Malawi sex laws problematic on several fronts- Legal expert

As debate continues on same-sex marriages in the country, Lewis Banda, lecturer in law at Chancellor College, weighs in by questioning the relevance and justification of the law used to regulate sexual activities in the country.

Of law, adults and sex

Of law, adults and sex

By now, most Malawians have an idea that the law in the country criminally prohibits homosexual activities. So, men are prohibited from having sex with men and women with fellow women.

Anecdotal evidence suggests that most Malawians actually support the law’s stance on this.

I am pretty sure it may come as a surprise to most Malawians to learn that the law does not only tell people with whom to have sex with, but also how to do so.

Hence, it is not only a crime to have sex with someone of your own sex, but also to have sex with someone of the opposite sex contrary to what the law prescribes.

This begs one simple question: Is it a good policy for the law to regulate how consenting adults should have sex?

I want to address this question by reference not to the well-known homosexual offences, but to the less known offence of having sex against the order of nature, which also targets heterosexuals.<

Briefly summarised, our law prohibits people-including heterosexual couples-from having sex contrary to “the order of nature.” It matters not that the people involved are consenting adults, or that the sexual activity happened in private. Hence, a legally married husband and wife can be arrested and punished if they have consensual sex in the privacy of their matrimonial bedroom contrary to order of nature.

Oddly, the law does not tell what sexual activities are in accordance with the order of nature, and those that are not. This has been left to the police and courts to decide. Can one imagine that: the law has recklessly left it to the police and courts to decide what sexual activities between consenting adults are permissible and which are not?

This law’s attempt to regulate how consenting adults should have sex is problematic on several fronts. Limitations of space mean that I can only discuss one of these: respect for human rights, particularly the rights to dignity and privacy.

The idea that adults should be told how to have sex and, worse still, to be punished for having sex as they wish in the privacy of their bedrooms, is not only demeaning, but also an assault on their dignity. With the offence in the statute books, it means that adults should constantly cross-check with their lawyers, or even the police, before trying new things in their bedroom.

More indignity awaits those who are arrested and prosecuted for this offence. To be questioned about your private sexual life, even with your legally wedded spouse, and to be put through a public criminal trial over what you did with your legally wedded spouse in the privacy of your matrimonial bedroom, can  shatter every person’s sense  of dignity.

Further, the enforcement of this offence inevitably involves serious violations of the right to privacy. An individual’s sexual life constitutes the core of his/her right to privacy. Accordingly, any interference with a person’s private sexual life is an assault on that right. Such interference can only be justified on very strong grounds.

Now, every stage in the enforcement of this offence involves a serious violation of the privacy rights of those concerned. One can just imagine the type of evidence that will have to be adduced to prove such an offence, or how such evidence will be collected by the police. The police will have to invade the sanctity of people’s bedrooms and peep under the blankets, to see how they are having sex. That is a serious violation of people’s privacy.

Besides constituting a serious violation of the dignity and privacy of those arrested or prosecuted for this offence, it is just hard to imagine any benefits the society in general derives from this needless sexual censorship. We are not worse off as a society because people want to have sex as they wish. The criminalisation is, therefore, deeply flawed and misguided. The sexual activities of consenting adults done in private should never be a prosecutable offence. It does not matter whether those adults are homosexuals or heterosexuals.

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37 thoughts on “Malawi sex laws problematic on several fronts- Legal expert”

  1. Benjamin nkhwenje says:

    U must arrest both of them they r stupid

  2. Big Boshah says:

    Ts All About Money, Ohh Loard Plz Review Ur Lawz To Nyasaland.

  3. clement wejah says:

    this is stupidness at its bets leve…marriage is a dignified institution,therefore we must espect what is happening in and then our country will experience hamony in this issues.

  4. arthur says:

    we us malawians we respect gods nature lets do something about it in my opinion let god fight for us coz we know i culture n who are we rear

  5. Ingangasyungu Yunyeghela says:

    Does stealing happening publicly? Mapazi ako.

  6. Angoni apaphata says:

    You fool. The constitution is based on the bible. So even if you are in your bedroom what is wrong doesn’t become right. Idiot

  7. Chikondi Medson says:

    Nice and good but one needs to be careful with the “privacy” and “dignity” argument. There are things that happen in private that are and should be, rightly, condemned. If you think about it most crimes take place in private.

    On the sexuality question, we must ask who makes laws in a country and we should go to those to see if they would like to change this particular law in Malawi. Should a case of appeal be occasioned, I imagine it will be on the Human Rights cause, from the Human Rights point of view the matter should be considered by all stakeholders.

    My point is that a wholesale respect for privacy will not do. If you have watched “Fifty shades of Grey” you should understand what I mean. Not all that happens in private must be condoned out of respect for privacy.

  8. Danger Chipino says:

    Kodi tasiya kuti zija timanama kuti Malawi ndi dziko lowoopa mulungu. Bukhu loyera likukana za Sodomu ndi Gomorazo, opezeka akugonana ofana ziwalo amangidwe kapena aphedwe, omwe timati ndiozindikira aja ndi zisiru. M’ sonda call for demo we are with you.

  9. Mtendere says:

    Alekeni Akukwanilisa Malembo Koma Tsoka Ammene Akukwanisayo

  10. Aningo says:

    Brilliantly argued, not unnecessarily coloured with unhelpful emotions or hypocritical claims to religiosity or culture. Give one more piece please. I also feel those arguing against homosexuality should say something concrete on the “carrot” that has been dangled by our Western friends. I am saying this because we may find ourselves unwittingly “conspiring” to murder many poor Malawians who may have been helped by this money

  11. mwachoka nazo ku Belgium ndizimenezi basi a Bande?????? shame!!!!!!!!!!

  12. vwendenga says:

    Let’s call on God guidance.

  13. Zidura Ntengo Undigwere says:

    Kodi nkazi’yo pa chithunzipo akugona olo akulota? Osamva kukoma bwa? Zonama baasi.

  14. GRM says:

    Let me ask our good lawyer. Is it not abuse of human rights to ask your wife for oral or anal sex when it is disgusting and cultural wrong for her? The law also protects me and you from abuse.

  15. g says:

    Arrest all people having oral sex.😂😂😂😂

  16. Muthubule says:

    Wow, what a brilliant piece of writing! Well argued

  17. Pitala pa ulendo says:

    Well said. We have got way worse sins in our midst than homosexual e.g. murders, cashgate (that resulted in perpetual mass deaths of poor citizenry), stealing of electoral votes and having the High Court Judge and Chairman of the Electoral Commission endorse it, the list is endless.

  18. mbolo + nyini says:

    don’t waist Tym abt sex…….don’t disarrange body parts functions……kwa manyi kwamanyi basiiii…….

  19. Kabononkhola says:

    The author misses the point. Malawians are not calling for bedroom inspectors or referees. We are against bringing homosexual madness to the public domain. In a marriage set up, nobody tells consenting adults which hole to penetrate. In fact nobody has been dragged to court for going into the wrong hole. The issue is that homosexuals want to try our patience by going public.

  20. Omase says:

    Sir, thank you for exercising your mental imaginations and intelligence. unfortunately you are out topic and out of order, sorry sir.

  21. noreply says:

    Ok.

  22. chisomo says:

    Umbuli si kusalowa mkalasi kokha. Nanga nkhani yake ndiye iti apa? Aaaaa.. Za ziii! Uloya ndi uloya kumakamba nyansizi.Aaaaa!

    AZUNGU AMVE ZIMENEZI.
    Ignorance is not only failure to attend school. Where is the issue here…seriously. SaaS… very cold… The whole layer wasting time with this waste.

  23. ANTI-GAY says:

    Well spoke, but just a reminder, MATHANYULA YAYE, KU MALAWI TAKANA CHIMODZIMODZI MONGA AKANIRA MAYIKO AMBIRI PADZIKO LAPANSI. We dont want to kiss the devil and sing his song. Illuminati ku America konko ife yayi

  24. Malawi 4 Malawians says:

    Not much to say, but it’s clear the Lecturer has an evil motive behind his biased analysis of the law. If sex is done in privacy between two consenting adults, there is no way it will become a crime, even if in the course of it, the couple consents to do it against the natural way. It will only become an issue where there is no consent on one of the partners. The law is thus in order, but some evil minded idiots will start drawing our attention to repealing the laws to pave way for gay rights talk. Try it with a non-consenting partner, I will see you at Zomba maximum prison.

    P/S If the president swore that he will govern Malawi by uphold the rule of law, then he should not have any pressure to answer stupid questions of gays being arrested. The law of Malawi criminalises gay relations and the president is not the one arresting the idiots but the supreme law of the land. Arrest the gays and let justice run like water in the shire river!

  25. WADZANA says:

    No Need to eplain what the law is all about just to expose ur intelligency, ‘homosexual’ is the stupidity, foolishness of the mind & sinful nature against God. (Man Of God!!!).

  26. eluby chikopa says:

    I think you are really stupid Mr. Bande and perhaps that is why Law in Malawi stinks big time. How many times have you seen people fucking live in your community? Homosexuals should not demand any right from us as married people and should not show their stupid affections in the public as this would disturb children as to what family constitutes. Mbuzi za supreme court ku America had shitty ideas and gave homos their rights. The Law is put by people to direct their societies and unfortunately someone is appointed to think that he or she can interpret the law better in the name of an insane judge. Tudzi teniteni. Kunyengana kuthako brings in hepatitis c which kills and has no cure or units like AIDS. Moral of the story ngati uli ndi ana ako aamuna azinyengedwa ndi anyamata a kwa a neba. Iwe ungamve bo?

  27. dzambo says:

    This is only a reflection of a postmodern spirit embedded in those entrusted with both the teaching of the law and its interpretation in this country. The fundamental question we should be asking ourselves is what is the law? for whom is the law made and for what purpose? Apart from the generally accepted international standards, ‘if at all there are any standards” what does a country’s law represent or reflect? Does it not represent the aspirations and collective imagination of its people? Should our laws be made (even in the context of a colonial legacy behind them) so as to please the White House,Downing Street or IMF HQs?

    I believe in spite of the technical challenges Bande presents, so far the sex law in Malawi has served us well. It has been internalised and therefore lived by the majority of Malawians as if it did not exist. That is why even in the context of its regulation of heterosexual relations, it has resonated with the general Malawian conformity to order of nature in sexual relations. So while it might need redefinition (in terms of defining the parameters), its spirit, which is the major essence of every law is very malawian. Just thinking!

  28. nguluwe says:

    Don’t be so narrow-minded. Sexual intercourse is just the tip of the iceberg. If govt legally endorses sex between same gender, why not allow them to marry legally, why not accord them the same benefits as heterosexual marriages? If that is all legal then churches and mosques and temples will have to recognize them and give them same access and recognition. For a fact both the Bible and Quran do not permit homosexuality. Are you going to violate the freedom to religion of these believers, who constitute the majority of the population? That is not how democracy is supposed to work.

  29. Kaleza says:

    The constitution of malawi should to be reviewed to reflect the country’s cultural values which were intact before colonialism. All these freedoms being promoted are designed to be destructive because they have no limits. The limitless Freedom of worship is euphemism for satanism to be accepted as a religion, freedom of speech is a pretext for lawlesness, and freedom of dress is another ruse used to promote promiscuity and sexual immorality. We must be cognizant of the undeniable fact that the people who promote these social ills are satanists whose political and pagan heritage goes way back to the babylonian kingdom. This evil pagan political system is still intact even after going through 5000 years of resistance by different religious organisations. All these experts are well paid agents used in a heavilly financed social engineering program to weaken and destroy all organised cultures and religions and any cohesive force in order to replace it with global pagan slavery

  30. torgo nodo says:

    akulu ali pachithunzipo ndi akape. yamugalimoto sitichita kuvula zonse please. imakhala ya fast!

  31. Phwado says:

    Koma mulipo kagulu.Bavumbulukani!

  32. Namacherenga says:

    This article is one of those lawyers’ jokes. Everybody knows the meaning of “against the order of nature ” in the context of homosexuallity except maybe the writer. What a waste.

  33. Angel of Doom says:

    typical Malawian, has stolen the idea from my comment on Msondas “Kill Gays” article.

  34. Tk says:

    If indeed this article is written by a professor from Chancellor College I shudder to think about his poor students that the learned gentleman is meant to impart his knowledge if his laboured repeated attempts to simply explain the notion of evasion of privacy is anything to go by. What a lot of hogwash

  35. moffat lungu says:

    The conclusion is very true and this must stop. Let the police know that arresting people based on their sexual orientation is a criminal office of invading into people’s privacy and the police can be sued for violating the people’s privacy.
    Let no one invade other peoples’ privacy. Nobody should spend sleepless nights over what people do in their bedrooms.

  36. kadamanja says:

    Apa ndiye anamva kukoma bwanji even a nyasatimes amayika chithunzi chomwechi nkhani yikakhala ya sex.

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