Rape and Domestic Violence: The penal code criminalizes rape with a maximum penalty if convicted of death. The Marriage, Divorce, and Family Relations Act enacted in 2015 explicitly introduced the concept of spousal rape, but the act does not prescribe specific penalties and only applies to legally separated spouses. Spousal rape may be prosecuted under the rape provisions of the penal code. The government generally enforced the law effectively, and convicted rapists routinely received prison sentences. Data on the prevalence of rape or spousal rape, prosecutions, and convictions were unavailable; however, press reporting of rape and defilement arrests and convictions were an almost daily occurrence. Although the maximum penalty for conviction of rape is death or life imprisonment, the courts generally imposed fixed prison sentences. For cases of conviction of indecent assault on women and girls, the maximum penalty is 14 years in prison.
The Ministry of Gender, Children, Disability, and Social Welfare conducted public education campaigns to combat domestic violence and rape.
The law provides a maximum penalty of life imprisonment for conviction of domestic violence and recognizes that both men and women may be perpetrators as well as victims. According to the 2012 Gender Based Violence Baseline Survey, 40 percent of women experienced sexual violence and 30 percent experienced other physical violence. Domestic violence, especially wife beating, was common, although women seldom discussed the problem openly, and victims rarely sought legal recourse. Legal experts and human rights workers attributed victims’ reluctance to report their abusers to economic dependence on the abuser, lack of awareness of their legal rights, and fear of retribution and ostracism. Police regularly investigated cases of rape and sexual assault but did not normally intervene in domestic disputes. Police support units provided shelter to some abuse victims and dealt with human rights and gender-based violence, but officers’ capacity to assist and document cases was limited.
Female Genital Mutilation/Cutting (FGM/C): The law does not specifically prohibit FGM/C. According to press reports from 2011, some cases of FGM/C were prosecuted as unlawful wounding. A 2014 UN Human Rights Committee report expressed concern regarding the existence of FGM/C in some regions of the country. A few small ethnic groups practiced FGM/C. In most cases FGM/C was performed on girls between ages 10 and 15.
Other Harmful Traditional Practices: The Gender Equality Act of 2013 prohibits certain harmful traditional practices, including “widow cleansing” and “widow inheritance.” Nonetheless, in a few isolated areas, widows were sometimes forced to have sex with male in-laws or a designee as part of a culturally mandated “sexual cleansing” ritual following the death of the husband. In some cases widows were “inherited” by a brother-in-law or other male relative. The government and NGOs continued efforts to abolish such practices by raising awareness concerning the inherent dangers of such behavior, including the risk of HIV/AIDS transmission.
“Kupimbira,” a practice that allows a poor family to receive a loan or livestock in exchange for daughters of any age, existed in some areas.
Despite certain legal prohibitions, many abusive practices, including the secret initiation of girls into the socially prescribed roles of womanhood, continued. Such initiations were often aimed at preparing girls for marriage with emphasis on training girls how to engage in sexual acts. In a few traditional communities, girls as young as age 10 were forced to have sexual relations with older men as part of such initiation rites. According to UN estimates, one in 10 citizens is infected with HIV, and this practice places girls at great risk of infection. On July 25, in response to negative publicity from the BBC and other international news media, the president ordered the arrest of Eric Aniva for having sex with children. An HIV-positive man, Aniva reportedly was paid to have sex with girls as part of initiation rites but failed to disclose his condition to the families that hired him. He was tried and convicted on two counts of engaging in harmful cultural practices and sentenced to two years’ imprisonment. In September police and traditional leaders burned initiation camps in Mangochi District where girls were instructed on sex and sometimes lost their virginity.
Sexual Harassment: The Gender Equality Act makes sexual harassment punishable if convicted of up to five years’ imprisonment. Extreme cases could be prosecuted under certain sections of the penal code, such as indecent assault on a woman or girl, which provides for up to a 14-year prison sentence if convicted, or insulting the modesty of a woman, a misdemeanor punishable by one year’s incarceration if convicted. Although sexual harassment was believed to be widespread, there were no data on its prevalence or on the effectiveness of government enforcement of the law.
Reproductive Rights: The government recognized the right of couples and individuals to decide the number, spacing, and timing of their children; manage their reproductive health; and have access to the information and means to do so, free from discrimination, coercion, or violence. The government allowed health-care clinics and local NGOs to operate freely in disseminating information on family planning under the guidance of the Ministry of Health. There were no restrictions on the right to use contraceptives, but access was limited in rural areas. The Malawi National Statistical Office (NSO) estimated 43.2 percent of married women of reproductive age used a modern method of contraception. The government provided free childbirth services, but their availability depended upon access to hospitals and other medical facilities in rural areas. The NSO estimated the maternal mortality rate was 634 deaths per 100,000 live births, and a woman’s lifetime risk of maternal death was one in 29. AIDS and adolescent pregnancy both were factors in these high rates. The NSO estimated 29 percent of girls and young women ages 15 to 19 gave birth each year. Nurses and midwives were a critical component of prenatal and postnatal care due to a shortage of doctors. According to the NSO, skilled health-care providers assisted in 90 percent of births in 2015. There was only limited access to emergency obstetric care, however, particularly in rural areas.
Discrimination: By law women have the same legal status and rights as men and may not be discriminated against based on gender or marital status, including in the workplace. Women had significantly lower levels of literacy, education, and formal and nontraditional employment opportunities, as well as lower rates of access to resources for farming.
Women often had less access to legal and financial assistance, and widows often were victims of discriminatory and illegal inheritance practices in which most of an estate was taken by the deceased husband’s family.
Women usually were at a disadvantage in marriage, family, and property rights; however, awareness of women’s legal rights continued to increase. Households headed by women were predominately in the lowest quarter of income distribution. More than half–52 percent–of full-time farmers were women, but they had limited access to agricultural extension services, training, and credit.
The law provides for a minimum level of child support, widows’ rights, and maternity leave; however, only women employed in the formal sector knew their rights and had access to the legal system, and thus benefited from these legal protections.
The government addressed women’s concerns through the Ministry of Gender, Children, Disability, and Social Welfare.
Birth Registration: Citizenship may be derived from birth within the country or abroad to at least one Malawian parent “of African race.” According to the most recent population census (2008), 16.6 percent of children under age 18 had a birth certificate. Compulsory universal birth registration, enacted in 2012, became effective in August 2015, and four hospitals initiated electronic birth registration and issuance of legal birth certificates. There were no reports of discrimination or denial of services due to lack of birth registration.
Education: The government provided tuition-free primary education for all children. Education for children under age 18 is compulsory. Families were responsible for paying book fees and purchasing uniforms. Students from poor families had access to a public book fund. Many girls, especially in rural areas, were unable to complete primary education or transition to secondary education due to poverty, inaccessibility of schools or lack of capacity in schools, early and forced marriage, adolescent pregnancy, and cultural factors such as girls having a greater burden than boys of household responsibilities and parental preference to educate boys. Consequently they were at a serious disadvantage in finding employment. The 2015-16 Demographic and Health Survey (DHS) found that 5 percent of men and 12 percent of women had no formal education.
Child Abuse: Child abuse remained a serious problem. The press regularly reported cases of sexual abuse of children, including arrests for rape, incest, sodomy, and defilement. The 2014 Violence Against Children Survey found that one in five women and one in seven men ages 18 to 24 experienced at least one incident of sexual abuse prior to age 18. Two in five women and two in three men ages 18 to 24 experienced physical violence prior to age 18. Less than a quarter of individuals ages 18 to 24 knew of a place to seek help.
The law prohibits subjecting a child to any social or customary practice that is harmful to health or general development. Prohibited practices included child trafficking, forced labor, early and forced marriage or betrothal, and use of children as security for loans or other debts.
Ministry of Gender, Children, Disability, and Social Welfare activities to enhance protection and support of child victims included reuniting rescued victims of child labor with their parents and operating shelters for vulnerable children.
Early and Forced Marriage: The Marriage, Divorce, and Family Relations Act sets the minimum age for marriage at 18, but the constitution allows marriage at age 15 with parental consent. According to the UN Children’s Fund State of the World’s Children 2016report, 9 percent of girls and women ages 15 to 49 were first married or in a union before age 15, and 46 percent were married or in a union before age 18. The minimum marital age was not widely enforced, and civic education on early marriage was carried out mainly by NGOs. Some traditional leaders annulled early marriages and returned the girls involved to school.
Reflecting strong political will, ending child marriage was one of the three commitments made by the president as a global champion of the UN Entity for Gender Equality and the Empowerment of Women 2016 “He for She” campaign and a high priority of the Ministry of Gender, Children, Disability, and Social Welfare.
Female Genital Mutilation/Cutting: See information for girls under age 18 in women’s section above.
Sexual Exploitation of Children: The law forbids engaging in sexual activity with children under age 16 and stipulates penalties for conviction of 14 to 21 years in prison. The law further prohibits “indecent practice” in the presence of or with a child, with offenders liable to imprisonment of up to 14 years.
The law prohibits child pornography and using a child for public entertainment of an immoral or harmful nature. The maximum penalty for conviction of engaging in child pornography is 14 years in prison, while those found guilty of procuring a child for public entertainment are liable to a fine of 100,000 MWK ($138) and imprisonment of seven years. The law was not effectively enforced.
The widespread belief that children were unlikely to be HIV-positive and that sexual intercourse with virgins could cleanse an individual of sexually transmitted diseases, including HIV/AIDS, contributed to the widespread sexual exploitation of minors. The 2014 Violence Against Children Survey reported one in five women ages 18 to 24 experienced sexual violence before age 18. The average age for the first incident of sexual abuse was under 14 for both genders. More than a third of women ages 18 to 24 reported their first sexual intercourse was rape.
The trafficking of children for sexual purposes was a problem, and child prostitution for survival at the behest of parents or without third-party involvement occurred. At local bars and rest houses, owners coerced girls as young as age 12 to have sex with customers in exchange for room and board.
Displaced Children: The 2010 DHS found that 19 percent of children under age 18 were not living with either biological parent and that 17 percent were orphaned or vulnerable due to extended parental illness or death, including an estimated 650,000 orphaned because of AIDS. Extended family members normally cared for such children and other orphans.
International Child Abductions: The country is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at travel.state.gov/content/childabduction/en/legal/compliance.html.
The Jewish community was very small, and there were no known reports of anti-Semitic acts.
Trafficking in Persons
See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
Persons with Disabilities
The Disability Act prohibits discrimination in education, health care, the judicial system, social services, the workplace, housing, political life, and cultural and sporting activities for persons with disabilities, defined as a long-term physical, mental, intellectual, or sensory impairment. The law prohibits discrimination against persons with disabilities in political and public life and calls for the government to take measures to provide access for them to transportation, information, and communication services. The law provides for the establishment of a disability trust fund to support persons with disabilities, including with regard to access to public facilities, both governmental and private.
Societal stigma related to disability and the lack of accessibility to public buildings and transportation had a negative impact on the ability of persons with disabilities to obtain services and obtain and maintain employment.
Accommodations for persons with disabilities were not among the government’s priorities. Although the Disability Act took effect in 2013, the government had yet to adopt standards and plans for its enforcement and implementation. The Ministry of Gender, Children, Disability, and Social Welfare is responsible for protecting the rights of persons with disabilities, but inadequate resources precluded it from doing so.
There were public and privately supported schools and training centers that assisted persons with disabilities. In 2015 a disability advocacy group noted unlawful discrimination against women and children with disabilities was more prevalent in rural areas and that it received several reports of children with disabilities having to leave school because of inadequate accommodations.
As of September the MHRC reported receiving seven complaints related to disability rights and concluded investigations into three of them. The complaints regarded the insufficient availability of wheelchairs, inadequate access to schooling for children with disabilities, and the unavailability of sunscreen at a health facility for an individual with albinism.
Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
LGBTI persons are denied by law and practice basic civil, political, social, and economic rights. Consensual same-sex sexual activity is illegal and punishable if convicted by up to 14 years in prison, including hard labor. The penal code outlaws “unnatural offenses” and “indecent practices between males.” In 2014, however, Solicitor General Janet Banda told the UN Human Rights Commission the government would not enforce these laws. In December 2015 Minister of Justice Samuel Tembenu reaffirmed the moratorium on the enforcement of laws criminalizing consensual same-sex sexual activity and continued the moratorium during the year.
In 2013 the High Court invited friend-of-the-court submissions on the constitutionality of laws against “unnatural offenses” and “indecent practices between males.” It received arguments both for and against the laws’ constitutionality, with most of the arguments being in opposition. The attorney general filed a motion with the Supreme Court objecting to the process on the basis that the chief justice must certify constitutional questions and obtained an order in 2014 suspending the proceedings. On August 2, the attorney general withdrew the government’s objection to the process, thus allowing the constitutional review to resume. As a result a panel of no fewer than three High Court judges was planned to conduct the review, but no date had been set by year’s end.
Same-sex sexual activity may also be prosecuted as “conduct likely to cause a breach of the peace.” A 2011 amendment to the penal code established penalties for consensual same-sex sexual activity between women, setting a maximum prison term for conviction of five years.
From January to October, the Center for Development of People documented 19 instances of abuse based on sexual orientation and gender identity. The nature of the abuses fell into three broad categories: stigma, harassment, and violence. The Weekend Nationnewspaper published a weekly column entitled “Sexual Minority Forum” written by the leaders of human rights NGOs to shed light on conditions affecting LGBTI persons and their rights.
HIV and AIDS Social Stigma
Societal discrimination against persons with HIV/AIDS remained a problem, especially in rural areas. Many individuals preferred to keep silent regarding their health conditions rather than seek help and risk being ostracized. Campaigns by the government and NGOs to combat the stigma had some success. The National AIDS Commission maintained that discrimination was a problem in both the public and private sectors.
The 2012 People Living with HIV Stigma Index for Malawi indicated that of 2,272 persons with HIV interviewed, significant percentages reported having been verbally insulted/harassed/threatened (35.1 percent) and excluded from social gatherings (33.7 percent).
Other Societal Violence or Discrimination
Mobs and local citizens sometimes engaged in vigilante attacks, at times killing persons suspected of crimes such as theft.
There were several attacks against persons with albinism driven by the demand for body parts for witchcraft rituals in neighboring Tanzania. Religious, traditional, civil society, and political leaders, including the president, publicly denounced the attacks. The government launched a public awareness campaign and conducted training of police, prosecutors, and judges in border districts to counter the trend.