In their 2016 Country Reports on Human Rights Practices, the U.S. State Department noted that argues that in Malawi, ‘are denied by law and practice basic civil, political, social, and economic rights’. They raised concern about the continued punishment of people based on same-sex sexual activities.

A report by the Centre for the Development of People (CEDEP) and Centre for Human Rights and Rehabilitation (CHRR) on violence and discrimination based on real or perceived sexual orientation and gender identity in Malawi, issued in 2016, has shown that people in Malawi continue to suffer horrific violations including violent attacks, denial of access to health services, social stigma, and unsolicited revelation of individuals’ sexual identity.

An Afrobarometer survey conducted in 2014 has shown that over 90% of Malawians are opposed to having a homosexual as a neighbor. This suggests an over whelming negative attitude towards homosexuality in Malawi.

The Malawian government is viewed as being caught between trying to appease Western donors, upon whose aid the Malawian economy heavily depends, and responding to conservative anti-homosexuality lobbies within Malawi. The Justice Minister redacted claims that there had been a moratorium on LGBTI-related crimes within a week of the announcement under pressure from both the Malawi Law Society – who accused the government of bowing to Western pressure – and the Malawi Council of Churches who remains committed to a staunch belief that homosexuality should remain criminalised because it contradicts Christian and African values.

The divided opinion about same-sex conduct has resulted in calls for a national referendum on whether ‘homosexuality must be legal or not’. In 2015, the president spoke on the national television that his government would resort to calling for a referendum to give the public an opportunity to decide. The referendum never took place. However, in November 2016 the Ministry of Justice requested the Malawi Human Rights Commission to do a national inquiry to inform the government whether to decriminalize anti-gay laws. However, the inquiry has not taken place as at February 2018 due to lack of consensus on the process. In response to the 2012 moratorium, Human Rights Watch expressed their concern that anti-LGBTI legislation – even if unenforced – has significant consequences upon LGBTI communities who often face ‘blackmail, restricted access to health services, and lack of access to justice.’ Indeed, in 2009 Mary Shawa, the Secretary for Nutrition, HIV and AIDS, publicly noted that Malawi’s inability to fight HIV/AIDS was in part due to a lack of recognition and services for the homosexual population, among which the HIV prevalence rate is thought to be 25%. Research conducted by the Malawian NGO Centre for Development of People (CEDEP) in collaboration with several American Universities, revealed that ‘approximately 34 percent of gay men in the country had been blackmailed or denied services such as housing or healthcare due to their sexual orientation. Additionally, 8% of those surveyed said they had been beaten by police or other security forces due to their sexual orientation’.

In 2009, Steven Monjeza and his partner Tiwonge Chimbalanga were convicted of ‘unnatural offences’ and ‘gross indecency’ under Sections 153 and 156 of the Penal Code after they were married in a traditional ceremony. The magistrate in the case denied them bail on the premise that the ‘public out there is angry with them’ and they would be put at danger if bail was allowed. They were each sentenced to the maximum of 14 years in prison with hard labour, after the judge noted; ‘I will give you a scaring sentence so that the public be protected from people like you, so that we are not tempted to emulate this horrendous example.’ Many international organisations including the then UN Secretary Mr Ban Ki Moon lobbied the President of Malawi to intervene in the case, arguing that the case was an affront to the human rights of all Malawians. They urged him to ensure that charges were dropped and that Malawi ‘uphold constitutional principles of equality, privacy and dignity’. The couple were later pardoned and Chimbalanga received refugee status in South Africa.

Malawian courts have not decided any cases about asylum applications based on sexual orientation or gender identity as of November 2021.  However, in 2017, the government gave asylum to two individuals who had cited in their application persecution based on sexual orientation and gender identity.