Malawi

Malawi is a landlocked state in southern central Africa, a former British colony, with an estimated population of 17.5 million people, from several tribal groupings.¹https://malawi.unfpa.org/sites/default/files/resource-pdf/2018%20Malawi%20Population%20and%20Housing%20Census%20Main%20Report%20%281%29.pdf Constitutionally, it has been a multi-party democracy since 1994.

According to the 2018 Malawi Population and Housing Census, 67.4% of the population identify as Christian, 13.8%as Muslim, and 5.6% identified as belonging to other religions, whilst 2.1% of the population identified that they had no religion.²https://malawi.unfpa.org/sites/default/files/resource-pdf/2018%20Malawi%20Population%20and%20Housing%20Census%20Main%20Report%20%281%29.pdf

Constitution and government

Article 33 of the Constitution³https://www.constituteproject.org/constitution/Malawi_2017.pdf?lang=en states that “Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.”

These rights are generally respected by the government.⁴http://www.sdnp.org.mw/constitut/brfindx.html

Article 68 of the Constitution reserves 32 out of 80 seats in the Senate for various sectors of society including (1.c.iii) representatives of “religion, who shall include representatives of the major religious faiths in Malawi”, apparently to the exclusion of representatives of secular worldviews and minority religious groups.⁵http://www.sdnp.org.mw/constitut/chapter6.html

Education and children’s rights

Religious instruction is mandatory in public primary schools as part of Religious and Moral Education, and is available as an elective in public secondary schools as Bible Knowledge.⁶https://www.state.gov/wp-content/uploads/2021/05/240282-MALAWI-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf In some schools, the religious curriculum is a Christian-oriented “Bible knowledge” subject, while in others it is an interfaith “Moral and Religious Education” subject drawing from the Christian, Islamic, Hindu, and Baha’i faiths.⁷ Mkhutche, W. (2021). Humanism and Politics in Malawi; Short Essays, Lilongwe: Wissen Books.
At grant-aided schools, a board appointed by the school’s operators decides whether the “Bible knowledge” or the “Moral and Religious Education” curriculum will be used.⁸https://www.state.gov/reports/2016-report-on-international-religious-freedom/malawi/

According to media reports, religious conflicts often arise related to locally promulgated school dress codes, prescribing a particular uniform and appearance that did not allow female students to wear the hijab. The conflicts most often arise when religious schools that receive government money turn students away in violation of national policy.⁹https://www.state.gov/wp-content/uploads/2021/05/240282-MALAWI-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf The reports state that some religious school leaders believe, erroneously, that religious schools can make their own policies; in fact, only if they are fully private and receive no government funds can they do so.¹⁰https://www.state.gov/wp-content/uploads/2021/05/240282-MALAWI-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf On 18 September 2020, a Joint Technical Team was established under the guidance of the Public Affairs Committee comprising seven Muslims and seven Christians to engage in dialogue on general dress codes in schools.¹¹https://www.state.gov/wp-content/uploads/2021/05/240282-MALAWI-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf On 28 October, a group of Muslim individuals set fire to the office of the head teacher of a primary school in a majority-Muslim district after he turned away a female student wearing the hijab.¹²https://www.state.gov/wp-content/uploads/2021/05/240282-MALAWI-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf

In addition to this, Muslim organizations continue to request that the education ministry discontinue use of the optional “Bible knowledge” course and use only the broader-based “moral and religious education” curriculum in primary schools, particularly in predominantly Muslim areas.¹³https://www.state.gov/wp-content/uploads/2021/05/240282-MALAWI-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf According to Alhaji Twaibu Lawe, the Muslim Association of Malawi secretary general, the issue arises most frequently in grant-aided, Catholic-operated schools.¹⁴https://www.state.gov/wp-content/uploads/2021/05/240282-MALAWI-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf

Malawi has ratified most international conventions on child labour. However, a recent report criticizes the use of child labor in the tobacco industry and the trafficking of children to fish in Tanzania.¹⁵http://206.155.102.64/country,,,,MWI,,560e3e640,0.html

Family, community and society

Malawi continues to experience violations against Persons with Albinism with cases of killings and abductions of boys and girls, men and women.¹⁶https://africa.unwomen.org/en/where-we-are/eastern-and-southern-africa/malawi

Witchcraft

Belief in witchcraft in Malawi has led to a number of mob attacks on people accused of the act in recent years. This continues to happen at an alarming rate with the elderly¹⁷https://www.dandc.eu/en/article/many-people-malawi-believe-witchcraft-causes-death and children¹⁸https://www.academia.edu/6200581/Child_Witchcraft_Accusations_in_Southern_Malawi being the primary victims. Reports indicate that in 2019 alone, at least 66 people were killed over accusations of witchcraft.¹⁹https://www.nyasatimes.com/csos-appeal-for-swift-investigations-into-salima-witchcraft-killing-urge-chakwera-to-do-more-than-ratifying-elderly-protocol/ The Centre for Human Rights and Rehabilitation (CHRR) and the Centre for the Development of People in Malawi issued a joint statement in April 2021 which noted that “they are dismayed by the continued attacks on people accused of witchcraft in the country and the failure to bring to justice perpetrators of such crime”.²⁰https://www.nyasatimes.com/csos-appeal-for-swift-investigations-into-salima-witchcraft-killing-urge-chakwera-to-do-more-than-ratifying-elderly-protocol/; Mkhutche, W. (2021). Humanism and Politics in Malawi; Short Essays, Lilongwe: Wissen Books.

Though Christianity is the largest religion in the country, many conventional rituals are still practiced. For example, some Christian men in Malawi practice polygamy despite many Christian churches preaching against it. This practice has been linked to the prevalence of HIV/AIDS. However, the Malawian justice system does not provide protection to women who were infected by their spouses.²¹http://thewip.net/2013/04/10/kheliwes-story-male-polygamy-and-hiv-infection-in-malawi/ The rise in rape cases has also been blamed on superstition.²²https://4state.news/superstition-blamed-for-rise-in-malawi-rape-cases/

Humanists Malawi challenges witchcraft as an un-evidenced superstition often resulting in abuse and persecution for those accused of “witchcraft”. The organization secured funding to run a large project, protecting “witchcraft’s” true victims: those accused of being “witches”. Humanists Malawi researches cases of witchcraft-based violence and in particular has worked to highlight the role of police in upholding or undermining the human rights of those accused of witchcraft.²³http://nyasatimes.com/2013/08/15/anti-god-activist-thindwa-urges-police-to-enforcelaws-on-witchcraft/

LGBTI+ Community

The United Nations Human Rights Committee during its last review of Malawi in 2014, highlighted a number of issues for Malawi to rectify, such as the criminalization of consensual adult same-sex sexual conduct, violence against lesbian, gay, bisexual and transgender persons, stigma and discrimination in access to health care services and responsibilities of the Malawi Human Rights Commission.²⁴https://www.hrw.org/news/2021/02/25/human-rights-watch-submission-republic-malawi-un-human-rights-committee

In 2018, Human Rights Watch documented the impact of Malawi’s Penal Code²⁵https://acjr.org.za/resource-centre/Malawi_penal_code_pdf_14611.pdf criminalizing consensual same-sex relations and found that the punitive legal environment combined with social stigma allows police abuse to go unchecked and prevents many lesbian, gay, bisexual, and transgender (LGBTI+) people from reporting violence or accessing health care services.²⁶https://www.hrw.org/news/2021/02/25/human-rights-watch-submission-republic-malawi-un-human-rights-committee

Chapter XV of the Penal Code, on “Offences Against Morality,” contains several provisions that criminalize adult consensual same-sex conduct. Section 153 provides that any person found guilty of committing an “unnatural offence /offence against the order of nature” is liable to 14 years in prison, with or without corporal punishment. Section 154 punishes attempted unnatural offences with seven years’ imprisonment, and section 156 punishes “gross indecency” between males with five years in prison, with or without corporal punishment. While these laws date back to British colonialism, former president Bingu wa Mutharika’s government enacted a new anti-homosexuality law in January 2011, amending the Penal Code to extend the crime of “gross indecency” to women.²⁷https://www.hrw.org/news/2021/02/25/human-rights-watch-submission-republic-malawi-un-human-rights-committee Section 137A of the amended Penal Code provides that 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.

A constitutional review of section 153(a) of the Penal Code (referenced above), initiated in September 2013 before the High Court in Lilongwe, is still delayed on procedural grounds over eight years later, but remains a potential a path to decriminalizing consensual same-sex conduct in the country.²⁸https://www.hrw.org/news/2021/02/25/human-rights-watch-submission-republic-malawi-un-human-rights-committee

LGBTI+ people face routine violence and discrimination in almost all aspects of their daily lives.²⁹https://www.hrw.org/report/2018/10/26/let-posterity-judge/violence-and-discrimination-against-lgbt-people-malawi Police often physically assault, arbitrarily arrest and detain them, sometimes without due process or a legal basis, at other times as punishment for simply exercising basic rights, including seeking treatment in health institutions.³⁰https://www.hrw.org/report/2018/10/26/let-posterity-judge/violence-and-discrimination-against-lgbt-people-malawi

The challenges facing LGBTI+ people in Malawi have been further exacerbated by the lack of clarity and divergent opinions regarding the legality of a moratorium on arrests and prosecutions for consensual same-sex conduct acts, issued in 2012 by justice minister, Samuel Tembenu.³¹https://www.hrw.org/news/2021/02/25/human-rights-watch-submission-republic-malawi-un-human-rights-committee In December 2015, the minister reaffirmed the moratorium but in 2016, Christian religious leaders were successful in getting the Mzuzu High Court to issue an order suspending the moratorium pending judicial review by the Constitutional Court.³²https://www.hrw.org/news/2021/02/25/human-rights-watch-submission-republic-malawi-un-human-rights-committee This uncertainty encourages private individuals to attack LGBTI+ people with impunity, while health providers frequently discriminate against them on the grounds of sexual orientation.³³https://www.hrw.org/news/2021/02/25/human-rights-watch-submission-republic-malawi-un-human-rights-committee

Women’s rights

Major human rights violations occur against women in Malawi, including: violence against women and girls, with heightened vulnerability in humanitarian crises; lack of information on sexual and reproductive health and rights or access to these services, especially for young people; lack of educational advancement leading to economic opportunities, especially for girls; discrimination against marginalized populations, such as sex workers; and harmful traditional practices affecting women and girls, such as child marriage.³⁴https://malawi.unfpa.org/en/topics/human-rights-and-gender-equality-2

Half of the girls in Malawi marry before they turn 18 years old.³⁵https://www.hrw.org/news/2017/08/07/sadc-recommit-human-rights-protection;https://data.unwomen.org/country/malawi The adolescent birth rate is 137.6 per 1,000 women aged 15-19 as of 2015, up from 135.9 per 1,000 in 2014.³⁶https://data.unwomen.org/country/malawi In 2016, 24.3% of women aged 15-49 years reported that they had been subject to physical and/or sexual violence by a current or former intimate partner in the previous 12 months.³⁷https://data.unwomen.org/country/malawi Evidence suggests that 42% of married women have experienced spousal violence.³⁸https://data.unwomen.org/country/malawi

Abortion is illegal in Malawi in all circumstances except if the mother’s life is at risk, offenders face up to 14 years imprisonment. In June 2021, Malawi’s parliament withdrew an abortion bill from debate following opposition to the proposal to liberalize the country’s law to include circumstances of rape and incest.³⁹https://www.voanews.com/a/africa_malawi-parliament-withdraws-abortion-rights-bill-after-objections/6207221.html; https://reproductiverights.org/high-court-of-malawi-clarifies-law-on-abortion/ The withdrawal of the measure from consideration comes three months after lawmakers unanimously rejected a motion to debate the Termination of Pregnancy Bill.⁴⁰https://www.voanews.com/a/africa_malawi-parliament-withdraws-abortion-rights-bill-after-objections/6207221.html; https://reproductiverights.org/high-court-of-malawi-clarifies-law-on-abortion/ The bill has been strongly opposed by anti-abortion groups, many citing religious grounds, which urged lawmakers not to debate the issue.⁴¹https://www.voanews.com/a/africa_malawi-parliament-withdraws-abortion-rights-bill-after-objections/6207221.html The Episcopal Conference of Malawi, the Evangelical Association of Malawi, Malawi Council of Churches and the Muslim Association of Malawi have long resisted any attempt to change the law.⁴²https://www.theguardian.com/global-development/2021/feb/25/malawi-mps-debate-bill-to-liberalise-abortion-laws-as-churches-oppose Henry Saindi, secretary general of the Episcopal Conference, said: “It is only God who can give or take life irrespective of whatever circumstance that has happened. Human life remains sacred and it must be preserved, promoted and defended. The bill does not reflect our values, our culture and our aspirations as the nation.”⁴³https://www.theguardian.com/global-development/2021/feb/25/malawi-mps-debate-bill-to-liberalise-abortion-laws-as-churches-oppose

A joint study by Malawi’s College of Medicine and the U.S.-based Guttmacher Institute⁴⁴https://www.guttmacher.org/news-release/2017/clandestine-and-unsafe-abortion-common-malawi# reveals more than 140,000 backstreet abortions take place illegally every year in Malawi (a rate of 38 abortions per 1,000 women of reproductive age) and 12,000 deaths result.⁴⁵https://www.voanews.com/a/africa_malawi-parliament-withdraws-abortion-rights-bill-after-objections/6207221.html Between 6% and 18% of maternal deaths in Malawi are estimated to be the result of complications from unsafe abortion.⁴⁶https://www.theguardian.com/global-development/2021/feb/25/malawi-mps-debate-bill-to-liberalise-abortion-laws-as-churches-oppose There is a one in 29 chance that a 15-year-old girl in Malawi will eventually die from a pregnancy-related condition.⁴⁷https://www.guttmacher.org/news-release/2017/clandestine-and-unsafe-abortion-common-malawi# One of the most recent is the death of a 14-year-old girl in central Malawi in May 2021 after she took an herbal concoction in an attempt to terminate a five-month pregnancy.⁴⁸https://www.voanews.com/a/africa_malawi-parliament-withdraws-abortion-rights-bill-after-objections/6207221.html

Arbitrary arrests

Arbitrary arrests and detentions are common. Defendants are entitled to legal representation under Articles 41-43 of the Constitution, but in practice they are frequently forced to represent themselves in court. Although the law requires that suspects be released or charged with a crime within 48 hours of arrest, these rights are often denied.⁴⁹https://freedomhouse.org/country/malawi/freedom-world/2020 Case backlogs contribute to lengthy pretrial detention; those awaiting trial make up about 18 percent of the prison population.⁵⁰https://freedomhouse.org/country/malawi/freedom-world/2020

Freedom of expression, advocacy of humanist values

Freedom of expression is guaranteed under Articles 34 and 35 of the Constitution. Citizens are typically free to express their personal views without fear of surveillance or retribution. However, many Malawians do not feel comfortable criticizing the government and engage in self-censorship.⁵¹https://freedomhouse.org/country/malawi/freedom-world/2020 This self-censorship is encouraged by Article 181 of the Penal Code, which notes that “every person who in public places conducts himself in a manner likely to cause a breach of the peace shall be liable to a fine of K50 and to imprisonment of three months”.

The Electronic Transactions and Cybersecurity Act of 2016⁵²https://malawilii.org/mw/legislation/act/2016/33 places restrictions on online communications to “protect public order and national security”. The law also penalizes “offensive communication” via online platforms with fines of Malawian Kwacha (MWK) 1,000,000 (USD 1,352) or a maximum 12 months prison sentence. Moreover, Section 4 of the Protected Flag, Emblems and Names Act 2012⁵³https://www.malawilaws.com/alphabetical-list-of-statutes/chapter-18-03protected-flag-emblems-and-names makes it an offence to “do any act or utter any words or publish or utter any writing calculated to insult, ridicule or to show disrespect” to the President, the national flag, armorial ensigns, the public seal or any other protected emblem or likeness. The Penal Code penalizes sedition (punishable with a fine of up to MWK 354, 845 – USD Dollars 480 – and imprisonment of five years for first time offenders and seven years for subsequent offences), and libel (up to two years imprisonment).

Civil society leaders have expressed suspicions that the government monitors their electronic communications using new technology that was introduced in 2017.⁵⁴https://freedomhouse.org/country/malawi/freedom-world/2020

Freedom of the press is legally guaranteed under Article 36 of the Constitution and traditionally respected in practice. However, news outlets have experienced intimidation and undue regulatory interference in recent years. In June 2019, the Malawi Communications Regulatory Authority imposed an indefinite suspension on call-in radio programs, citing concerns that they would instigate violence in the context of post-election protests.⁵⁵https://freedomhouse.org/country/malawi/freedom-world/2020 The High Court lifted the ban in September after the Malawi chapter of the Media Institute of Southern Africa—in collaboration with local broadcasters—argued that it violated freedom of expression.⁵⁶https://freedomhouse.org/country/malawi/freedom-world/2020

Blasphemy

The Penal Code of Malawi criminalizes insult to religion⁵⁷https://www.uscirf.gov/sites/default/files/2020%20Blasphemy%20Enforcement%20Report%20_final_0.pdf under “Chapter XIV: Offenses Relating to Religion”; such offenses are punishable by a one-year prison sentence.

Article 127: Insult to religion of any class:

“Any person who destroys, damages, or defiles any place of worship or any object that is held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons, or with the knowledge that any class of persons is likely to consider such destruction, damage, or defilement as an insult to their religion, shall be guilty of a misdemeanor.”

Article 129: Trespassing on burial places:

“Every person who with the intention of wounding the feelings of any person or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or in any place of sepulture or in any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the purpose of funeral ceremonies, shall be guilty of a misdemeanor.”

Article 130: Writing or uttering, words with intent to wound religious feelings:

“Any person who, with the deliberate intention of wounding the religious feelings of any other person, writes any word, or any person who, with the like intention, utters any word or makes any sound in the hearing of any other person or makes any gesture or places any object in the sight of any other person, shall be guilty of a misdemeanor and shall be liable to imprisonment for 1 year.”

Only one case has been found by USCIRF,⁵⁸https://www.uscirf.gov/sites/default/files/2020%20Blasphemy%20Enforcement%20Report%20_final_0.pdf otherwise, no records could be found for the use of these Articles.⁵⁹https://end-blasphemy-laws.org/countries/africa-sub-saharan/malawi/

Discrimination against atheists and humanists

In May 2021, award-winning Malawian poet Robert Chiwamba⁶⁰https://en.unesco.org/global-mil-week-2019-feature-conference/robert-chiwamba produced a poem in which he called atheists ‘fools’.⁶¹https://www.nyasatimes.com/robert-chiwambas-atheists-are-fools-poem-raps-humanists/ In the poem, he quoted Psalms 14:1 which says “the fool hath said in his heart, there is no God. They are corrupt, they have done abominable works, there is none that doeth good”.⁶²https://www.nyasatimes.com/robert-chiwambas-atheists-are-fools-poem-raps-humanists/ According to media reports, Chiwamba has been known to use the bible to attack other groups, such as the LGBTI+ community.

Attacks against human rights defenders and political opposition

There have been numerous reports of the Malawi police attacking human rights defenders and political opposition in the country.

On 30 August 2018, five unidentified individuals invaded the Center for Human Rights and Rehabilitation (CHRR) offices and severely beat a security guard (who sustained two broken front teeth) before trying to petrol-bomb the offices.⁶³https://www.hrw.org/news/2018/10/15/joint-letter-calling-investigation-attack-chrr-and-other-human-rights-defenders As of 2019 (the most recent reports available) the police had not indicated any progress in investigations since the filing of the complaint by a CHRR staff member.⁶⁴https://www.hrw.org/news/2018/10/15/joint-letter-calling-investigation-attack-chrr-and-other-human-rights-defenders; https://www.amnesty.org/en/latest/press-release/2019/08/malawi-human-rights-defender-survives-petrolbomb-attack-car-burned-to-ashes/

In two other incidents in 2018, unknown individuals sent death threats to Youth and Society Director Charles Kajoloweka, and in August 2018, unidentified attackers in Mangochi torched a vehicle belonging to opposition legislator Agness Nyalonje of the United Transformation Movement (UTM). The arson attacks took place ahead of a planned rally by the opposition UTM.

More recently, in August 2020, the home of the Malawi Human Rights Defenders Coalition (HRDC) chair Timothy Mtambo was attacked with gasoline bombs.⁶⁵https://freedomhouse.org/country/malawi/freedom-world/2020 In September 2020, ruling party youth cadres reportedly hacked HRDC leader Billy Mayaya and four others with machetes, leaving them with serious injuries.⁶⁶https://freedomhouse.org/country/malawi/freedom-world/2020 In October 2020, Mtambo was shot multiple times in Lilongwe.⁶⁷https://freedomhouse.org/country/malawi/freedom-world/2020

Human rights defenders often complain that the police treat their complaints with indifference and take no action to carry out investigations.⁶⁸https://www.hrw.org/news/2018/10/15/joint-letter-calling-investigation-attack-chrr-and-other-human-rights-defenders