The Domestic Violence Act (No. 10 of 2008) seeks to provide survivors of domestic violence with protection. The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant" and includes various forms of abuse, nonconsensual entry into applicant’s home, unlawful detainment, and stalking. The Act empowers Courts including Customary Courts to pass an order (Section 7 of the Act prescribes orders available to applicants such as restraining orders and interim orders) that seeks to immediately protect applicants (victims); Section 9 (2) (b) (i) provides that the order shall direct a member of the Botswana Police to prohibit the respondent (the offender) from committing an act of domestic violence. The Act also outlines the jurisdiction of the courts, describes how an applicant can file an application for an order by the court, details how documents are served to respondents, and explains the nature of proceedings in a domestic violence case.
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The Penal Code defines and prohibits criminal offenses. Section 160 of the Code permits abortion in cases where the pregnancy would involve risk of injury to physical or mental health and in cases of fetal impairment, rape, defilement or incest. The abortion must be carried out by a registered medical practitioner and with the consent of two medical practitioners. In 1998, the Penal Code Act was amended to make the offence of rape gender-neutral and to move away from a phallus-specific definition. The Amendment introduced a minimum sentence of 10 years to a maximum term of life imprisonment and made bail unavailable to persons accused of the offense. The amendment also made mandatory HIV testing for persons convicted of rape, and in the case wherein rape was accompanied by additional violence or the rapist was unaware of his or her HIV+ status, a minimum sentence of 15 years with corporal punishment was introduced. For cases wherein the convicted person was aware of his or her HIV status, the minimum sentence was set at 20 years imprisonment with corporal punishment. Further, in 2018, sections of the Penal Code were amended to increase the age of defilement of persons under 16 years of age to 18 years of age.
The Sexual Offences Registry Act creates a sexual offenders registry and a Sexual Offenders Inter-sectoral Council. The Inter-sectoral Council will be responsible for developing and compiling a national policy framework to reduce sexual offenses including, but not limited to, rape, cyber sexual harassment, and defilement.
The Cybercrime and Computer Related Crimes Act defines and prohibits crimes perpetrated through computers and computer systems. The Act criminalizes online gender-based violence including cyber harassment and cyber stalking. Clause 16 of the Act prohibits cyber harassment—the making of any request, suggestion or proposal, which is obscene, lewd, lascivious or indecent; or threatening to inflict injury or physical harm to the person or property of any person. The penalty for cyber harassment is imprisonment for a term not to exceed six months, a fine not to exceed P10,000 or both. Clause 17 of the Act prohibits cyber stalking—the willful, malicious or repeated use of electronic communication to harass another person, or make a threat with the intent to place that person in reasonable fear for his or her safety or for the safety of his or her immediate family. The penalty for cyber stalking is imprisonment for a term not to exceed one year, a fine not to exceed P20,000 or both. Finally, Clause 18 prohibits all offensive electronic communication.
Although Malawi has crimes eligible capital punishment, sections 327 and 328 of the Criminal Procedure and Evidence Code provide that any woman who receives such a sentence must undergo an inquiry to confirm that she is not pregnant before the sentence is carried out. The court will determine whether or not she is pregnant based on evidence presented. A decision that a woman is not pregnant is appealable to the Supreme Court of Appeal. A woman who is determined to be pregnant shall have her sentence changed to life imprisonment.
On appeal, the High Court considered a divorce decree. The High Court considered the allegation that African customary law required women to be housekeepers, engage in the domestic sphere, and that failure to fulfill these duties legally could result in a divorce. The High Court agreed that customary requirements of women within the household, when not being fulfilled during the course of a marriage, were sufficient grounds for divorce.
The appellant was convicted by the Third Grade Magistrate Court of two counts of theft and sentenced to six months in prison with hard labor. She appealed her sentence to the High Court and asked the Court to consider a non-custodial sentence instead because she was pregnant and about to give birth. The High Court reduced the appellant’s sentence to time served and admonished the Magistrate Court for sentencing her to imprisonment without considering her status as a first-time offender and a pregnant woman as required by sections 339 and 340 of the Criminal Procedure and Evidence Code. The court also cited the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders which recommends that women who are pregnant or who have dependent children receive non-custodial sentences where appropriate and custodial sentences when they have committed violent crimes or present a continuous danger.
Members of the Malawi Police Service assaulted, raped, and physically and emotionally abused 18 women and girls while on duty following the death of the police superintendent. Their victims, the plaintiffs, asked the High Court to review the Inspector General of Police for failing to control and investigate the officers. The plaintiffs asserted that their constitutional rights to not be subjected to torture, cruel, inhumane, and degrading punishments were violated by the officers and Inspector General. In siding with the plaintiffs, the Court explained that the standard of proof required in civil cases is proof upon a balance of probabilities and rejected the defendant’s argument that the plaintiffs’ medical reports were irrelevant because they were taken months after the incidents. The court highlighted that it was the police department’s failure to investigate the incidents that led to the delayed medical examinations. The Court further held that the officers’ actions, and Inspector General’s inaction, amounted to human rights violations contrary to the Malawi Constitution and CEDAW. The Court awarded the plaintiffs damages using guidelines set by comparable local cases and cases from other jurisdictions, noting that various international treaties that Malawi is party to acknowledge compensation as a right for victims of sexual violence.
The Supreme Court of Appeal heard an appeal over property rights and division of matrimonial property that occurred during a polygamous marriage, when a wife evicted the fourth wife and her children from the property after the death of the husband. Use of a matrimonial home by one wife did not mean the wife had property rights over the home, according to the court; proof of joint ownership is required for a wife to acquire the property after the death of her husband. The fact that the appellant was allowed to live in a matrimonial home as the fourth wife of the husband did not mean she was qualified to own the home after his death when she did not contribute to the home, and one of the other wives could show her contribution to the purchase of the home along with the deceased.
The Malawi High Court considered an appeal in regards to distribution of property during the course of a divorce. The Malawi High Court found that property must be held jointly to be considered matrimonial property that can be evenly distributed at the end of a marriage. If individually owned by one party within the marriage, it cannot be distributed equally to both spouses at the time of a divorce.
The landmark case stating that a married woman may, during the course of her marriage, acquire property independent of her husband. As long as the wife carries the burden of proof of showing that the property was purchased or received independently, she may own any property independent of her husband during the marriage, and will continue to own it independently after a divorce. The plaintiff was the daughter of the deceased and the defendant was the husband of the deceased. The deceased and the defendant had children, who were in the custody of the plaintiff. The plaintiff requested that the court make various orders regarding the deceased’s estate amounting to granting her permission to continue administering and managing the estate. The court found for the plaintiff, stating, inter alia, that the children of a woman who dies intestate are the heirs to her estate before her husband.
This divorce case by the High Court centered on the plaintiff being abandoned by her husband, the defendant, after being diagnosed with HIV. The defendant removed all property from their house and refused to pay maintenance. The High Court found the defendant still had the responsibility to pay maintenance, and had to pay her for the equal value of the division of their marital property after their divorce, with her HIV status not limiting her legal rights to the property in any way.
The plaintiff appealed to the High Court on the grounds that she was unfairly terminated because of her HIV status. The plaintiff carried the burden of proof to show discriminatory termination. The High Court found that the plaintiff did not meet the burden of proof of showing that her HIV status motivated her termination, when the financial difficulties and restructuring of the company were clear.
The murder in this case stemmed from the defendants’ claim that one of them was the rightful heir to the Thombozi chieftaincy rather than the murder victim and her successors. The four men were charged with murder for cutting and striking the woman’s head with panga knives (machete) and a hoe repeatedly until she died. The victim was seated amongst her colleagues in front of the village court, as was customary for the group of women, when the defendants, from a nearby village, approached the group and asserted that they owned the court. The defendants demanded that the women clear from the area for a new chief to enter, but upon the women’s’ refusal to comply, the defendants attacked the women with their weapons and killed the victim. Two of the defendants raised the defense of provocation claiming that the group of women assaulted the defendants first. In rejecting the defendant’s argument, the court highlighted that the victim and her colleagues were unarmed and emphasized that “provocation must bear a reasonable relationship to the accused person's act.” The court held that the victim and her colleagues did not provoke the defendant's and found all four men guilty of murder.
The defendant, a transgender female sex worker, was charged with two counts of false representation with the intent to defraud after she offered her sexual services to two men and then took their phones. She was additionally charged with one count of committing an unnatural offense because she had sex with one of the men. The court found the defendant guilty of falsely representing herself because she propositioned the two witnesses for sex while presenting as a woman but possessed male genitalia. The court further found that she had violated Section 153 of the Penal Code by acting against “the order of nature” when she engaged in sex with one of the men. The court proclaimed that homosexual acts are prohibited by law until the High Courts or Parliament explicitly decide otherwise despite acknowledging that Malawi’s constitution prohibits discrimination of persons on the grounds of “other status or condition.” The court recommended that higher courts provide guidance on transgender legal issues and the constitutionality of same-sex relations. Ultimately, the court sentenced the defendant to serve concurrently three years for each charge of false pretense and eight years for violating the Penal Code’s prohibition of same-sex conduct. The case is now pending before a panel of High Court judges sitting as the Constitutional Court of Malawi. The magistrate court decision is no longer available online, but the Women & Justice Collection has a copy of the decision. Information about the case can be found here: https://www.hrw.org/world-report/2024/country-chapters/malawi#e81181 ; https://nra-mw.com/court-adjourns-the-jana-gonani-case-after-cross-examining-the-claimant-expert-witness/ ; https://www.zodiakmalawi.com/nw/national-news/66-news-in-southern-region/6651-court-finishes-hearing-homosexuality-case
The executive branch of Malawi issued a moratorium to halt the operation of laws that criminalized the sexual practices of same-sex couples. A lower court suspended the moratorium and three separate applicants filed for a continuation of the suspension in the High Court. The Court found that two of the applicants, as clergymen, did not have standing in the case because they were not directly injured by the moratorium. By contrast, the Court determined that the last of the applicants had standing because he was arrested for obtaining goods by false pretenses and it was unfair for him be punished for his illegal action while people engaging in same-sex acts were not arrested. The Court sustained the suspension of the moratorium and further referred the question of the executive branch’s power to pass the moratorium to the Chief Justice.
The applicant was separated in her marriage and sought to regain custody of the child she had lost to her husband, the respondent. A lower court granted the respondent custody of the child on the grounds that he had paid lobola to marry the applicant and customary law therefore entitled him to the child. After delaying to comply with the court’s order and attempting to seek relief from another court, the applicant was found guilty of contempt for fighting to keep her child. She was sentenced to five working days in civil prison. The High Court of Malawi in reviewing the case held that the child must be returned to the custody of the applicant. The High Court explained that the lower court had erred by defaulting to customary law rather than hearing the arguments of both parties to determine the best interest of the child when determining custody. Moreover, that the lower court was unnecessarily harsh to sentence the applicant to civil prison without considering a fine as her punishment for an act as reasonable as fighting to keep her child.
The petitioner sought a dissolution of her marriage to the respondent on the grounds of cruelty and additionally sought custody of their four-year-old child. As the respondent had already admitted to beating the petitioner throughout the course of their marriage and pleaded guilty to domestic violence in a lower court, the court ordered that the couples’ marriage be dissolved. The respondent contested the petitioner’s request for custody over their child on the grounds that he had paid a “lobola,” roughly translated to “bride price,” which under customary law entitled him to custody of the child. In rejecting the respondent’s argument, the court highlighted that both Section 23 of the Constitution and section 8 Child Care Protection and Justice Act require that the best interest of the child be the primary consideration when determining custody, superseding customary law. Further, the court explained that when young children are involved, mothers should be granted custody unless there is "serious evidence" that they are unfit. The court granted full custody to the petitioner and visitation to the respondent.
A person who commits murder but does the act in the heat of passion caused by sudden provocation is guilty of manslaughter only (Section 213). Provocation is defined to include any wrongful act or insult of such a nature as to be likely to deprive an ordinary person of self-control and to induce such a person to assault the person who committed the act or insult (Section 214). Section 230 addresses women who causes the death of their child under the age of 12 months. While this would typically be murder, this provision reduces the offence to manslaughter if the woman’s mind is “disturbed” by not having recovered from giving birth or due to the effects of lactation. Section 231 prohibits any person from preventing a child to be born alive in such a manner that if the child had been born alive and then had died the person would have been deemed to have unlawfully killed the child. The offence is punishable by imprisonment for life. Section 232A prohibits a woman from abandoning her child at birth after delivery, regardless of whether the child survives and the offence is punishable by two years of imprisonment.
Section 161 prohibits willfully and fraudulently deceiving a woman into think she is lawfully married in order to cohabitate or have sexual intercourse with her. The offence is punishable by 10 years of imprisonment. Bigamy is an offence punishable by five years of imprisonment, but remarriage is permitted where a spouse has been absent from the house for at least seven years (Section 162). Section 167 prohibits forcibly or fraudulently taking away or detaining a child under 18 years of age or harboring a child with knowledge that such taking away or detaining has occurred, with intent to deprive a parent or guardian of their child. The offence is punishable by seven years of imprisonment, but the accused can claim the right to possess the child in good faith, or in the case of illegitimate children, claim to be the parent as a defence.
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