Women and Justice: Search

Section 149 prohibits any person from using unlawful means to try to cause a miscarriage in a woman, regardless of whether that person is in fact pregnant, and make the offence punishable by 14 years of imprisonment. Section 150 prohibits pregnant women from using unlawful means or permitting unlawful means to be administered to try to cause a miscarriage. A violation of this section is a felony punishable by seven years of imprisonment. Unlawfully supplying to any person any substance intended to be used unlawfully in an attempt at miscarriage is a felony punishable by three years of imprisonment (Section 151).

Per section 135, taking or detaining a woman of any age against her will for the purpose of marrying or engaging with her sexually (either for oneself or for another) is prohibited and punishable by seven years of imprisonment. Section 136 prohibits taking a child from the custody or protection of a parent or lawful caregiver against the will of such parent or caregiver and punishes the offence as a misdemeanor. Section 140 prohibits procuring or attempting to procure: (i) a girl or woman under 18 years of age for unlawful sexual relations in Malawi or elsewhere; (ii) any girl or woman to become a prostitute, in Malawi or elsewhere; (iii) any girl or woman to leave Malawi with intent that she should work at a brothel elsewhere; or (iv) any girl or woman to leave her current residence in Malawi with the intent that she should work at a brothel in Malawi or elsewhere. Such offences are punishable by life imprisonment. Section 141 criminalizes and punishes with 14 years of imprisonment the use of threats, intimidation, false pretenses and/or representations, or drugs to overpower a woman for the purposes of unlawful sexual activity in Malawi or elsewhere. However, convictions under the section cannot be sustained on the evidence of a single witness without corroboration. Section 143 criminalizes detaining a woman or girl without her consent with intent that she will engage sexually and unlawfully with any man, in general or in a brothel. It further criminalizes withholding clothing from a woman to prevent her from leaving where she is detained and provides legal protection for any woman who, in an effort to leave detention, appears unclothed in public. It is a misdemeanor for men (Section 145) and women (Section 146) to knowingly live off the earnings of sex workers. Further, men proven to be living with sex workers or controlling or influencing the movement of sex workers will be presumed to be knowingly earning from them (Section 145). Operating a brothel is punishable by seven years imprisonment (Section 147) and promoting prostitution is defined and punished in section 147A.

Section 132 defines felony rape as unlawful carnal knowledge of a non-consenting woman or girl, or a consenting woman or girl if said consent was acquired by: (i) force or threats, or intimidation of any kind; (ii) fear of bodily harm; (iii) false representation as to the nature of the act; or (iv) by impersonating the husband of a married woman. Malawi’s 2023 Penal Code amendments provided penalties for sexual abuse of boys under the age of 18, but did not change the gender-specific definition of rape. Rape (Section 133) is punishable by death or imprisonment for life. Attempted rape (Section 134) is punishable by life imprisonment. Section 137 punishes the unlawful and indecent assault of women or girls with 14 years of imprisonment. Further, the section prohibits the defence of consent for any such charges related to girls under the age of 18. Lastly, the section makes the use of words, sounds, gestures, or the display of any object with the intent to insult the modesty of any woman a misdemeanor punishable by imprisonment of one year if such an act intrudes upon the privacy of the woman. Section 139 prohibits having or attempting to have sexual relations “in circumstances not amounting to rape” with a woman or girl while knowing that said woman or girl is an “idiot or imbecile” and makes the offence punishable by life imprisonment. Section 148 prohibits conspiring with another to induce any woman or girl to permit any man to have unlawful sexual relations with her through fraudulent means of some kind. The offence is punishable by three years of imprisonment.

Under Section 48, married women can keep their maiden names, use their husband’s surnames, or both, including after the dissolution of the marriage. To qualify for divorce under Section 61, the court must find the marriage can no longer function, and has “irretrievably broken down.” The court can consider factors under Section 64, such as a rape conviction, homosexual acts or other “unnatural” offenses, or cruelty. Under Section 61, no rights to consummation continue after the termination of the marriage. Under Section 77, a decree of nullity may be made if, including but not limited to: (i) the respondent was, at the time of the marriage, (a) pregnant with someone else’s child or (b) responsible for another person’s pregnancy ; (ii) consent to the marriage was obtained by force, duress, deceit, or fraud; or (iii) the respondent had a sexually transmitted infection at the time of the marriage. Under Section 48, maintenance of any child is a requirement during the course of a marriage. Under Section 91, maintenance orders may apply while a suit for divorce is pending. Under Section 92, maintenance orders often continue following a divorce or a judicial separation. Under Section 96, fathers are responsible for maintenance of the pregnant woman, even if they are not married or in a relationship to the woman.

All civil, customary and religious marriages under Section 12 of the Act, as long as either between a man and a woman, or cohabitation of a man and a woman as if they were married for a significant period of time, all qualify for the legal status of marriage. However, under Section 14, to qualify as having the capacity to be married under the law, the man and the woman must be older than 18 years of age, be of sound mind and not be within prohibited degrees of family relations. Additionally, under civil marriages in Section 18, 51, and 52, polygamous civil marriages are not recognized and any attempt to enter into a civil polygamous marriage can be punished by a fine and imprisonment. Any customary or religious marriage under Section 26 can follow traditional rites and customs, but must meet the capacity requirements set forward in the Act.

The Act provides for the prevention and management of HIV and AIDS, provides for the rights and obligations of persons living with or affected by the diseases, and seeks to remove negative stigma for those who live with or affected by such diseases. The Act prohibits harmful practices that put a person at risk of HIV infection or could result in progression of the HIV infection to AIDS. Such harmful practices are defined as social, religious, or cultural practices, and the violation of this section is punishable by a large fine and imprisonment of up to five years. The Act further prohibits discrimination based on HIV or AIDS status, including in employment and education, and such discrimination is similarly punishable by a large fine and/or imprisonment for up to five years. Under the Act, the government is affirmatively required to provide medication and treatment, and to establish a National AIDS Commission. The Act strictly regulates the disclosure of status as well as testing by health providers. Persons diagnosed as having HIV are required to undergo counseling by a health service provider and to comply with any precautions prescribed by said provider.

The Employment Act of 1999 applies to the private sector and the Government (Section 2), and seeks to establish and enforce minimum standards of employment in order to ensure equity that is necessary for industrial peace and economic growth. Certain provisions of the Employment Act specify penalties associated with certain violations (Section 66), and establish that the Industrial Relations Court has jurisdiction to impose all such penalties and remedies specifically provided for (Section 3). The Employment Act contains broad anti-discrimination provisions that forbid discrimination and pay inequity against employees on the grounds of sex, marital status, or family responsibilities, among other traits, contravention of which can carry a fine up to K 10,000 and to up to two years’ imprisonment (Sections 5-6). The Employment Act establishes at least eight weeks of maternity leave every three years with all normal benefits and entitlements (Section 47), and contains provisions that protect a woman’s return to work under substantially same conditions post-pregnancy (Section 48) and against unlawful termination on grounds of pregnancy (Section 49).

The plaintiff was employed by the defendant until she was dismissed immediately and without formality after she tested positive for HIV during a voluntary test. Before her termination, the plaintiff had never been incapacitated due to her HIV status and was leading a normal life. The court held that fair labor practices entitle a terminated employee to know the reason for their dismissal and to explain and defend themselves. Moreover, the court explained that the burden of showing a reason for dismissal and that such reason was valid lay on the defendant and determined that the defendant had failed to meet that burden. Stating that incapacity due to ill health is a ground for dismissal only where the dismissed person is so sick as to not be able to perform their job duties, the court declared that the dismissal was discriminatory on the basis of HIV status. The prohibition of unfair discrimination is included in the Constitution of Malawi’s broad anti-discrimination provision as well as Malawi’s international obligations under the International Labor Organization Convention 111, Discrimination (Employment and Occupation) Convention. The court ordered that a remedy be assessed on a date to be fixed.

Florida health care providers challenged a Florida law banning abortion after 15 weeks of pregnancy on the grounds that the ban violated Florida’s constitutional right to privacy. The law allowed two exceptions to the ban: (i) two doctors, or one if a second is not available, provide written certification that the abortion is necessary to save the woman’s life or prevent “substantial and irreversible physical impairment of a major bodily function […] other than a psychological condition” or (ii) the fetus has a fatal abnormality. The trial court issued a temporary injunction the ban because the law would have resulted in penalties such as imprisonment for doctors who continued to provide abortion services beyond 15 weeks. The plaintiffs argued that Florida’s constitutional right to privacy, in accordance with state court precedent, and that includes abortion. Floridian voters also voted to protect abortion in 2012 at a state level, which the court could consider within their decision-making. Therefore, despite the U.S. Supreme Court’s Dobbs opinion, the law could have been declared violative of the state constitution, as individual states have the right to protect abortion rights in their constitution. The First District Court of Appeal stayed the injunction on the ban, stating that Planned Parenthood could not demonstrate irreparable harm without the injunction. On appeal, the Supreme Court of Florida upheld the appellate court’s decision, effectively reversing its previous interpretations of Florida’s constitutional right to privacy and abortion access until the end of the second trimester. However, on the same day, the Florida Supreme Court approved a proposed constitutional amendment to appear on the November 2024 ballot that would enshrine abortion rights in the state constitution.