Malawi prohibits any form of abortion including aiding and trading in materials for abortion with a maximum of 14 yeas imprisonment for the service provider, 7 years for the women and 3 years for the trader. Here is an overview of Laws and Policies governing Sexual and Reproductive Health and Rights in Malawi.
1. Sexual and Reproductive Health Rights
The Republic of Malawi (Constitution) Act provides for the principles of national policy and places a duty on the government to actively promote and implement legislation and policies to ensure that there is equal opportunity for all Malawians to get adequate access to health.
The Gender Equality Act specifically provides for the rights of every person to adequate Sexual and Reproductive Health, family planning, the right to choose whether to have a child (subject to any other written law), the right to protection from Sexually Transmitted Infections and the right to control fertility and choose the appropriate contraceptives. The Gender Equality Act also places duties on Health officers who provide Sexual and Reproductive Health services.
The Disability Act also provides for the rights of disabled people to equal access to health services including Sexual and Reproductive Health Services.
2. Restrictions to Sexual and Reproductive Health Rights
Before 2023, the Penal Code criminalized consensual sexual intercourse among minors. After litigation commenced in the case of AJ v State, Constitutional Case No. 4&5 of 2021 which sparked important public debates, the law was amended by the Penal Code (Amendment) Act, 2023 to allow for consensual sex between minors with an age difference of no more than 2 years.
Abortion is illegal and the Penal Code imposes several punishments for procuring or attempting to procure an abortion. It imposes a 14-year sentence on any person who attempts to procure an abortion, a 7-year sentence on a woman who attempts to procure her own abortion or consents to it, and a 3-year sentence to anyone who supplies drugs or instruments which are to be used to procure an abortion.
Section 243 of the Penal Code however allows for a surgical abortion if the operation is reasonable having regard to the patient’s state at the time and all the circumstances of the case. This exception was re-affirmed by the court in the case of The State (on the application by HM (guardian) on behalf of CM (minor) v the Hospital Director of Queen Elizabeth Central Hospital and the Minister of Health – Judicial review Cause No 03 of 2021.
The Law surrounding abortion in Malawi is ambiguous and an attempt to introduce legislation to clarify acceptable circumstances in which a pregnancy can be terminated was made through the Termination of Pregnancy Bill. The political class in Malawi are resolutely opposed to any changes in the legislation on abortion in the country. 80 percent of the MPs surveyed in one study said they would vote against tabling the Bill. President Chakwera, himself a pastor, remained ostensibly neutral and let parliament decide whether to debate the hotly contested Bill. Yet the sponsors were bullish and confident: ‘Our committee has done massive sensitizing and consultation meetings with fellow legislators, members of the communities, church leaders, traditional leaders who were failing to understand this Bill. I have full confidence that once the Bill is presented in Parliament, it will receive massive support and the legislators will allow it to be discussed.’ Traditional leaders and religious leaders had also registered their support for the Bill (Paramount Chief Kawinga of Machinga and Chair of the Islamic Commission for Justice and Freedom Shaibu Abdul Rahman Ajasie). Despite this public show of support, the Bill was not tabled due to opposition from other legislators. Malawi CSO actors and lawyers nonetheless filed a suit to get the country’s high court to pronounce the legality of abortion in the country.
Before 2002, Malawi had no policies to regulate the implementation of sexual and reproductive health services, but we have seen the development of the Reproductive Health Policy, 2002 which then was updated throughout the years and as of now, the current policy in force is the National Sexual and Reproductive Health and Rights (SRHR) Policy (2017-2022). This policy aims to improve the provision of several reproductive health services and prevent and manage unsafe abortions. The policy states that abortions shall be provided to individuals to the full extent of existing national laws and guidelines shall be formulated to properly interpret the law.
Other policies that are in place supporting the implementation of sexual and reproductive health and rights in Malawi are the National Sexual and Reproductive Health and Rights Strategy (2021-2025), Malawi National Reproductive Health Service Delivery Guidelines(2014 – 2019), Standard Operating Procedures for Adolescent Girls and Young Women Programming in Malawi, Malawi National Strategic Plan for HIV and AIDS Sustaining gains and accelerating progress towards epidemic control (2020-2025), Minimum Standards for the Integration of HIV and Sexual & Reproductive Health in the SADC Region and National Youth Friendly Health Services Strategy (2015–2020).