the women was unconstitutional and not based on evidence. Citing the legislative history of the offense, the Court clarified that § 146 of the Penal Code did not criminalize sex work but was mainly intended to protect sex workers from those who would exploit them. The High Court held that even though sex workers may be arrested in circumstances under this section, the arrest must be properly supported by evidence. Consequently, the High Court vacated the convictions and ordered that fines be repaid to the women.

Kamwendo v. Republic High Court of Malawi (2004)

Sexual violence and rape

The accused was convicted of rape and sentenced to a custodial term of imprisonment of 18 months. He appeals on the grounds that the lower court erred in convicting him in contradiction of the Medical Report that found it was a fabricated rape. The Court dismissed the appeal finding that the complainant's story was corroborated by the evidence and did not therefore require the Medical Report's corroboration as well and also that the Medical Report is not to be taken as conclusive evidence of penetration. The evidence also showed that the intercourse the appellant had with the complainant was non-consensual because the consent was fraudulently obtained. After this decision, the Malawi High Court banned the corroboration rule in sexual violence cases in Republic v Kaliyati.

Republic v. Chiledzelere High Court of Malawi (2007)

Gender-based violence in general, Sexual violence and rape

The accused was convicted of attempted rape and sentenced to five years imprisonment with hard labor for accosting the complainant and assaulting her with the intent to have intercourse with her before he was prevented from doing so by the arrival of the witness. The appeal was dismissed because the accused's actions in fondling the complainant and tearing her underwear provided clear evidence of his intent. The sentence was upheld because of the aggravating factors that the accused was told that the complainant was a married woman and the traumatic effect of the tearing of the woman's underwear. [Note: International legal standards do not discriminate on the basis of marital status in determining the gravity of a rape.]

Republic v. Hwangwa High Court of Malawi (2008)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of defiling a 12-year-old girl and appealed the conviction on the grounds that the intercourse was consensual and that he believed the complainant was older than 12 years at the time. The Court dismissed the appeal and noted that the evidence was sufficient to prove a lack of consent but also that, at 12 years old, the complainant was too young to give consent. The Court also noted aggravating factors, including that the appellant had intercourse with the complainant on multiple occasions and the appellant had threatened the complainant against telling her parents.

Republic v. Makaluni High Court of Malawi (2002)

Sexual violence and rape

The accused was convicted of rape and sentenced to four years' imprisonment. The sentence was appealed by the judge who reviewed the lower court's decision because the reviewing judge found the sentence inadequate. The Court upheld the sentence, stating that it was not so excessively inadequate as to merit interference and taking note of the factors used in determining sentences for rape offenders: violence used to commit the rape, a repeated rape, a carefully planned rape, whether the defendant has previous convictions for rape or other serious offenses, whether the victim was subjected to any further sexual indignities, whether the victim was very young or very old, and the physical and mental effects upon the victim. The factors to warrant a harsher sentence were not judged to be present in this case, and the sentencing judge's decision was within his discretion.

Republic v. Mzungu High Court of Malawi (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with defilement for having unlawful carnal knowledge of a girl under 13 years of age. The trial court convicted him of indecent assault because there was no penetration. He appealed his conviction for indecent assault because it was not included in the original charge. He also argued that his sentence was excessive. The Court dismissed the appeal of the conviction on the grounds that where the evidence is sufficient to sustain the lesser charge of indecent assault but may not be sufficient for defilement, the accused may be convicted of the lesser crime even when it was not included in the original charge. However, the Court upheld the appeal of the sentence and lowered it, despite of the fact that women and girls need to be protected, taking into account the mitigating factor of the appellant's youth.

Republic v. Peter High Court of Malawi (2008)

Statutory rape or defilement

The appellant was found guilty of defiling a girl under 13 years of age and appealed on the grounds that the sentence is excessive and that his taking care of his grandparents should be considered as a mitigating factor. The complainant had since been diagnosed with a sexually transmitted infection and medical examinations revealed multiple instances of sexual abuse. The appellant testified that neither he nor his wife had a sexually transmitted infection, but the Court did not find this claim persuasive because neither of them had been tested (neither took the initiative to be tested and the government could not force them to be tested). The Court dismissed the appeal and upheld the sentence, considering the harm done to the complainant in infecting her with a sexually transmitted infection.

Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.


Gender Equality Act (2014)

Abortion and reproductive health rights, Employment discrimination, Harmful traditional practices, Sexual harassment

The Gender Equality Act promotes gender equality for men and women in all parts of society, and seeks to prohibit and provide redress for sex discrimination, harmful practices (including social, cultural, or religious practices that are physically or sexually harmful) and sexual harassment. Under the Act, persons (and the government) are prohibited from treating people less favorably than they would otherwise due to sex. The law defines and criminalizes sexual harassment, including workplace harassment. Moreover, the law places an affirmative obligation on the government to ensure that employers are developing appropriate procedures and policies to respond to and eliminate issues of workplace sexual harassment. The law also ensures equal access to education at all levels regardless of sex, and affirmatively requires the government to provide equal access. Further, the law provides an affirmative right to sexual and reproductive health, including access to health services and the right to choose whether or not to have a child. A Human Rights Commission in Malawi is tasked with the enforcement of this law, including gender-based quotas for membership on Commission. The penalties for violating the Act include large fines and imprisonment of up to five years.

Constitution of Malawi (2017)

Domestic and intimate partner violence, Employment discrimination, Forced and early marriage, Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

In recognition of the inherent dignity and worth of each human, Article 12 requires that the State and all persons recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups, and minorities. All persons have equal status before the law. Limitations of rights are only justifiable insofar as they ensure peaceful human interaction in the context of an open and democratic society. Article 13 requires the State to actively promote the welfare and development of the people by affirmatively adopting legislation and policies to achieve gender equality. This requires: (i) women’s full participation in all spheres of society with opportunities equal to men; (ii) the implementation of nondiscrimination principles and other measures; and (iii) the implementation of policies addressing domestic violence, personal security, maternity benefits, economic exploitation, and rights to property, among other relevant social issues. Article 22 mandates that all members of a family shall enjoy equal respect and shall be protected under law against all forms of neglect, cruelty or exploitation. No person shall be forced to enter into any marriage, and no person over the age of 18 can be prevented from entering into marriage. All provisions of this section apply to civil, customary, and other forms of marriage. Article 24 specifically guarantees that women are entitled to full and equal protection of law, and have the right not to be discriminated against on the basis of gender or marital status. This includes the following rights: (i) equal rights under civil law, including equal capacity in the realms of contracts, property, custody, decision-making regarding children, and acquisition and retaining of citizenship and nationality; and (ii) upon the dissolution of marriage, entitlement to fair disposition of jointly held property and to fair maintenance. Further, any laws that discriminate against women are invalid and legislation must affirmatively be passed to eliminate customs and practices that discriminate against women. This affirmative requirement particularly applies to practices of: sexual abuse, harassment, or violence; discrimination in work, business, or public affairs; and deprivation of property (inherited or otherwise). Article 30 provides that, while all persons have a right to the enjoyment of economic, social, cultural and political development, women in particular shall be given special consideration in regards to this right. The State must take all necessary measures for the realization of this right, including reforms aimed to eradicate social injustice and inequality. Other gender-related provisions include: the prohibition of torture, inhumane, and degrading treatment or punishment (Article 19); Article 20’s ban on all forms of discrimination; the right to education for all people (Article 25); Article 27’s prohibition of slavery, servitude, and forced labor; and Article 31’s requirement that all persons are entitled to fair wages and equal remuneration for equal value work without discrimination of any kind, especially on the basis of gender.

Trafficking in Persons Act (2015)

Abortion and reproductive health rights, Trafficking in persons

The Trafficking in Persons Act provides for the prevention and elimination of human trafficking, in addition to establishing the National Coordination Committee against Trafficking in Persons which serves to coordinate and manage related issues in Malawi (the “Committee”). The Act applies to offenses committed at least partly in Malawi (or in contemplation of committing a crime inside Malawi), committed by a citizen of Malawi, or involving the trafficking of a citizen of Malawi. The Committee is responsible for coordinating and overseeing investigations and prosecutions under the Act, as well as formulating policy, educational programming, and recommendations with Malawi on the topic, amongst other responsibilities. The Act provides the Committee with affirmative responsibilities to trafficked persons, including access to adequate health care and shelter, protection from discrimination, and legal support. The Act criminalizes the trafficking of other persons, punishable up to 14 years of imprisonment. The Act provides a list of aggravating factors that can extend the punishment by life imprisonment, including if a trafficked person becomes pregnant or is forced to terminate a pregnancy. There are additional penalties associated with trafficking in children, including a maximum sentence of 21 years imprisonment, as well as for benefiting from exploitation or trafficking and providing support for trafficking offenses. The Act further regulates international transportation organizations, and provides specialized investigatory and judicial mechanisms for the enforcement of the Act.