Submission to the Universal Periodic Review of Malawi

Introduction 

This submission highlights Human Rights Watch’s concerns about Malawi’s compliance with its international human rights obligations, and its implementation of recommendations received during previous Universal Periodic Reviews (UPR) in 2014 and 2020. The submission focuses on problems related to refugee rights, older people’s rights, sexual orientation and gender identity, rights of women and girls, right to health, and freedom of expression. 

Refugee Rights

Malawi is party to the 1951 United Nations Refugee Convention, the 1969 African (OAU) Refugee Convention, and the Convention on the Rights of the Child, which applies to refugee children (art. 22). The 1951 Refugee Convention recognizes the right of freedom of movement and choice of residence for refugees lawfully within a country (art. 26) and prohibits restrictions on the freedom of movement of asylum seekers unless such restrictions are deemed “necessary” (art. 31.2). However, Malawi entered reservations when it ratified the 1951 Convention, stating that it considered certain provisions “not legally binding,” including refugees’ rights to freedom of movement, employment, property, and public education. 

Malawi’s domestic legal framework reflects these reservations, and refugees face restrictions on access to social services, employment, and freedom of movement. Malawi’s Refugee Act of 1989 provides for procedures to determine refugee status but does not address the rights of refugees. 

In 2018, Malawi endorsed the UN Global Compact on Refugees, which recognizes the importance of integrating refugees into the population and respecting their socioeconomic rights, including access to education and labor markets. During the 2019 Global Refugee Forum, Malawi pledged to pursue “legal and policy” reforms toward lifting some of its reservations to the 1951 Refugee Convention, including on freedom of movement and access to public schools and employment. As of February 2025, Malawi had not yet implemented the promised reforms.

In March 2023, the government issued a directive to enforce its encampment policy, which requires refugees and asylum seekers to live in Dzaleka refugee camp. The camp was already severely overcrowded and unable to meet the food, health, water, shelter, and sanitation needs of its existing population. The government ordered all refugees and asylum seekers living in urban and rural areas to return to the camp by April 15, 2023, or face enforced relocation. In May 2023, authorities started detaining and forcibly relocating refugees and asylum seekers from across the country. The police and military arrested men, women, and children living in rural and urban districts, shut down their businesses, temporarily detained them in prisons, and later left them empty-handed at Dzaleka camp. Some of those arrested reported beatings and destruction or theft of their property.

Children were among those caught up in the sweeps and taken to a maximum-security prison in Lilongwe, the country’s capital. International human rights standards hold that immigration-related detention is never in the best interest of the child and should be prohibited due to its harmful impacts. 

Government officials have also accused refugees of creating economic problems for Malawians, rhetoric that fosters xenophobia.

In November 2023, the government ordered a refugee rights group, INUA Advocacy, to vacate Dzaleka camp, where the group had been providing independent scrutiny of the human rights situation.

Recommendations

• Lift reservations to the 1951 Refugee Convention, which are incompatible with international human rights and refugee law standards.
• Make the necessary legal and policy amendments to 1) end the refugee encampment policy so that refugees are no longer required to live in Dzaleka camp indefinitely, and 2) enshrine refugees’ rights to freedom of movement, work, and education.
• Collaborate with local and international rights organizations and ensure their access to Dzaleka refugee camp.
• Avoid or minimize use of force when enforcing immigration regulations.

Sexual Orientation and Gender Identity 

When the UN Human Rights Committee reviewed Malawi’s civil and political rights record in July 2014, the Centre for the Development of the People (CEDEP) and the Centre for Human Rights and Rehabilitation (CHRR) submitted a shadow report calling for decriminalization of adult consensual same-sex conduct and the prohibition of discrimination on the grounds of sexual orientation. 

The Human Rights Committee, in concluding observations issued in August 2014, expressed concern about the criminalization of same-sex conduct in Malawi and related forms of discrimination and violence based on sexual orientation, gender identity and sex characteristics, and the fact that stigma impedes access to healthcare services for lesbian, gay, bisexual, transgender and intersex (LGBTI) people. Malawi also noted recommendations in 2020 from Australia,[1] Canada,[2] France,[3] Ireland,[4] Italy,[5] New Zealand,[6] Norway,[7] Spain[8] and the United States[9] to decriminalize consenting relations between persons of the same sex and the recommendations presented by the Netherlands to “repeal sections 137A, 153, 154 and 156 of the Penal Code and develop comprehensive legislation that prohibits any discrimination on the basis of sexual orientation or gender identity,” [10]

In June 2024, Malawi’s Constitutional Court rejected a legal challenge to the penal code that makes same-sex conduct a criminal offense. The three-member judicial panel dismissed an application from Jan Willen Akster, a Dutch citizen, and Jana Gonani, a trans woman and sex worker, challenging the constitutionality of Penal Code sections 153, 154, and 156. These sections criminalize anyone who has “carnal knowledge” of any person “against the order of nature,” attempts to commit an “unnatural offence” or undertakes “indecent practices.” These provisions are vague and overly broad, facilitating anti-LGBT discrimination, and can result in sentences of up to 14 years’ imprisonment.

The court’s decision exacerbates risks of arbitrary arrests and prosecutions, physical violence, and discrimination against LGBT people in Malawi, as Human Rights Watch has long documented. There is further risk that LGBT people will be excluded from access to health care, justice, and security.

Several LGBT individuals interviewed by Human Rights Watch said the anti-homosexuality laws inhibited them from reporting abuses due to fear of arrest. Those who do report may be further victimized by the police. Justice, a 26-year-old transgender man and human rights defender, told Human Rights Watch that in December 2017 he went to Likuni sub-station in Lilongwe to report a burglary and attempted robbery by a well-known “gangster” in the area. Not only did the police refuse to open a case, according to Justice, they also told him to pay 50,000 Kwacha (US$30) to avoid arrest under homosexuality charges. 

Recommendations 

• Repeal sections 153, 156, 157 and 137A of the Penal Code that criminalize adult consensual same-sex conduct.
• Repeal section 132 of the Penal Code and replace it with a gender-neutral definition of sexual assault including rape. 
• Review and amend the Penal Code to end anti-LGBT discrimination in line with Malawi's international human rights obligations.
• Follow up on the various recommendations from human rights treaty bodies in order to ensure improved protection from violence and discrimination on the basis of sexual orientation and gender identity, in particular, the recommendations contained in the concluding observations of the UN Human Rights Committee in August 2014.
• Review its legislation to explicitly include sexual orientation and gender identity among the prohibited grounds of discrimination and repeal the provisions that criminalize homosexuality and other consensual sexual activities among adults (arts. 137 (A), 153, 154 and 156 of the Penal Code).
• Introduce a mechanism to monitor cases of violence against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons and undertake all necessary measures to prevent those cases, prosecute the perpetrators and compensate the victims;
• Establish Human Rights Desks at police stations to provide a safe environment for LGBT persons to report abuses and for complaints to be processed and investigated without delay.

Older Persons’ Rights 

The number of older people abused and killed in Malawi as a result of witchcraft allegations continues to rise. The Malawi Network of Older Persons Organizations (MANEPO) documented a 68 percent rise in reported attacks and abuse of older persons between 2020 and 2021, with 15 killed in 2002, and 25 in 2023, while 123 had faced various human rights abuses in that year.

In 2024, 21 older persons were killed and over 70 tortured. Most of the attacks were based on accusations of witchcraft. An Afrobarometer survey found that three in four Malawians (74 percent) believe “a lot” in the existence of witchcraft, and that most Malawians associate witchcraft with using magic to kill people, make them sick, or bring them misfortune. The survey also showed that older persons, especially older women, are at greatest risk of being victims of witchcraft accusations. Malawi's laws do not recognize the existence of witchcraft, and it is a crime to accuse someone of witchcraft.

In its previous UPR cycle, Malawi supported a recommendation calling on the government to “strengthen efforts to ensure human rights for older people.”[11] Until 2024, Malawi had no specific legislation protecting the rights of older persons, although the 2016 National Policy for Older Persons recognized the state’s duty to do so. In April 2024, the Malawi National Assembly enacted the Older Persons Act  to safeguard older persons’ rights and welfare.

While the law seeks to address violence and abuse of older persons alongside other rights, it is not fully compliant with Malawi’s human rights obligations under regional and international human rights standards, including on older persons’ right to live independently within the community. The Act limits older persons’ right to live independently within the community when it says that community-based care is to ensure older persons remain in their own homes only “for as long as possible,” making living independently conditional, depending on the level of support required. In addition, there is no attempt to shift away from the use of residential care and towards home-and community-based care and support services. Rather, the Act entrenches residential care as an acceptable and appropriate form of care and support. Malawi ratified the Convention on the Rights of Persons with Disabilities in 2017, under which it is obligated to protect the right of older persons with disabilities to live independently within the community.

Further, while the Older Persons Act applies to people ages 60 and older, only those aged 70 and older are eligible for the monthly Older Persons Grant the Act provides for, thereby excluding those between 60 and 70 years.

Recommendations  

• Finalize the review of the Witchcraft Act of 1911 and insert provisions to protect older persons against attacks and other violations based on allegations of practicing witchcraft due to their age.
• Ensure that implementation of the Older Persons Act is in full compliance with the Convention on the Rights of Persons with Disabilities.
• Consider including people ages 60 and older in the Older Persons Grant. 

Rights of Women and Girls

In its previous UPR cycle, Malawi supported several recommendations calling on the government to reduce maternal mortality.[12] Maternal mortality in Malawi stands at 381 deaths per 100,000 live births in 2020, placing Malawi among the 25 countries with the highest maternal mortality rates in the world. Many women and girls experience poor quality maternal health services, including obstetric violence—abuse and mistreatment against pregnant women and girls in healthcare facilities—when seeking antenatal, intrapartum, and postnatal care.

While Malawi has implemented some initiatives to reduce maternal mortality, obstetric violence persists and health system challenges still abound, including limited funding, a shortage of skilled health workers, inadequate infrastructure and equipment, a lack of medicines and supplies, and a deficiency of health data to inform decision-making. The laws and policies and the methods of their implementation are also not responsive to the realities of women and girls.

Abortion is criminalized and heavily restricted in Malawi. The government has not enacted the Termination of Pregnancy Bill, proposed by the Law Commission on the Review of the Law on Abortion in 2016, and would regulate abortion and clarify the instances in which it is allowed. Lack of legal access to abortion often leads women to seek abortion services from unskilled providers or under unhygienic conditions, resulting in 17 percent of maternal mortality in the country, and exposing women and girls to a broad range of health complications and illnesses that occur, short of death, during or after.

Recommendations 

• Enact the Termination of Pregnancy Bill, as proposed by the Law Commission on the Review of the Law on Abortion in 2016.
• Recognize obstetric violence as a human rights violation and address it through appropriate policies and laws.
• Address the shortage of maternal health workers and health facilities; inadequate medical equipment and supplies such as contraceptives, dressings, needles, syringes, laboratory/diagnostic consumables, and medicines in the country’s public health facilities.