MALAWI-SOGI-TBs-CAT

Concluding Observations on Report 1 (2022) (Link)

Sexual and gender-based violence

29. The Committee raises the following concerns:

(a) While welcoming several legislative, policy and institutional measures adopted by the State party to combat violence against women and girls, including sensitization and training activities, the establishment of 20 one-stop centres in hospitals, victim support units in 135 police stations, the toll-free telephone lines and simplified reporting procedures, among others, the Committee is concerned by reports indicating the prevalence of and an increase in this phenomenon and victims’ difficulties in accessing medical and psychosocial services, as well as legal support. The Committee also notes data provided by the State party on registered gender-based violence cases since 2005, but regrets the lack of comprehensive information on the investigations and prosecutions of these cases, including domestic violence, and on the assistance, support services and compensation provided to victims in all adjudicated cases;

(b) Marital rape is not criminalized under the Penal Code. In this connection, the Committee is concerned that section 62 of the Marriage, Divorce and Family Relations Act foresees criminalization of marital rape merely during judicial separation;

(c) Sections 137A, 153 (a) and (c), 154 and 156 of the Penal Code criminalize consensual same-sex activities, with a prison sentence of up to 14 years. The reports received indicate that such criminalization renders LGBT+ persons particularly vulnerable to violence by both public officials and private persons and such violence is generally underreported to the national authorities due to fear of reprisals, prosecution and further discrimination. In this regard, the Committee notes the moratorium in place since 2012 on the prosecution for consensual same-sex acts but remains concerned about the information received that a transgender woman was charged under article 153 (c) of the Penal Code in 2021 (arts. 2, 12– 14 and 16).

30. The State party should ensure that all cases of gender-based violence, especially those involving actions or omissions by State authorities or other entities that engage the international responsibility of the State party under the Convention, are thoroughly investigated with a gender-sensitive and culturally sensitive approach, that alleged perpetrators are prosecuted and, if found guilty, punished appropriately, and that the victims or their families receive redress, including adequate compensation. In particular, the Committee recommends that the State party:

(a) Ensure the strict enforcement of the Prevention of Domestic Violence Act and amend the Penal Code to criminalize marital rape under all circumstances;

(b) Ensure that victims of sexual and gender-based violence benefit from protection and have access to medical and legal services, including counselling, safe and adequately funded shelters and redress, including rehabilitation;

(c) Intensify efforts to raise awareness among both men and women, including through educational and media campaigns, of the criminal nature of gender- based violence against women in order to challenge its social acceptance and address the stigma discouraging victims from reporting it;

(d) Take measures to prevent violence and discrimination against LGBT+ persons on the basis of their sexual orientation and gender expression or identity, including by repealing the above-mentioned sections of the Penal Code and ensuring that its complaints mechanisms are accessible to and capable of facilitating effective protection for victims of or at risk of violence;

(e) Collect and share with the Committee data, disaggregated by age, sex and type of crime, on the number of complaints, investigations, convictions and sentences imposed for sexual and gender-based violence, including domestic violence, rape, marital rape, and violence targeting persons based on their sexual orientation or gender expression or identity, on the protection measures, legal and medical services and redress provided to victims.

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Asylum system and non-refoulement

37. While welcoming the State party’s efforts to afford protection to asylum-seekers, the Committee is concerned that, according to section 11 of the Refugee Act, a negative decision of the Refugee Committee concerning an application for refugee status can be only appealed to the appropriate Minister and that there is no judicial review of such an outcome. It is further concerned about reports that perceived LGBT+ asylum-seekers are often refused registration and processing of their applications. Furthermore, the Committee notes with concern the absence of a procedure to identify vulnerability among asylum-seekers, including torture, trafficking and sexual and gender-based violence, which heightens the risk of violating the principle of non-refoulement. It is also seriously concerned about the situation of persons in Dzaleka refugee camp, notably the severe overcrowding, the lack of access to basic services, as well as allegations of gender-based violence and restrictions on movement. It is further concerned about reports suggesting that migrant children are placed in detention, often with adults, in poor living conditions and with no access to appropriate assistance to take account of their vulnerable situation (arts. 2–3 and 16).

38. The State party should abide by its obligations under article 3 of the Convention and ensure that, in law and in practice, persons may not be expelled, returned or extradited to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture or ill-treatment. In particular, the State party should guarantee that all asylum-seekers have access to fair procedures, notably a detailed and thorough interview to assess the risk that they may be subjected to torture and ill-treatment in their country of origin in view of their individual circumstances and ensure rapid and appropriate identification of persons in vulnerable situations and provide them with the necessary access to health-care and psychological services. It should immediately address the precarious conditions in the Dzaleka camp, ensure that migrant children are not detained solely because of their immigration status and are not detained with adults, other than their family members, and adopt security measures to protect all persons placed in camps. The State party should consider amending the Refugee Act by introducing judicial review of administrative decisions to expel individuals and ensure that a right of appeal has suspensive effect.

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