Penal Code

Chapter 7:01

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Citation: Chapter 7:01
Date: 31 December 2014
Language: English
Type: Act

Penal Code

Chapter 7:01

Commenced on 1 April 1930
[This is the version of this document as it was at 31 December 2014 to 9 October 2018.]
[Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]

An Act to establish a Code of Criminal Law.

Part I – General provisions

Chapter I
Preliminary

1. Short title

This Act may be cited as "The Penal Code" and hereinafter referred to as "this Code".

2. Savings of certain laws

(1)Nothing in this Code shall affect—

(a)the liability, trial or punishment of a person for an offence against the common law or against any other law in force in the Republic other than this Code;

(b)the liability of a person to be tried or punished for an offence under the provisions of any law in force in relation to the jurisdiction of courts in respect of acts done beyond the ordinary jurisdiction of such courts;

(c)the power of any court to punish a person for contempt of such court;

(d)the liability or trial of a person, or the punishment of a person under any sentence passed or to be passed, in respect of any act done or commenced before the commencement of this Code;

(e)any power of the President to grant any pardon or to remit or commute in whole or in part or to respite the execution of any sentence passed or to be passed; or

(f)any of the Acts or Regulations for the time being in force for the Defence Force of Malaŵi or the Malaŵi Police Service.

(2)Where a person commits an offence which is punishable under this Code and is also punishable under another Act or Regulation, he shall not be punished for that offence both under that Act or Regulation and also under this Code.[1 of 2011]

Chapter II
Interpretation

3. General rule of construction of the code

This Code shall be interpreted in accordance with the principles of legal interpretation that—

(a)take full account of the principles and provisions enshrined in the Constitution; and

(b)where applicable, have regard to common law and comparable English criminal law.[1 of 2011]

4. Interpretation

In this Code, unless the context otherwise requires—"Act" includes any subsidiary legislation made under the authority of any Act;"court" means a court of competent jurisdiction;"dangerous harm" means harm endangering life;"dwelling-house" includes any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling-house is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise;"felony" means an offence which is declared by law to be a felony or, if not declared to be a misdemeanor, is punishable, without proof of previous conviction, with death, or with imprisonment with hard labour for three years or more;"grievous harm" means any harm which amounts to a main or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense;"harm" means any bodily hurt, disease or disorder whether permanent or temporary;"husband" or "wife" includes a person living in a marriage relationship as recognized by section 22 (5) of the Constitution;[1 of 2011]"judicial proceeding" includes any proceeding had or taken in or before any court, tribunal, commission of inquiry, or person, in which evidence may be taken on oath or not;[1 of 2011]"knowingly" used in connexion with any term denoting uttering or using, implies knowledge of the character of the thing uttered or used;"maim" means the destruction or permanent disabling of any external or internal organ, membrane or sense;"misdemeanor" means any offence which is not a felony;"money" includes bank notes, bank drafts, cheques and any other orders, warrants or requests for the payment of money;"night" or "night-time" means the interval between half-past six o’clock in the evening and half-past six o’clock in the morning;"oath" includes affirmation or declaration;"offence" means an act, attempt or omission punishable by law;[1 of 2011]"person" and "owner" and other like term when used with reference to property includes corporations of all kinds and any other association of persons capable of owning property, and also when so used includes the Government;"person employed in the public service" means any person holding any of the following offices or performing the duty thereof, whether as a deputy or otherwise, namely—(a)any civil office including the office of President, the power of appointing a person to which or of removing from which is vested in the President or in a Minister or in any public Commission or Board; or(b)any office to which a person is appointed or nominated by Act or by election; or(c)any civil office, the power of appointing to which or removing from which is vested in any person or persons holding an office of any kind included in either paragraph (a) or (b); or[1 of 2011](d)any office of arbitrator or umpire in any proceeding or matter submitted to arbitration by order or with the sanction of any court, or in pursuance of any Act; and the said term further includes—(i)a member of a commission of inquiry appointed under or in pursuance of any Act;(ii)any person employed to execute any process of a court;[1 of 2011](iii)all persons employed in the Defence Force of Malaŵi or Police Service of the Republic;[1 of 2011](iv)all persons in the employment of any government department of the Republic;(v)a person acting as a Minister of religion of whatsoever denomination, in so far as he performs functions in respect of the notification of intending marriage or in respect of the solemnization of marriage, or in respect of the making or keeping of any register or certificate of marriage, birth, baptism, death or burial, but not in any other respect;(vi)a person employed in the service of any LocalAuthority or of any board, Council, society or other authority, whether incorporated or otherwise, established by or under any Act, other than the Companies Act;[Cap. 46:03](vii)a person employed in any class of employment which may be specified as public service by the Minister by notice published in the Gazette;(viii)a member of Parliament;[1 of 2011](ix)any Chief."possession", "be in possession of" or "have in possession" includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to, or occupied by oneself or not) for the use or benefit of oneself or of any other person; and if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;"property" includes anything animate or inanimate capable of being the subject of ownership;"public" refers not only to all persons within Malaŵi but also to the persons inhabiting or using any particular place, or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct in respect of which such expression is used;"publicly" when applied to acts done means either—(a)that they are so done in any public place as to be seen by any person whether such person be or be not in a public place; or(b)that they are so done in any place not being a public place as to be likely to be seen by any person in a public place;"public place" or "public premises" includes any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court;"public way" includes any highway, market place, square, street, bridge or other way which is lawfully used by the public;"utter" includes using or dealing with or attempting to use or attempting to induce any person to use, deal with or act upon the thing in question;[1 of 2011]"valuable security" includes any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property;"vessel" has the same meaning as assigned thereto in the Inland Waters Shipping Act;[Cap. 71:01][1 of 2011]"wound" means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane.[1 of 2011]

Chapter III
Territorial application of this code

5. Offence committed partly within and partly beyond the jurisdiction

Except as otherwise provided in this Code, when an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or takes any part in such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.[1 of 2011]

6. Jurisdiction and procedure in respect of certain offences committed in countries outside malawi

(1)Any Malaŵi citizen being a person employed in the public service of Malaŵi who commits, in any other country, when acting or purporting to act in the course of his employment, any offence which, if committed in Malaŵi, would be punishable in Malaŵi, shall be guilty of an offence of the same nature, and subject to the same punishment, as if the offence had been committed in Malaŵi.

(2)A person may be proceeded against, charged, tried and punished for an offence against this section in any place in Malaŵi in which he is apprehended or is in custody as if the offence had been committed in that place; and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that place.

Chapter IV
General rules as to criminal responsibility

7. Ignorance of law

Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.

8. Bona fide claim of right

A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.

9. Intention: motive

(1)Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

(2)Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3)Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

(4)In determining whether a person has committed an offence a court shall not be bound to infer that he intended or foresaw a result of his actions by reason only of its being the natural and probable consequence of those actions, but shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inference from the evidence as appears proper in the circumstances.[1 of 2011]

10. Mistake of fact

(1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

(2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.[1 of 2011]

11. Presumption of sanity

Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

12. Insanity

Subject to the provision of this Code with regard to persons suffering from diminished responsibility, a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind, incapable of understanding what he is doing, or knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.[1 of 2011]

13. Intoxication

(1)Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.

(2)Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing, and—

(a)the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b)the state of intoxication was caused by medicinal administration of a generally or specially prescribed drug whether that drug was self-administered or not; or[1 of 2011]

(c)the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.[1 of 2011]

(3)Where the defence under the preceding subsection is established, then in a case falling under paragraph (a) thereof the accused person shall be discharged, and in a case falling under paragraph (b) the provisions of section 12 shall apply.

(4)Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

(5)For the purposes of this section "intoxication" shall be deemed to include a state produced by narcotics or drugs.[1 of 2011]

14. Immature age

(1)A person under the age of ten years is not criminally responsible for any act or omission.

(2)A person under the age of fourteen years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

(3)A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.[1 of 2011]

15. Judicial officers

Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.

16. Compulsion

A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or committed only because during the whole of the time in which it is being done or committed the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders, instantly to kill him or his spouse, child or any person under his charge or to do him, his spouse, child or any person under his charge grievous bodily harm if he refuses; but threats of future injury do not excuse any offence.[1 of 2011]

17. Defence of person or property

Subject to any express provisions in this Code or any other law in operation in Malaŵi, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of common law.[1 of 2011]

18. Use of force in effecting arrest

Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.

19. Compulsion by spouse

A spouse is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of his or her spouse; but on a charge against a spouse for any offence other than treason, murder or genocide it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the other spouse.[1 of 2011]

20. Person not to be punished twice for the same offence

A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence.

Chapter V
Parties to offences

21. Principal offenders

(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

(a)every person who actually does the act or makes the omission which constitutes the offence;

(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)every person who aids or abets another person to commit the offence; and

(d)any person who counsels or procures any person to commit the offence.

(2)In a case arising under subsection (1) (d), the accused may be charged with himself committing the offence or with counselling or procuring its commission.

(3)A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4)Any person who procures another to do or omit to do any act of such a nature that if he had himself done the act or made the omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.[1 of 2011]

22. Offences committed by joint offenders in prosecution of common purpose

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

23. Counselling another to commit an offence

When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel, drawing such inference from the evidence as appears proper in the circumstances; and in either case the person who gave counsel is deemed to have counselled the other person to commit the offence actually committed by him.[1 of 2011]

24. Offences by corporations, societies, etc.

Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and shall be liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.

Chapter VI
Punishments

25. Different kinds of punishments

The following punishments may be inflicted by a court—

(a)death;

(b)imprisonment;

(c)fine;

(d)compensation;

(e)finding security to keep the peace and be of good behaviour; or to come up for sentence;

(f)liability to police supervision;

(g)forfeiture;

(h)suspended sentence;

(i)public work;

(j)community service;

(k)probation;

(l)weekend or public holiday;

(m)attendance centre orders;

(n)any other punishment provided by this Code or by any other written law.[8 of 1999][1 of 2011]

26. Sentence of death

(1)When any person is sentenced to death the sentence shall direct that he shall suffer death by hanging within the prison in which he is detained.

(2)Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of 18 years, but in lieu thereof the court shall sentence him to be detained during the President’s pleasure, on the advice of the Board of Visitors appointed under the Children and Young Persons Act.[Cap 26:03]

(3)When a person has been sentenced to be detained during the President’s pleasure under the last subsection (2), the presiding judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

(4)Where a woman convicted of an offence punishable with death is found, in accordance with section 327 of the Criminal Procedure and Evidence Code, to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment for life instead of a sentence of death.[Cap 8:01][1 of 2011]

27. Imprisonment

(1)All imprisonment shall be with or without hard labour in the discretion of the court, unless the imposition of imprisonment only without hard labour is expressly prescribed by law.

(2)A person liable to imprisonment for life or any other period may be sentenced for any shorter term.

(3)A person liable to imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment.

28. ***

[repealed by 1 of 2011]

28A. Short sentences of imprisonment

(1)Where a court passes a sentence of imprisonment on an offender for a period of not exceeding three months, or where a convicted person is required to serve a sentence of such duration in lieu of payment of a fine, and the court is satisfied—

(a)onanapplicationmadebeforeitbyoronbehalfoftheconvicted person of the existence of the conditions set out in subsection (2); and

(b)on a report from the Chief Commissioner of Prisons that satisfactory arrangements exist for the sentence to be served in the manner applied for,

it may order that the sentence be served at stated periods.

(2)The conditions required for the purposes of subsection (1) shall be that—

(a)the convicted person was in employment at the time of the commission of the offence or that he is or was in employment at the time of conviction;

(b)the convicted person would continue to be in such employment if it were not for such conviction and the obligation to serve the sentence of imprisonment;

(c)the discontinuance of the convicted person from such employment would cause hardship to his dependants; and

(d)the convicted person consents to serve the sentence of imprisonment in the manner ordered by the court.

(3)Where an order under subsection (1) is made, the court shall cause a copy of the order to be served on the police officer who is in charge of the police station in the District in which the convicted person resides or will reside.

(4)A stated period for the purposes of this section shall be at the discretion of the court but shall not be less than twenty-four hours of continuous duration for any one week.

(5)When any convicted person as is mentioned in this section has failed to serve any stated portion of his sentence, the Chief Commissioner of Prisons may, on application made by way of summons, so inform the court which sentenced such person under subsection (1), and the court may thereupon, after hearing the convicted person, revoke the order for imprisonment at stated periods and substitute therefor a continuous sentence not exceeding the unserved portion of the sentence originally passed.

(6)The court may on application made by a convicted person vary the commencement or duration of a stated period.[1 of 2011]

29. Fines

(1)Where a fine is imposed under any law, then in the absence of express provisions relating to such fine in such law the following provisions shall apply—

(a)where no sum is expressed to which the fine may extend the amount of the fine which may be imposed is unlimited, but shall not be excessive;

(b)in the case of an offence punishable with a fine or a term of imprisonment the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court.

(2)In any case in which any person is sentenced to a fine with or without imprisonment, or is ordered to pay any costs under section 33, or is adjudged to make any compensation under section 32, or is adjudged to pay any sum under any Act, the court may—

(a)direct by its sentence that, in default of payment of the fine, costs, compensation or sum, as the case may be, the convicted person shall suffer imprisonment, community service or public work for a certain period, which imprisonment, community service or public work shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and[1 of 2011]

(b)issue a warrant for the levy of the amount on the moveable and immoveable property of the offender by distress and sale under warrant:[1 of 2011]

Provided that if the sentence directs that in default of payment of the fine, costs, compensation or sum the offender shall be imprisoned or, shall do community service or public work, and if such offender has undergone the whole of such imprisonment or completed his community service or public work, in default, no court shall issue a distress warrant unless for special reasons to be recorded in writing it considers it necessary to do so.

(3)In the absence of express provisions in any Act relating thereto the term of imprisonment ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 33 or compensation under section 32 or in respect of the non-payment of a fine or of any sum adjudged to be paid under any Act shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any case the maximum fixed by the following scale—

Amount	Maximum period
Not exceeding K1,000	1 month
Exceeding K1,000 but not exceeding K5,000	3 months
Exceeding K5,000 but not exceeding K10,000	6 months
Exceeding K10,000 but not exceeding K20,000	8 months
Exceeding K20,000	12 months

[11 of 1989][1 of 2011]

(4)Any term of imprisonment imposed under this section in default of the payment of any fine, costs or compensation, or of any sum adjudged to be paid under any Act, shall terminate whenever the payment is made or the sum ordered to be paid is levied by process of law.

(5)The Minister may, by Order published in the Gazette, amend the monetary sums prescribed in the scale in subsection (3).[11 of 1989][1 of 2011]

30. Forfeiture

When any person is convicted of an offence under any of the following sections, namely, sections 90, 91, 92, 110, 111, 331A and 396, the court may, in addition to or in lieu of any penalty which may be imposed, order the forfeiture of any property which has passed in connexion with the commission of the offence, or, if such property cannot be forfeited or cannot be found, of such sum as the court shall assess as the value of the property; and any property or sum so forfeited shall be dealt with in such manner as the Minister may direct. Payment of any sum so ordered to be forfeited may be enforced in the same manner and subject to the same incidents as in the case of the payment of a fine.[1 of 2011]

31. Suspension of forfeiture of right to carry on business

(1)Where a person is convicted of any offence mentioned in Chapter XXXII and such offence arose out of, or was committed in the course of, any trade or business, whether carried on by such person or not, the court by which the conviction is recorded may, in addition to any other penalty which it may impose, make an order, having effect for such period as the court may think fit, prohibiting such person from carrying on, or being concerned or employed, directly or indirectly, in carrying on, any such trade or business or any branch of any such trade or business of the same or similar character.[1 of 2011]

(2)Any person who fails to comply with an order made under subsection (1) shall be guilty of an offence and shall be liable to a fine of K10,000 and to imprisonment for six months.[1 of 2011]

32. Compensation

(1)Any person who is convicted of an offence may be adjudged to make compensation to any person who has suffered personal injury or loss of property by such offence. Any such compensation may be either in addition to or in substitution for any other punishment.[1 of 2011]

(2)A person shall not be precluded from instituting civil proceedings but the court shall take cognisance of the earlier compensation awarded in criminal proceedings under subsection (1).[1 of 2011]

(3)Where a person dies as a result of an offence, compensation under subsection (1) may be awarded by the court to any surviving spouse, child or dependant of the deceased person.[1 of 2011]

33. Costs

Subject to the limitations imposed by section 142 of the Criminal Procedure and Evidence Code a court may order any person convicted of an offence to pay the costs of and incidental to the prosecution or any part thereof.[Cap 8:01]

34. General punishment for misdemeanours

When in this Code no punishment is specially provided for any misdemeanor, it shall be punishable with a fine or with imprisonment for a term not exceeding two years or with both.

35. Sentences cumulative unless otherwise ordered

Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction, shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or of any part thereof:Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under section 29 (2) (a) or of any part thereof.[1 of 2011]

36. Escaped convicts to serve unexpired sentences when recaptured

When sentence is passed under this Code on an escaped convict, such sentence—

(a)if of death, or fine shall, subject to this Code and of any other law, take effect immediately;

(b)if of imprisonment, shall run consecutively or concurrently, as the court shall order, with the unexpired portion of the sentence which the convict was undergoing when he escaped.

[1 of 2011]

37. ***

[repealed by 5 of 1969].

Part II – Crimes

Division I — Offences against public order

Chapter VII
Treason and other offences against the government’s authority

38. Treason

(1)Any person who—

(a)prepares, endeavours or conspires to overthrow the lawfully constituted Government by force or other unlawful means;

(b)prepares, endeavours or conspires to procure by force any alteration of the law or the policies of the lawfully constituted Government;

(c)prepares, endeavours or conspires to carry out by force any enterprise which would, if effected, usurp the executive power of the State;

(d)incites or assists any person or conspires to invade the Republic with force or unlawfully to subject any part of the Republic to armed attack by land, sea or air, or assists in the preparation of any such invasion or attack;

(e)in time of war and with intent to give assistance to the enemy, does any act which is likely to assist the enemy; or

(f)recruits or trains persons for the implementation of any of the aforementioned purposes, or participates in any such recruitment or training,

shall be guilty of treason and shall on conviction be sentenced to death.

(2)In this section, the expressions—

(a)"the lawfully constituted Government" includes the President and any Minister of the Government;

(b)"force" means either—

(i)force used in such a manner as, whether by reason of the number of persons involved or the means used or both, to imperil or be likely to imperil the safety of the State or to cause, or be likely to cause, death or grievous bodily harm or serious damage to property, or

(ii)a show of aggression calculated to arouse reasonable apprehension that force, as defined in subparagraph (i) will be used;

(c)"armed attack" shall include any unlawful use of force constituting an act of rebellion against or calculated to undermine the authority of the Government or any arm thereof.

(3)A person may be tried and punished for an offence against this section whether committed within or outside the Republic.

39. Concealment of treason

Any person who—

(a)becomes an accessory after the fact to treason; or

(b)knowing that any person intends to commit treason, does not give information thereof with all reasonable despatch to the President, an administrative officer, magistrate, or officer of police or use other reasonable endeavours to prevent the commission of the offence,

shall be guilty of the felony termed misprision of treason and liable to imprisonment for life.

40. Promoting war, etc., amongst groups

Any person who, without lawful authority, carries on or makes preparation for carrying on or aids in or advises carrying on of or preparation for any war or war-like undertaking, violence, fighting or similar undertaking with, for, by, or against any ethnic, tribal, racial, religious, political or other group of people, shall be guilty of a felony and shall be liable to imprisonment for life.[1 of 2011]

41. Inciting to mutiny

Any person who advisedly attempts to effect any of the following purposes, that is to say—

(a)to seduce any person serving in the Defence Force of Malaŵi or the Malaŵi Police Service from his duty and allegiance to the President; or

(b)to incite any such persons to commit an act of mutiny or any traitorous or mutinous act; or

(c)to incite any such persons to make or endeavour to make a mutinous assembly,

shall be guilty of a felony, and shall be liable to imprisonment for life.[1 of 2011]

42. Aiding soldiers or policemen in acts of mutiny

Any person who—

(a)aids, abets, or is accessory to, any act of mutiny by; or

(b)incites to sedition or to disobedience to any lawful order given by a superior officer,

any non-commissioned officer or private of the Defence Force of Malaŵi or any police officer, shall be guilty of a misdemeanor.[1 of 2011]

43. Inducing soldiers or policemen to desert

Any person who, by any means whatever, directly or indirectly—

(a)procures or persuades or attempts to procure or persuade to desert; or

(b)aids, abets, or is accessory to the desertion of; or

(c)having reason to believe he is a deserter, harbours or aids in concealing,

any non-commissioned officer or private of the Defence Force of Malaŵi, or any police officer, shall be guilty of an offence and shall be liable to imprisonment for life.[1 of 2011]

44. Aiding prisoners of war to escape

Any person who—

(a)knowingly and advisedly aids an alien enemy of the Republic, being a prisoner of war in the Republic, whether such prisoner is confined in a prison or elsewhere or is suffered to be at large on his parole, to escape from his prison or place of confinement, or, if he is at large on his parole, to escape from the Republic shall be guilty of a felony and shall be liable to imprisonment for life;

(b)negligently and unlawfully permits the escape of any such person as is mentioned in paragraph (a), shall be guilty of a misdemeanor.

[1 of 2011]

45. Definitions

For the purposes of the four next following sections of this Code—"import" includes—(a)to bring into the Republic; and(b)to bring within the inland waters of the Republic whether or not the publication is brought ashore, and whether or not there is an intention to bring the same ashore;"publication" includes all written and printed matter, and any gramophone or other record, perforated roll, recording tape, cinematograph film or other contrivance by means of which any words or ideas may be mechanically produced, represented or conveyed, and everything, whether of a nature similar to the foregoing or not, containing any visible representation or by its form, shape or other characteristics, or in any manner capable of producing, representing or conveying words or ideas, and every copy or reproduction of any publication;"periodical publication" includes every publication issued periodically or in parts or numbers at intervals whether regular or irregular;"seditious publication" means a publication having a seditious intention;"seditious words" means words having a seditious intention.[24 of 2012]

46. ***

[repealed by 24 of 2012]

47. ***

[repealed by 24 of 2012]

48. ***

[repealed by 24 of 2012]

49. ***

[repealed by 24 of 2012]

50. Seditious intention

(1)A "seditious intention" is an intention—

(a)to bring into hatred or contempt or to excite disaffection against the person of the President, or the Government;

(b)to excite the subjects of the President to procure the alteration, otherwise than by lawful means, of any other matter in the Republic; or

(c)to bring into hatred or contempt or to excite disaffection against the administration of justice in the Republic; or

(d)to raise discontent or disaffection amongst the subjects of the President; or

(e)to promote feeling of ill-will and hostility between different classes of the population of the Republic.

But an act, speech or publication is not seditious if not done, spoken or published, as the case may be, with intention to incite violence or by reason only that it intends—

(i)to show that the President has been misled or mistaken in any of his measures; or

(ii)to point out errors or defects in the Government or Constitution or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(iii)to persuade the subjects of the President to attempt to procure by lawful means the alteration of any matter in the Republic; or

(iv)to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of the Republic.

[32 of 1993]

(2)In determining whether the intention with which any act was done, any words were spoken, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances which he so conducted himself.[12 of 1993][32 of 1993]

51. Seditious offences

(1)Any person who—

(a)does or attempts to do, or makes any preparation to do any act with a seditious intention;

(b)utters any seditious words;

(c)prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;

(d)imports any seditious publication, unless he has no reason to believe that it is seditious,

shall be liable for a first offence to a fine of K50,000 and to imprisonment for five years and for a subsequent offence to imprisonment for seven years; and any seditious publication shall be forfeited.[1 of 2011]

(2)Any person who without lawful excuse has in his possession any seditious publication shall be liable for a first offence to a fine of K20,000 and to imprisonment for three years and for a subsequent offence to imprisonment for four years; and such publication shall be forfeited.[1 of 2011]

(3)It shall be a defence to a charge under the preceding subsection that, if the person charged did not know that the publication was seditious when it came into his possession, he did, as soon as the nature of the publication became known to him, deliver the publication to the nearest District Commissioner or to the officer in-charge of the nearest police station.[1 of 2011]

52. Forfeiture of machine and prohibition of publication

(1)Any printing machine which has been, or is reasonably suspected of being, used for or in connexion with the printing or reproduction of a seditious publication may be seized or otherwise secured by a police officer pending the trial and conviction or discharge or acquittal of any person accused of printing or reproducing any seditious publication; and, when any person is convicted of printing or reproducing a seditious publication, the court may, in addition to any other penalty which it may impose, order that the printing machine on which the publication was printed or reproduced shall be either confiscated for a period not exceeding one year, or be forfeited, and may make such order whether or not the person convicted is, or was at the time when the publication was printed or reproduced, the owner of the printing machine. A printing machine forfeited under this subsection shall be sold, and the proceeds, less expenses, shall be paid into the Consolidated Fund.

(2)When a proprietor, publisher, printer or editor of a newspaper is convicted of printing or publishing a seditious publication in a newspaper, the court may, in addition to any other punishment it may impose, and whether or not it has made an order under subsection (1), make an order prohibiting any further publication of the newspaper for a period not exceeding one year.

(3)The court may, at any time, on the application of the Attorney General and on taking such security, if any, for good behaviour as the court may see fit to order, revoke any order made by it forfeiting or confiscating a printing machine or prohibiting further publication of a newspaper.

(4)A court, before ordering the forfeiture or confiscation of a printing machine under this section, shall be satisfied that the printing machine was the printing machine upon or by which the seditious publication was printed or reproduced.

(5)In any case in which a printing machine has been secured or confiscated under this section, the Inspector General of Police may, in his discretion, cause—

(a)the printing machine or any part of it to be removed; or

(b)any part of the machine to be sealed so as to prevent its use.

Provided that the owner of the printing machine or his agents shall be entitled to reasonable access to it to keep it in working order.

(6)The Inspector General of Police or any police officer acting in pursuance of the powers conferred by this section shall not be liable for any damage caused to a printing machine, whether by neglect or otherwise, not being damage wilfully caused to the machine.

(7)Any person who uses or attempts to use a printing machine confiscated under subsection (1) shall be liable to imprisonment for three years.

(8)Any person who prints or publishes a newspaper in contravention of an order made under subsection (2) shall be liable to imprisonment for three years.

(9)In this section the expression "printing machine" includes a printing press, copying press, type-setting machine, photographic, duplicating or engraving apparatus, or other machine or apparatus used for or in connexion with printing or reproducing publications, and the type, appurtenances and equipment thereof.

53. Legal proceedings

(1)No prosecution for an offence under section 51 or 52 shall be begun except within six months after the offence is committed:Provided that where a person leaves the Republic within six months of committing such offence, the prosecution for such offence may be begun within six months from the date when such person returns to the Republic after leaving it.

(2)A person shall not be prosecuted for an offence under section 51 without the written consent of the Director of Public Prosecutions.

54. Unlawful oaths to commit capital offences

Any person who—

(a)administers or is present at, and consents to the administering of, any oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence punishable with death; or

(b)takes any such oath or engagement, not being compelled to do so,

shall be guilty of a felony, and shall be liable to imprisonment for life.

55. Other unlawful oaths to commit offences

Any person who—

(a)administers or is present at, and consents to the administering of, any oath or engagement in the nature of an oath, purporting to bind the person who takes it to act in any of the ways following, that is to say—

(i)to engage in any mutinous or seditious enterprise;

(ii)to commit any offence not punishable with death;

(iii)to disturb the public peace;

(iv)to be a member of any association, society or confederacy, formed for the purpose of doing any such act as aforesaid;

(v)to obey the orders or commands of any committee or body of men not lawfully constituted, or of any leader or commander or other person not having authority by law for that purpose;

(vi)not to inform or give evidence against any associate, confederate or other person;

(vii)not to reveal or discover any unlawful association, society or confederacy, or any illegal act done or to be done or any illegal oath or engagement that may have been administered or tendered to or taken by himself or any other person, or the import of any such oath or engagement; or

(b)takes any such oath or engagement, not being compelled to do so,

shall be guilty of a felony, and shall be liable to imprisonment for ten years.

56. Compelling another person to take an oath

(1)Any person who by the use of physical force, or by threat or intimidation of any kind, compels another person to take an oath or engagement in the nature of an oath purporting to bind the person who takes it to act or not to act in any way shall be guilty of a felony and shall be liable to imprisonment for seven years.

(2)Any person who is present at the consents to the administering, by physical force or under threat or intimidation of any kind, of any oath or engagement in the nature of an oath, to any person purporting to bind the person who takes it to act or not to act in any way shall be guilty of a felony and shall be liable to imprisonment for three years.

57. Compulsion, how far a defence

It shall not be a defence for a person who takes any oath or engagement in the nature of an oath mentioned in section 54, section 55 or section 56 to prove that he was compelled to do so unless within five days after the taking of such oath or engagement in the nature of an oath or, if he is prevented by physical force or sickness, within five days after the termination of such physical force or sickness, he reported to the police, or, if he is in the actual service of the Defence Force of Malaŵi or in the Malaŵi Police Service, either he so reported as aforesaid, or he reported to his commanding officer, everything he knows concerning the matter, including the person or persons by whom and in whose presence, and the place where, and the time when, the oath or engagement was administered or taken.[1 of 2011]

58. Person present deemed to consent to administering of oath unless he reports to authorities

Any person who is present at the administering of an oath or engagement in the nature of an oath mentioned in section 54, section 55 or section 56 shall be deemed to have consented to the administering of such oath or engagement unless within five days thereafter, or, if he is prevented by physical force or sickness, within five days after the termination of such physical force or sickness he reports to the police, or if he is in the actual service of the Defence Force of Malaŵi or in the Malaŵi Police Service he so reports as aforesaid, or he reports to his commanding officer, everything he knows concerning the matter, including the person or persons by whom and in whose presence, and the place where, and the time when, the oath or engagement in the nature of an oath was administered.[1 of 2011]

59. Unlawful drilling

(1)Any person who—

(a)without the permission of the President trains or drills any other person to the use of arms or the practice of military exercises, movements, or evolutions; or

(b)is present at any meeting or assembly of persons, held without the permission of the President, for the purpose of training or drilling any other persons to the use of arms or the practice of military exercises, movements, or evolutions,

shall be guilty of a felony, and shall be liable to imprisonment for seven years.

(2)Any person who, at any meeting or assembly held without the permission of the President, is trained or drilled to the use of arms or the practice of military exercises, movements, or evolutions, or who is present at any such meeting or assembly for the purpose of being so trained or drilled, shall be guilty of a misdemeanor.

60. Publication of false news likely to cause fear and alarm to the public

(1)Any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace shall be guilty of a misdemeanor.

(2)It shall be a defence to a charge under subsection (1) if the accused proves that, prior to publication, he took such measures to verify the accuracy of such statement, rumour or report as to lead him reasonably to believe that it was true.

60A. ***

[repealed by 17 of 1994].

Chapter VIII
Offences affecting relations with foreign states and external tranquillity

61. Defamation of foreign dignitaries

Any person who without such justification or excuse as would be sufficient in the case of the defamation of a private person publishes anything intended to be read, or any sign of visible representation, tending to degrade, revile or expose to hatred or contempt any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb the peace and friendship between the Republic and the country to which such prince, potentate, ambassador or dignitary belongs, shall be guilty of a misdemeanor.[1 of 2011]

62. Foreign enlistment

Any person commits a misdemeanor who does any of the following acts without the licence of the President, that is to say—

(a)who prepares or fits out any naval or military expedition to proceed against any friendly state, or is engaged in such preparation or fitting-out, or assists therein, or is employed in any capacity in such expedition; or

(b)who, being a citizen of Malaŵi, accepts or agrees to accept any commission or engagement in the military or naval service of any foreign state at war with any friendly state, or, whether a citizen of Malaŵi or not, induces any other person to accept or agree to accept any commission or engagement in the military or naval service of any such foreign state as aforesaid; or

(c)who, being a citizen of Malaŵi, quits or goes on board any ship with a view of quitting the Republic, with intent to accept any commission or engagement in the military or naval service of any foreign state at war with a friendly state, or, whether a citizen of Malaŵi or not, induces any other person to quit or to go on board any ship with a view of quitting the Republic with the like intent; or

(d)who, being the master or owner of any ship, knowingly either takes on board, or engages to take on board, or has on board such ship any illegally enlisted person; or

(e)who, with intent or knowledge, or having reasonable cause to believe that the same will be employed in the military or naval service of any foreign state at war with any friendly state builds, agrees to build, causes to be built, equips, despatches, or causes or allows to be despatched, any ship, or issues or delivers any commission for any ship:Provided that a person building, causing to be built, or equipping a ship in any of the cases aforesaid, in pursuance of a contract made before the commencement of such war as aforesaid, is not liable to any of the penalties specified in this section in respect of such building or equipping if—

(i)upon a proclamation of neutrality being issued he forthwith gives notice to the President that he is so building, causing to be built, or equipping such ship, and furnishes such particulars of the contract and of any matters relating to, or done, or to be done under the contract as may be required by the President; and

(ii)he gives such security, and takes and permits to be taken such other measures, if any, as the President may prescribe for ensuring that such ship shall not be despatched, delivered, or removed without the licence of the President until the termination of such war as aforesaid.

[1 of 2011]

63. Piracy

(1)Any person who commits piracy shall be guilty of an offence and shall be liable to death or imprisonment for life.

(2)Piracy consists of any of the following acts—

(a)any illegal acts of violence, detention or any act of depredation committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed—

(i)on the high seas against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii)against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b)any act of voluntary participation in the operation of a ship or aircraft with the knowledge of facts making it a pirate ship or aircraft;

(c)any act of inciting or intentionally facilitating an act described in paragraph (a) (i) or (ii).

(3)The acts of piracy, as defined in subsection (2), committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship.

(4)A ship or aircraft is considered to be a pirate ship or aircraft—

(a)if it is intended by the person in dominant control to be used for the purposes of committing one of the acts referred to in subsection (2); or

(b)if the ship or aircraft has been used to commit any such act as long as it remains under the control of the persons guilty of that act.

(5)For the purposes of any proceedings before a court in Malaŵi in respect of piracy, the provisions set out in subsection (2) shall be treated as constituting part of the law of nations and any such court having jurisdiction in respect of piracy committed on the high seas shall have jurisdiction in respect of piracy committed by or against a ship or aircraft wherever the piracy is committed.[1 of 2011]

Chapter IX
Unlawful assemblies, riots and other offences against public tranquility

64. Definition of society and unlawful society

(1)A society includes any combination of persons, whether the society be known by any name or not.

(2)A society is an unlawful society if formed for, or carries on, any of the following purposes—

(a)levying war or encouraging or assisting any person to levy war on the Government or the inhabitants of any part of the Republic;

(b)killing or injuring or inciting to the killing or injuring of any person;

(c)destroying or injuring or inciting to the destruction or injuring of any property;

(d)committing or inciting to acts of violence or intimidation;

(e)interfering with, or resisting, or inciting to interference with or resistance to the administration of the law; or

(f)disturbing or inciting to the disturbance of peace and order in any part of the Republic.

[32 of 1993][1 of 2011]

65. Managing unlawful society

Any person who manages or assists in the management of an unlawful society shall be guilty of a felony and shall be liable to imprisonment for fourteen years.

66. Being members of unlawful society

Any person who—

(a)is a member of an unlawful society; or

(b)knowingly allows a meeting of an unlawful society, or of members of an unlawful society, to be held in any house, building or place belonging to or occupied by him, or over which he has control; or

(c)carries or displays anything whatsoever indicating that he is a member of or in any way associated with an unlawful society or shouts or utters any slogan or makes any sign associated with an unlawful society; or

(d)contributes or solicits anything as a subscription or otherwise in the name of or to be used directly or indirectly for the benefit of an unlawful society; or

(e)in any way takes part in any activity of an unlawful society or carries on any activity in the direct or indirect interests of an unlawful society in which activity it was or could have engaged prior to the date upon which it became an unlawful society,

shall be guilty of a felony, and shall be liable to imprisonment for seven years.

67. Prosecutions under section 65 and 66

(1)A prosecution for an offence under sections 65 and 66 shall not be instituted except with the consent of the Director of Public Prosecutions:Provided that a person charged with such an offence may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that the consent of the Director of Public Prosecutions to the institution of a prosecution for the offence has not been obtained, but no further or other proceedings shall be taken until that consent has been obtained.

(2)Any person who attends a meeting of an unlawful society shall be presumed, until and unless the contrary is proved, to be a member of the society.

(3)When any books, accounts, writings, papers, documents, banners or insignia of, or relating to, an unlawful society are found in the possession or under the control of any person, or when any person wears any of the insignia of, or is marked with any mark of, an unlawful society, it shall be presumed, until the contrary is proved, that such person is a member of the unlawful society.

(4)When any books, accounts, lists of members, seals, minutes or correspondence of, or relating to, an unlawful society are found in the possession or under the control of any person, it shall further be presumed, until the contrary is proved, that such person assists in the management of the unlawful society.[1 of 2011]

68. Powers of entry, asset, search, etc.

Any police officer of or above the rank of inspector may, without warrant, enter, with or without assistance, any house or building or into any place in which he has reason to believe—

(a)that a meeting of an unlawful society or of persons who are members of an unlawful society is being held; or

(b)that a member of an unlawful society resides or is; or

(c)that documents, funds, moneys or other information relating to an unlawful society may be found,

and arrest or cause to be arrested all persons found therein, and search such house, building or place and seize or cause to be seized all insignia, banners, arms, books, papers, documents and all other property which he may have reasonable cause to believe to belong to any unlawful society or to be in any way connected with the purpose of the meeting or with the unlawful society.

69. Disposal of property of an unlawful society

(1)When a society is found by a court to be an unlawful society, the following consequences shall ensue—

(a)the property of the society within the Republic shall forthwith vest in an officer appointed by the court;

(b)the officer appointed by the court shall proceed to wind-up the affairs of the society, and after satisfying and providing for all debts and liabilities of the society and the cost of the winding-up, if there shall then be any surplus assets, he shall prepare and submit to the court a scheme for the application of such surplus assets;

(c)such scheme, when submitted for approval, may be amended by the court in such way as it shall think proper in the circumstances of the case;

(d)the approval of the court to such scheme shall be denoted by the endorsement thereon of a memorandum of such approval signed by the court, and, upon this being done, the surplus assets, the subject of the scheme, shall be held by such officer upon the terms and to the purposes thereby prescribed;

(e)for the purpose of the winding-up, the officer appointed by the court shall have all the powers vested in the Official Receiver for the purpose of the discovering of the property of a debtor and the realization thereof.

(2)The court may, for the purpose of enabling a society to wind-up its own affairs, suspend the operation of this section for such period as to him shall seem expedient.

(3)Subsection (1) shall not apply to any property seized at any time under section 68.[1 of 2011]

70. Forfeiture of insignia, etc.

Subject to section 69, the insignia, banners, arms, books, papers, documents and other property belonging to an unlawful society shall be forfeited and shall be dealt with in such manner as the court may direct.[1 of 2011]

71. Unlawful assembly

(1)When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in a manner likely to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.

(2)It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

(3)When an unlawful assembly has begun to execute its purpose by a breach of the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.[1 of 2011]

72. Punishment of unlawful assembly

Any person who takes part in an unlawful assembly shall be guilty of a misdemeanor and shall be liable to imprisonment for one year.

73. Punishment of riot

Any person who takes part in a riot shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

74. Making proclamation for rioters to disperse

Any magistrate or, in his absence, any police officer of or above the rank of assistant inspector or any commissioned officer in the Defence Force of Malaŵi, in whose view twelve or more persons are riotously assembled, or who apprehends that a riot is about to be committed by twelve or more persons assembled within his view, may make or cause to be made a proclamation in the President’s name, in such form as he thinks fit, commanding the rioters or persons so assembled to disperse peaceably.[1 of 2011]

75. Dispersion of rioters after proclamation made

If upon the expiration of a reasonable time after such proclamation made, or after the making of such proclamation has been prevented by force, twelve or more persons continue riotously assembled together, any person authorized to make proclamation, or any police officer or any other person acting in aid of such person or police officer, may do all things necessary for dispersing the persons so continuing assembled, or for apprehending them or any of them, and, if any person makes resistance, may use all such force as is reasonably necessary for overcoming such resistance, and shall not be liable in any criminal or civil proceeding for having, by the use of such force, caused harm or death to any person.

76. Rioting after proclamation

If proclamation is made, commanding the persons engaged in a riot, or assembled with the purpose of committing a riot, to disperse, every person who, at or after the expiration of a reasonable time from the making of such proclamation, takes or continues to take part in the riot or assembly shall be guilty of a felony and shall be liable to imprisonment for life.

77. Preventing or obstructing the making of proclamation

Any person who forcibly prevents or obstructs the making of such proclamation as mentioned in section 74 shall be guilty of a felony, and shall be liable to imprisonment for life; and if the making of the proclamation is so prevented, every person who, knowing that it has been so prevented, takes or continues to take part in the riot or assembly shall be liable to imprisonment for life.[1 of 2011]

78. Rioters demolishing buildings, etc.

Any persons who, being riotously assembled together, unlawfully pull down or destroy or begin to pull down or destroy any building, railway, machinery or structures shall be guilty of a felony and each of them shall be liable to imprisonment for life.

79. Rioters injuring buildings, machinery, etc.

Any persons who, being riotously assembled together, unlawfully damage any of the things mentioned in section 78 shall be guilty of a felony and each of them shall be liable to imprisonment for seven years.[1 of 2011]

80. Riotously preventing the sailing of ship

All persons are guilty of a misdemeanor who, being riotously assembled, unlawfully and with force prevent, hinder, or obstruct the loading or unloading, or the sailing or navigating of any vessel, or unlawfully and with force board any vessel with intent to do so.

81. Prohibition of carrying offensive weapons without lawful authority or reasonable excuse

(1)Any person who, without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any place any offensive weapon shall be guilty of an offence and shall be liable to a fine of K10,000 and to imprisonment for two years.

(2)Where any person is convicted of an offence under subsection (1), the court may make an order for the forfeiture or disposal of any weapon in respect of which the offence was committed.

(3)A police officer may arrest without warrant any person whom he has reasonable cause to believe to be committing an offence under subsection (1) if the police officer is not satisfied as to that person’s identity or place of residence, or has reasonable cause to believe that it is necessary to arrest him in order to prevent the commission by him of any other offence in the course of committing which an offensive weapon might be used.

(4)In this section, an offensive weapon means any article made or adapted for use, or suitable, for causing injury to the person or intended by the person having it with him for such use by him.[1 of 2011]

82. Forcible entry

(1)Any person who, in order to take possession thereof, enters on any lands or tenements in a violent manner, whether such violence consists in actual force applied to any other person or in threats or in breaking open any house or in collecting an unusual number of people, shall be guilty of the misdemeanor termed forcible entry.

(2)It is immaterial whether he is entitled to enter on the land or not, provided that a person who enters upon lands or tenements of his own, but which are in the custody of his servants or bailiff, does not commit the offence of forcible entry.[1 of 2011]

83. Forcible detainer

Any person who, being in actual possession of land without colour of right, holds possession of it in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace against a person entitled by law to the possession of the land shall be guilty of the misdemeanor termed forcible detainer.

84. Fighting in public

Any person who takes part in a fight in a public place shall be guilty of a misdemeanor and shall be liable to imprisonment for one year.

85. Challenge to fight a duel

Any person who challenges another to fight a duel, or attempts to provoke another to fight a duel, or attempts to provoke any person to challenge another to fight a duel, shall be guilty of a misdemeanor.

86. Threatening violence

(1)Any person who—

(a)with intent to intimidate or annoy any person, threatens to break or injure a dwelling-house; or

(b)with intent to alarm any person discharges loaded firearms or commits any other breach of the peace,

shall be guilty of an offence and shall be liable to imprisonment for three years.

(2)If the offence is committed in the night the offender shall be liable to imprisonment for four years.[1 of 2011]

87. Proposing violence at assemblies

(1)Any person who, without lawful excuse, at any assembly makes any statement or behaves in any manner which is calculated or is likely to incite or induce the persons assembled—

(a)to kill or do physical injury to any person or to any class or community of persons, or

(b)wilfully to destroy or do any damage to any property; or

(c)to deprive any person of the possession or use of any property either permanently or temporarily,

shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

(2)In this section the word "assembly" means an assembly of three or more persons.[1 of 2011]

88. Intimidation

(1)Any person who—

(a)by word, attitude, manner or conduct, threatens another with any injury to his person, reputation or property or to the person, reputation or property of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which he is legally entitled to do, or to prevent that person from carrying out any duties or work essential to the maintenance of public security, public tranquillity or public order or to the maintenance of essential services, as a means of avoiding the execution of such threat; or

(b)in the like manner and with the like intention threatens persons generally or any class or description of persons; or

(c)is the publisher, editor or printer of any newspaper, pamphlet or other document containing any such threat as is referred to in paragraph (a) or (b); or

(d)is the writer of, or directly or indirectly causes any person to receive, any letter, writing or other document containing any such threat as is referred to in paragraph (a) or (b),

shall be guilty of an offence.

(2)For the purposes of this section a person is deemed to print a newspaper, pamphlet or other document if he prepares it by printing, lithography, typewriting, photography, or any other mode of reproducing matter.

(3)Any person who commits an offence against subsection (1), shall be liable to a fine of K50,000 and to imprisonment for five years and for a subsequent offence to imprisonment for seven years; and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or with imprisonment for a term which may extend to seven years, shall be liable to imprisonment for ten years.[1 of 2011]

89. Assembling for the purpose of smuggling

Any persons who assemble together, to the number of two or more, for the purpose of unshipping, carrying, or concealing any goods subject to customs duty and liable to forfeiture under any law relating to the customs, shall be guilty of a misdemeanor, and each of them shall be liable to a fine of K30,000 or to imprisonment for two years.[1 of 2011]

Division II - Offences against the administration of lawful authority

Chapter X
Corruption and the abuse of office

90. Official corruption

Any person who—

(a)being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly solicits, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or

(b)corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for any person employed in the public service, or to, upon, or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed,

shall be guilty of a felony and shall be liable to imprisonment for twelve years.[21 of 1995][1 of 2011]

91. Extortion by public officers

Any person who, being employed in the public service, takes or accepts from any person for the performance of his duty as such officer, any reward beyond his proper pay and emoluments, or any promise of such reward, shall be guilty of a felony and shall be liable to imprisonment for twelve years.[21 of 1995][1 of 2011]

92. Public officers receiving property to show favour

Any person who, being employed in the public service, receives any property or benefit of any kind for himself, on the understanding, express or implied, that he shall favour the person giving the property or conferring the benefit, or any one in whom that person is interested, in any transaction then pending, or likely to take place, between the person giving the property or conferring the benefit, or any one in whom he is interested, and any person employed in the public service, shall be guilty of a felony and shall be liable to imprisonment for twelve years.[21 of 1995][1 of 2011]

93. Officers charged with administration of property of a special character or with special duties

Any person who, being employed in the public service, and being charged by virtue of his employment with any judicial or administrative duties respecting property of a special character, or respecting the carrying on of any manufacture, trade or business of a special character, and having acquired or holding, directly or indirectly, a private interest in any such property, manufacture, trade, or business, discharges any such duties with respect to the property, manufacture, trade, or business in which he has such interest or with respect to the conduct of any person in relation thereto, shall be guilty of a misdemeanor and shall be liable to imprisonment for one year.

94. False claims by officials

Any person who, being employed in the public service in such a capacity as to require him or enable him to furnish returns or statements touching any sum payable or claimed to be payable to himself or to any other person, or touching any other matter required to be certified for the purpose of any payment of money or delivery of goods to be made to any person, makes a return or statement touching any such matter which is, to his knowledge, false in any material particular, shall be guilty of a misdemeanor.

95. Abuse of office

(1)Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another shall be guilty of a misdemeanor.

(2)If the act is done or directed to be done for purposes of gain he shall be guilty of a felony and shall be liable to imprisonment for three years.

(3)A prosecution for any offence under this or either of section 93 or 94 shall not be instituted except by or with the sanction of the Director of Public Prosecutions.[1 of 2011]

96. False certificates by public officers

Any person who, being authorized or required by law to give any certificate touching any matter by virtue whereof the rights of any person may be prejudicially affected, gives a certificate which is, to his knowledge, false in any material particular shall be guilty of a misdemeanor.

97. Unauthorized administration of oaths

Any person who administers an oath, or takes solemn declaration or affirmation or affidavit, touching any matter with respect to which he had not by law any authority to do so shall be guilty of a misdemeanor and shall be liable to imprisonment for one year:Provided that this section shall not apply to an oath, declaration, affirmation or affidavit administered by or taken before a magistrate in any matter relating to the preservation of the peace or the punishment of offences or relating to inquiries respecting sudden deaths, nor to an oath, declaration, affirmation, or affidavit administered or taken for some purpose which is lawful under the laws of another country, or for the purpose of giving validity to an instrument in writing which is intended to be used in another country.

98. False assumption of authority

Any person who—

(a)not being a judicial officer, assumes to act as a judicial officer; or

(b)withoutauthorityassumestoactasapersonhavingauthorityby law to administer an oath or take a solemn declaration or affirmation or affidavit or to do any other act of a public nature which can only be done by persons authorized by law to do so; or

(c)represents himself to be a person authorized by law to sign a document testifying to the contents of any register or record kept by a lawful authority, or testifying to any fact or event, and signs such document as being so authorized, when he is not, and knows that he is not, in fact, so authorized,

shall be guilty of a misdemeanor.

99. Personating public officers

Any person who—

(a)personates any person employed in the public service on an occasion when the latter is required to do any act or attend in any place by virtue of his employment; or

(b)falsely represents himself to be a person employed in the public service, and assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment,

shall be guilty of an offence and shall be liable to imprisonment for ten years.[20 of 1973]

100. Threat of injury to persons employed in public service

Whoever holds out any threat of injury to any person employed in the public service, or to any person in whom he believes that person employed in the public service to be interested, for the purpose of inducing that person employed in the public service to do any act or to forbear or delay to do any act connected with the exercise of the public functions of such person employed in the public service shall be guilty of a misdemeanor.

Chapter XI
Offences relating to the administration of justice

101. Perjury and subornation of perjury

(1)Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding or intended to be raised in that proceeding, shall be guilty of the misdemeanor termed perjury.

(2)For the purposes of subsection (1)—

(a)it is immaterial whether the testimony is given on oath or in any other manner authorized by law;

(b)the forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used;

(c)it is immaterial whether the false testimony is given orally or in writing;

(d)it is immaterial whether the court or tribunal is properly constituted or is held in the proper place or not, if it actually acts as a court or tribunal in the proceedings in which the testimony is given;

(e)it is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceeding or not.

[1 of 2011]

(3)Any person who aids, abets, counsels, procures, or suborns another person to commit perjury shall be guilty of the misdemeanor termed subornation of perjury.

(4)In this section, the expression "judicial proceeding" includes a proceeding before any court, tribunal, or person having by law power to hear, receive and examine evidence on oath.

(5)When a statement made for the purposes of a judicial proceeding is, not made on oath before the tribunal itself, but is made before a person authorized by law to administer an oath to the person who makes the statement, and to record and authenticate the statement, or is made in any form and manner permitted by any written law, it shall for the purposes of this section be treated as having been made in a judicial proceeding.

(6)Where, for the purposes of a judicial proceeding in Malaŵi, a person is lawfully sworn—

(a)in a foreign jurisdiction under the authority or an Act of Parliament of that jurisdiction; or

(b)in a tribunal of any foreign state,

a statement made by such person (unless the Act of Parliament under which it was made otherwise specifically provides) shall be treated for the purposes of this section as having been made in the judicial proceeding in Malaŵi for which it was made.[1 of 2011]

102. Perjury in written statement

Section 101 shall apply in relation to the making by any person of a written statement tendered in evidence by virtue of section 175 of the Criminal Procedure and Evidence Code, as it applies in relation to the making of an oral statement by a person lawfully sworn as a witness.[Cap. 8:01][1 of 2011]

103. False statements by interpreters

If any person, lawfully sworn as an interpreter in a judicial proceeding, wilfully makes a statement material in the proceeding which he knows to be false, or does not believe to be true, he shall be guilty of perjury.

104. Punishment of perjury and subornation

Any person who commits perjury or suborns perjury shall be liable to imprisonment for seven years.

105. Fabricating evidence

Any person who, with intent to mislead any court or tribunal in any judicial proceeding—

(a)fabricates evidence by any means other than perjury or subornation of perjury; or

(b)knowingly makes use of such fabricated evidence,

shall be guilty of an offence, and shall be liable to imprisonment for seven years.[1 of 2011]

106. False swearing

Any person who swears falsely or makes a false affirmation or declaration before any person authorized to administer an oath or take a declaration under such circumstances that the false swearing or declaration if committed in a judicial proceeding would have amounted to perjury shall be guilty of a misdemeanor.

107. Deceiving witnesses

Any person who practises any fraud or deceit, or knowingly makes or exhibits any false statement, representation, token, or writing, to any person called or to be called as a witness in any judicial proceeding, with intent to affect the testimony of such person as a witness, shall be guilty of a misdemeanor.

108. Destroying evidence

Any person who, knowing that any book, document, or thing of any kind whatsoever, is or may be required in evidence in a judicial proceeding, wilfully removes or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, shall be guilty of a misdemeanor.

109. Conspiracy to defeat justice and interference with witnesses

Any person who—

(a)conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert, or defeat the course of justice; or

(b)in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so; or

(c)obstructs or in any way interferes with or knowingly prevents the execution of any legal process, civil or criminal,

shall be guilty of an offence and shall be liable to imprisonment for five years.

110. Compunding felonies

Any person who asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal a felony, or will abstain from, discontinue, or delay a prosecution for a felony, or will withhold any evidence thereof, shall be guilty of a misdemeanor.

111. Compounding penal actions

Any person who, having brought, or under pretence of bringing, an action against another person in order to obtain from him a penalty for any offence committed or alleged to have been committed by him, compounds the action without the order or consent of the court in which the action is brought or is to be brought, shall be guilty of a misdemeanor.

112. Advertisements for stolen property

Any person who—

(a)publicly offers a reward for the return of any property which has been stolen or lost, and in the offer makes use of any words purporting that no questions will be asked, or that the person producing such property will not be seized; or

(b)publicly offers to return to any person who may have bought or advanced money by way of loan upon any stolen or lost property the money so paid or advanced, or any other sum of money or reward for the return of such property; or

(c)prints or publishes any such offer,

shall be guilty of a misdemeanor.[1 of 2011]

113. Offences relating to judicial proceedings

(1)Any person who—

(a)within the premises in which any judicial proceeding is being had or taken, or within the precincts of the same, shows disrespect, in speech or manner, to or with reference to such proceeding, or any person before whom such proceeding is being had or taken; or[1 of 2011]

(b)having been called upon to give evidence in a judicial proceeding, fails to attend, or having attended, refuses to be sworn or to make an affirmation or, having been sworn or affirmed, refuses without lawful excuse to answer a question or to produce a document, or remains in the room in which such proceeding is being had or taken, after the witnesses have been ordered to leave such room; or

(c)causes an obstruction or disturbance in the course of a judicial proceeding; or

(d)while a judicial proceeding is pending, makes use of any speech or writing misrepresenting such proceeding or capable of prejudicing any person in favour of or against any parties to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being had or taken; or

(e)publishes a report of the evidence taken in any judicial proceeding which has been directed to be held in private; or

(f)attempts wrongfully to interfere with or influence a witness in a judicial proceeding, either before or after he has given evidence, in connexion with such evidence; or

(g)dismisses a servant because he has given evidence on behalf of a certain party to a judicial proceeding; or

(h)wrongfully retakes possession of land from any person who has recently obtained possession by a writ of court; or

(i)commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken; or[1 of 2011]

(j)obtains, discloses or solicits any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any judicial proceedings,[1 of 2011]

shall be guilty of an offence and shall be liable to imprisonment for three years.

(2)When any offence against subsection (1) (a), (b), (c) or (i) is committed in view of the court, the court may cause the offender to be detained in custody and at any time before the rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine of K10,000 or in default of payment to imprisonment without hard labour for six months.[1 of 2011]

(3)This section shall be deemed to be in addition to and not in derogation from the power of the High Court to punish for contempt of court.

(4)Subsection (1) (j) shall not apply to any disclosure of any particulars—

(i)in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connexion with the delivery of that verdict; or

(ii)in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or in relation to the publication of any particulars so disclosed.[1 of 2011]

Chapter XII
Rescues, escapes and obstructing officers of court of law

114. Rescue

(1)Any person, who by force rescues or attempts to rescue from lawful custody any other person—

(a)if such last-named person is under sentence of death or imprisonment for life, or charged with an offence punishable with death or imprisonment for life shall be guilty of a felony, and shall be liable to imprisonment for life;

(b)if such other person is imprisoned on a charge or under sentence for any offence other than those specified in paragraph (a), shall be guilty of a felony and shall be liable to imprisonment for seven years; and

(c)in any other case, shall be guilty of a misdemeanor.

(2)If the person rescued is in the custody of a private person, the offender must have notice of the fact that the person rescued is in such custody.[1 of 2011]

115. Escape

Any person who, being in lawful custody, escapes from such custody, shall be guilty of a misdemeanor.

116. Permitting prisoners to escape

Any person who, having another person lawfully in his custody, intentionally or negligently permits that other person to escape, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

117. Aiding prisoners to escape

Any person who—

(a)aids a prisoner in escaping or attempting to escape from lawful custody; or

(b)conveys anything or causes anything to be conveyed into a prison with intent to facilitate the escape of a prisoner,

shall be guilty of a felony and shall be liable to imprisonment for seven years.

118. Removal, etc., of property under lawful seizure

Any person who, when any property has been attached or taken under the process of authority of any court, knowingly, and with intent to hinder or defeat the attachment or process receives, removes, retains, conceals, or disposes of such property, shall be guilty of a felony and shall be liable to imprisonment for three years.

119. Obstructing court officers

Any person who wilfully obstructs or resists any person lawfully charged with the execution of an order or warrant of any court, shall be guilty of a misdemeanor and shall be liable to imprisonment for one year.

Chapter XIII
Miscellaneous offences against public authority

120. Frauds and breaches of trust by public officers

Any person employed in the public service who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person, shall be guilty of a misdemeanor.

121. Neglect of official duty

Every person employed in the public service who wilfully neglects to perform any duty which he is bound either by common law or by Act to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter, shall be guilty of a misdemeanor.

122. False information to person employed in the public service

Whoever gives to any person employed in the public service any information which he knows or believes to be false intending thereby to cause, or knowing it to be likely that he will thereby cause such person employed in the public service—

(a)to do or omit anything which such person employed in the public service ought not to do or omit if the true state of facts respecting which such information is given were known to him; or

(b)to use the lawful power of such person employed in the public service to the injury or annoyance of any person,

shall be guilty of a misdemeanor and shall be liable to a fine of K10,000 and to imprisonment for three years.[1 of 2011]

123. Disobedience of statutory duty

Everyone who wilfully disobeys any Act by doing any act which it forbids, or by omitting to do any act which it requires to be done, and which concerns the public or any part of the public, shall be guilty of a misdemeanor and shall be liable, unless it appears from the Act that it was the intention of the Legislature to provide some other penalty for such disobedience, to imprisonment for two years.

124. Soliciting, etc., to break the law

(1)Any person who, whether in writing or by words or by his behaviour or otherwise—

(a)solicits or incites any other person to fail to comply with or to contravene any law in force in Malaŵi or in any part thereof; or

(b)indicates or implies to any person that it would be incumbent or desirable to fail to comply with or to contravene any such law,

shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

(2)It shall be no defence to a charge under this section that the solicitation, incitement, indication or implication, as the case may be, neither has had nor could have had any effect.

125. Soliciting public officers, etc., to fail to carry out their duties

Any person who, whether in writing or by words or by his behaviour or otherwise, solicits or incites—

(a)any person employed in the public service;

(b)a Chief or any person in the service of a Chief,

to fail to carry out any of his duties as such shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

126. Arrest without warrant

A police officer or Chief or any person acting under the direction of a police officer or Chief may arrest without warrant any person whom he has reasonable cause to believe to be committing or to have committed an offence under section 124 or 125.

Division III — Offences injurious to the public in general

Chapter XIV
Offences relating to religion

127. Insult to religion of any class

Any person who destroys, damages or defiles any place of worship or any object which is held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be guilty of a misdemeanor.

128. Disturbing religious assemblies

Any person who voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship or religious ceremony shall be guilty of a misdemeanor.

129. Trespassing on burial places

Every person who with the intention of wounding the feelings of any person or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or in any place of sepulture or in any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the purpose of funeral ceremonies, shall be guilty of a misdemeanor.

130. Writing or uttering, words with intent to wound religious feelings

Any person who, with the deliberate intention of wounding the religious feelings of any other person, writes any word, or any person who, with the like intention, utters any word or makes any sound in the hearing of any other person or makes any gesture or places any object in the sight of any other person, shall be guilty of a misdemeanor and shall be liable to imprisonment for one year.

131. Hindering burial of dead body, etc.

(1)Whoever unlawfully hinders the burial of the dead body of any person, or without lawful authority in that behalf disinters, dissects, or harms the dead body of any person or, being under a duty to cause the dead body of any person to be buried, fails to perform such duty, shall be guilty of a misdemeanor.

(2)In this section the word "burial" means burial in earth, interment or any other form of sepulture, or the cremation or any other mode of disposal of a dead body and "buried" has a corresponding meaning.[1 of 2011]

Chapter XV
Offences against morality

132. Definition of rape

Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, shall be guilty of the felony termed rape.

133. Punishment of rape

Any person who commits the offence of rape shall be liable to be punished with death or with imprisonment for life.[1 of 2011]

134. Attempted rape

Any person who attempts to commit rape shall be guilty of a felony and liable to imprisonment for life.[1 of 2011]

135. Abduction

Any person who, with intent to marry or carnally know a woman of any age, or to cause her to be married or carnally known by any other person, takes her away, or detains her, against her will, shall be guilty of a felony and shall be liable to imprisonment for seven years.

136. Abduction of girls under sixteen

Any person who unlawfully takes an unmarried girl under the age of sixteen years out of the custody or protection of her father or mother or other person having the lawful care or charge of her, and against the will of such father or mother or other person, shall be guilty of a misdemeanor.

137. Indecent assaults on females

(1)Any person who unlawfully and indecently assaults any woman or girl shall be guilty of a felony and shall be liable to imprisonment for fourteen years.[1 of 2011]

(2)It shall be no defence to a charge for an indecent assault on a girl under the age of sixteen years to prove that she consented to the act of indecency.

(3)Insulting the modesty of a womanWhoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or intrudes upon the privacy of such woman, shall be guilty of a misdemeanor and shall be liable to imprisonment for one year.

137A. Indecent practices between females

Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

138. Defilement of girls under sixteen years of age

(1)Any person who carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment for life.[1 of 2011]

(2)Any person who attempts to have carnal knowledge of any girl under the age of sixteen years of shall be guilty of a felony and shall be liable to imprisonment for fourteen years:Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court, jury or assessors before whom the charge shall be brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

139. Defilement of idiots or imbeciles

Any person who, knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile, shall be guilty of a felony and shall be liable to imprisonment for fourteen years.

140. Procuration

Any person who—[1 of 2011]

(a)procures or attempts to procure any girl or woman under the age of twenty-one years to have unlawful carnal connexion, either in Malaŵi or elsewhere, with any other person or persons; or

(b)procures or attempts to procure any woman or girl to become, either in Malaŵi or elsewhere, a common prostitute; or

(c)procures or attempts to procure any woman or girl to leave Malaŵi with intent that she may become an inmate of or frequent a brothel elsewhere; or

(d)procures or attempts to procure any woman or girl to leave her usual place of abode in Malaŵi with intent that she may, for the purposes of prostitution, become an inmate of or frequent a brothel either in the Republic or elsewhere,

shall be guilty of an offence and shall be liable to imprisonment for fourteen years.[1 of 2011]

141. Procuring defilement of woman by threats or fraud or administering drugs

Any person who—[1 of 2011]

(a)by threats or intimidation procures or attempts to procure any woman or girl to have any unlawful carnal connexion, either in Malaŵi or elsewhere; or

(b)by false pretences or false representations procures any woman or girl to have any unlawful carnal connexion, either in Malaŵi or elsewhere; or

(c)applies, administers to, or causes to be taken by any woman or girl any drug, matter, or thing, with intent to stupefy or overpower so as thereby to enable any person to have unlawful carnal connexion with such woman or girl,

shall be guilty of an offence and shall be liable to imprisonment for fourteen years:[1 of 2011]Provided that no person shall be convicted of an offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused.

142. Householder, etc., permitting defilement of girl under sixteen years of age on his premises

Any person who, being the owner or occupier of premises or having or acting or assisting in the management or control thereof, induces or knowingly suffers any girl under the age of sixteen years to resort to or be upon such premises for the purpose of being carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, shall be guilty of a felony, and shall be liable to imprisonment for five years.[1 of 2011]

143. Detention with intent or in brothel

(1)Any person who detains any woman or girl against her will—

(a)in or upon any premises with intent that she may be unlawfully and carnally known by any man, whether any particular man or generally; or[1 of 2011]

(b)in any brothel,

shall be guilty of an offence and shall be liable to imprisonment for five years.

(2)Constructive detention by witholding clothesWhen a woman or girl is in or upon any premises for the purpose of having any unlawful carnal connexion, or is in any brothel, a person shall be deemed to detain such woman or girl in or upon such premises or in such brothel, if, with intent to compel or induce her to remain in or upon such premises or in such brothel, such person withholds from such woman or girl any wearing apparel or other property belonging to her, or where wearing apparel has been lent or otherwise supplied to such woman or girl by or by the directions of such person, such person threatens such woman or girl with legal proceedings if she takes away with her the wearing apparel so lent or supplied.

(3)No legal proceedings, whether civil or criminal, shall be taken against any such woman or girl for taking away or being found in possession of any such wearing apparel as was necessary to enable her to leave such premises or brothel.

144. Power of search

(1)If it appears to any magistrate, on information made before him on oath by any parent, relative or guardian of any woman or girl or other person who, in the opinion of the magistrate, is acting bona fide in the interests of any woman or girl, that there is reasonable cause to suspect that such woman or girl is unlawfully detained for immoral purposes by any person in any place within the jurisdiction of such magistrate, such magistrate may issue a warrant authorizing the person named therein to search for, and, when found, to take to and detain in a place of safety such woman or girl until she can be brought before a magistrate; and the magistrate before whom such woman or girl is brought may cause her to be delivered up to her parents or guardians, or otherwise dealt with as circumstances may permit and require.

(2)A magistrate issuing such warrant may, by the same or any other warrant, cause any person accused of so unlawfully detaining such woman or girl to be apprehended and brought before a magistrate and proceedings to be taken for punishing such person according to law.

(3)A woman or girl shall be deemed to be unlawfully detained for immoral purposes if she is so detained for the purpose of being unlawfully and carnally known by any man, whether any particular man or generally; and—

(a)either is under the age of thirteen years; or

(b)if she is of or over the age of thirteen years and under the age of eighteen years, is so detained against her will or against the will of her father or mother or of any person having the lawful care or charge of her; or

(c)if she is of or over the age of eighteen years and is so detained against her will.

(4)Any person authorized by warrant under this section to search for any woman or girl so detained as aforesaid may enter (if need be by force) any house, building, or other place mentioned in the warrant and may remove such woman therefrom.[1 of 2011]

145. Male person living on earnings of prostitution or persistently soliciting

(1)Every male person who—

(a)knowingly lives wholly or in part on the earnings of prostitution; or

(b)in any public place persistently solicits or importunes for immoral purposes,

shall be guilty of a misdemeanor.

(2)If it is made to appear to a magistrate by information on oath that there is reason to suspect that any house or any part of a house is used by a woman or girl for purposes of prostitution, and that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, the magistrate may issue a warrant authorizing any police officer to enter and search the house and to arrest that person.

(3)Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person or generally, he shall unless he shall satisfy the court to the contrary be deemed to be knowingly living on the earnings of prostitution.[1 of 2011]

146. Woman aiding, etc., for gain prostitution of another woman

Every woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally, shall be guilty of a misdemeanor.

147. Brothels

Any person who keeps a house, room, set of rooms, or place of any kind whatsoever for purposes of prostitution shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

147A. Promoting prostitution, etc.

(1)Any person who—

(a)owns, controls, manages, supervises or otherwise keeps, alone or in association with another person, a house or business for prostitution;

(b)procures, encourages, induces, or otherwise purposely causes another person to become or remain a common prostitute;

(c)solicits another person to patronize a prostitute;

(d)transfers or transports any person into or out of or within Malaŵi with the purpose to engage that other person in prostitution; or

(e)rents or permits any place to be regularly used for prostitution or promotion of prostitution,

shall be guilty of an offence and shall be liable to imprisonment for fourteen years.

(2)For the purposes of this section—

(a)"prostitution" means any sexual activity with another person for money or something of economic value, or the offer or acceptance of an offer made to engage in sexual activity in exchange for money or something of economic value; and

(b)"sexual activity" includes sexual intercourse whether in the form of genital, oral-genital, anal-genital contact or otherwise, whether between persons of the same or opposite sex, masturbation, touching of the genitals, buttocks, breasts, sadistic or masochistic abuse and other deviant sexual relations.[1 of 2011]

148. Conspiracy to defile

Any person who conspires with another to induce any woman or girl, by means of any false pretence, false representation or other fraudulent means, to permit any man to have unlawful carnal knowledge of her shall be guilty of a felony, and shall be liable to imprisonment for three years.[1 of 2011]

149. Attempts to procure abortion

Any person who, with intent to procure a miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, shall be guilty of a felony and shall be liable to imprisonment for fourteen years.

150. The like by woman with child

Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

151. Supplying drugs or instruments to procure abortion

Any person who unlawfully supplies to or procures for any person any thing whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, shall be guilty of a felony and shall be liable to imprisonment for three years.

152. Knowledge of age of female immaterial

Except as otherwise expressly stated, it is immaterial in the case of any of the offences committed with respect to a woman or girl under a specified age, that the accused person did not know that the woman or girl was under that age, or believed that she was not under that age.

153. Unnatural offences

Any person who—

(a)has carnal knowledge of any person against the order of nature; or

(b)has carnal knowledge of an animal; or

(c)permits a male person to have carnal knowledge of him or her against the order of nature,

shall be guilty of a felony and shall be liable to imprisonment for fourteen years.[1 of 2011]

154. Attempt to commit unnatural offences

Any person who attempts to commit any of the offences specified in section 153 shall be guilty of a felony and shall be liable to imprisonment for seven years.[1 of 2011]

155. Indecent assault of boys under fourteen

Any person who unlawfully and indecently assaults a boy under the age of fourteen years shall be guilty of a felony and shall be liable to imprisonment for seven years.[1 of 2011]

155A. Indecent assault against idiots and imbeciles

Any person who indecently assaults a male person, knowing that person to be an idiot or imbecile, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

156. Indecent practices between males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years.[1 of 2011]

157. Incest by males

(1)Any male person who has carnal knowledge of a female person, who is to his knowledge his grand-daughter, daughter, sister, mother or grandmother, shall be guilty of a felony and shall be liable to imprisonment for five years:Provided that if it is alleged in the information or charge and proved that the female person is under the age of sixteen years, the offender shall be liable to imprisonment for life.

(2)Consent immaterialIt is immaterial that the carnal knowledge was had with the consent of the female person.

(3)AttemptIf any male person attempts to commit any such offence as aforesaid he shall be guilty of a misdemeanor.

(4)Order for guardianshipOn the conviction before any court of any male person of an offence under this section, or of an attempt to commit the same, against any female under the age of twenty-one years, it shall be in the power of the court to divest the offender of all authority over such female, and, if the offender is the guardian of such female, to remove the offender from such guardianship, and in any such case to appoint any person or persons to be the guardian or guardians of such female during her minority or any less period:Provided that the High Court may at any time vary or rescind the order by the appointment of any other person as such guardian, or in any other respect.[1 of 2011]

158. Incest by females

Any female person of or above the age of sixteen years who with consent permits her grandfather, father, brother, or son to have carnal knowledge of her (knowing him to be her grandfather, father, brother, son or grandson, as the case may be), shall be guilty of a felony and shall be liable to imprisonment for five years.[1 of 2011]

159. Test of relationship

In the two last preceding sections the expressions "brother" and "sister", respectively, include half-brother and half-sister, and the said sections shall apply whether the relationship between the person charged with an offence and the person with whom the offence is alleged to have been committed is or is not traced through lawful wedlock.

159A. Sexual intercourse with minors under one's care or protection

Any person who has sexual intercourse with a person under the age of twenty-one years who—

(a)is the first mentioned person’s stepchild, foster child, dependant or ward; or

(b)is, at the time of the intercourse, living with the first mentioned person as a member of that person’s family or is under that person’s care or protection,

shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

160. Sanction of director of public prosecutions

No prosecution for an offence under section 157, 158 or 159A shall be commenced without the sanction of the Director of Public Prosecutions.[1 of 2011]

Chapter XVA
Offences against morality relating to children

160A. Definitions

In this Chapter -"child" means a child under the age of sixteen years;"sexual activity" means sexual contact other than sexual intercourse (whether between persons of the same or opposite sex) in the form of genital, oral-genital, anal-genital contact or otherwise, masturbation, touching of genitals, buttocks or breasts, sadistic or masochistic abuse and other deviant sexual behaviour;"prohibited sexual act" includes sexual intercourse, anal intercourse, masturbation, bestiality, sadism, masochism, fellatio, cunnilingus, or nudity if the nudity is depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction;"material" includes—(a)an object;(b)a still visual image of any kind, whether a drawing, painting, photograph, or other representation on a surface of any kind, and whether printed or not;(c)a moving visual image of any kind, whether produced from a cinematographic film, video tape or other medium; or(d)a hologram;"offensive material" means material that—(a)describes, depicts, expresses, or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty or violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult;(b)depicts a person (whether engaged in sexual activity or otherwise) who is, or who is apparently, a child under the age of sixteen years in a manner that is likely to cause offence to a reasonable adult;(c)describes, depicts, expresses, or otherwise deals with sexual activity of any kind between a human being and an animal;(d)promotes, incites, or instructs in matters of crime or violence, and includes a publication, the publication or importation of which is prohibited under this Code or under any other written law;"public entertainment" means an entertainment to which the public or any section of the public is admitted or in connexion with which a charge, whether for admission or otherwise, is made.[1 of 2011]

160B. Sexual activity with a child

(1)Any person who engages or indulges in sexual activity with a child shall be guilty of an offence and shall be liable to imprisonment for fourteen years.

(2)If the offence under subsection (1) is committed in circumstances of aggravation, the offender shall be liable to imprisonment for twenty-one years.

(3)For the purposes of subsection (2), "circumstances of aggravation" means circumstances in which—

(a)at or immediately before or immediately after the commission of the offence—

(i)the accused is armed with any dangerous or offensive weapon or instrument or pretends to be so armed;

(ii)the accused is in company with another person or persons;

(iii)the accused by his acts or conduct wounds, maims, disfigures or endangers the life of the victim;

(iv)the accused does an act which is likely seriously and substantially to degrade or humiliate the victim; or

(v)the accused threatens to kill the victim;

(b)the accused is a step parent, foster parent, teacher, guardian or is a person who has the guardianship or charge of the child or is a person with whom the child is living as part of the accused’s family.[1 of 2011]

160C. Indecent practice in the presence of or with a child

Any person who, whether in public or private—

(a)procures a child to commit any act of gross indecency with him or with another person; or

(b)commits an act of gross indecency with a person of the same or opposite sex in the presence of a child,

shall be guilty of an offence and shall be liable to imprisonment for fourteen years.[1 of 2011]

160D. Showing, selling, exposing offensive materials to a child

Any person who, with intent to commit an offence, shows, sells, or exposes offensive material to a child, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

160E. Recording a child

Any person who—

(a)causes or permits a child to be engaged in a prohibited sexual act or simulation of such act if the person knows or has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner or may be part of an exhibition or performance;

(b)photographs or films a child in a prohibited sexual act or in the simulation of such an act or uses any device to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act;

(c)knowingly receives for the purpose of selling or knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, sends, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer any photograph film, video tape, computer programme, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such act;

(d)knowingly possesses or knowingly views any photograph, film, video tape, computer programme, video game or any other reproduction or reconstruction which so depicts a child,

shall be guilty of an offence and shall be liable to imprisonment for fourteen years.[1 of 2011]

160F. Procuring child to take part in public entertainment

(1)Any person who causes or procures any child, or being a parent or guardian of the child, allows the child to take part in any public entertainment—

(a)of an immoral nature;

(b)which is dangerous to life or prejudicial to the health, physical fitness and kind treatment of the child,

shall be guilty of an offence and shall be liable to a fine of K100,000 and to imprisonment for seven years.

(2)If the person convicted of an offence under subsection (1) is the holder of a licence issued under a law regulating public entertainment or under any other relevant law, the court may also order the cancellation of the licence or its suspension for such period as the court may think fit.[1 of 2011]

160G. Knowledge of age of child immaterial

It shall not be a defence to a charge for an offence under this Chapter that the accused did not know that the child in respect of whom the offence was committed was under the prescribed age of sixteen years, or believed that the child was not under that age.[1 of 2011]

Chapter XVI
Offences relating to marriage and domestic obligations

161. Fraudulent pretence of marriage

Any person who wilfully and by fraud causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be guilty of a felony and shall be liable to imprisonment for ten years.

162. Bigamy

Any person who, having a husband or wife living, goes through a ceremony of marriage which is void by reason of its taking place during the life of such husband or wife, shall be guilty of a felony and shall be liable to imprisonment for five years:Provided that this section shall not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time.

163. Marriage ceremony fraudulently gone through without lawful marriage

Any person who dishonestly or with fraudulent intention goes through the ceremony of marriage, knowing that he is not thereby lawfully married, shall be guilty of a felony, and shall be liable to imprisonment for five years.

164. Desertion of children

Any person who being the parent, guardian or other person having the lawful care or charge of a child under the age of sixteen years, and being able to maintain such child, wilfully and without lawful and reasonable cause deserts the child and leaves it without means of support, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

165. Neglecting to provide food, etc., for children

Any person who, being the parent or guardian or other person having the lawful care or charge of any child under the age of sixteen years and unable to provide for itself, refuses or neglects (being able to do so) to provide sufficient food, clothes, bedding and other necessaries for such child, so as thereby to injure the health of such child, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

166. Master not providing for servants or apprentices

Any person who, being legally liable either as master or mistress, to provide for any apprentice or servant necessary food, clothing, or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, or unlawfully or maliciously does or causes to be done any bodily harm to such apprentice or servant so that the life of such apprentice or servant is endangered or that his health has been or is likely to be permanently injured shall be guilty of a misdemeanor.[1 of 2011]

167. Child stealing

(1)Any person who, with intent to deprive any parent, guardian, or other person who has the lawful care or charge of a child under the age of sixteen years, of the possession of such child-

(a)forcibly or fraudulently takes or entices away, or detains the child; or

(b)receives or harbours the child, knowing it to have been so taken or enticed away or detained,

shall be guilty of a felony and shall be liable to imprisonment for seven years.

(2)It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father.[1 of 2011]

Chapter XVII
Nuisances and offences against health and convenience

168. Common nuisance

(1)Any person who does an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury, or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanor termed a common nuisance and shall be liable to imprisonment for one year.

(2)It is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public.[1 of 2011]

169. Gaming houses

(1)Any person being the owner or occupier, or having the use of, any house, room or place, who shall open, keep or use the same for the purpose of unlawful gaming being carried on therein, and any person who, being the owner or occupier of any house, room or place, shall knowingly and wilfully permit the same to be opened, kept or used by any other person for the purpose aforesaid, and any person having the care or management of or in any manner assisting in conducting the business of any house, room or place opened, kept or used for the purpose aforesaid, is said to keep a common gaming house.

(2)In this section "unlawful gaming" means any game the chances of which are not alike favourable to all the players, including the banker or other person or persons by whom the game is managed or against whom the other players stake, play or bet.

(3)Any person who keeps a common gaming house shall be guilty of a misdemeanor.

(4)Any person other than the persons mentioned in subsection (1) who is found in a common gaming house shall be deemed, unless the contrary is proved, to be there for the purpose of unlawful gaming, and shall be guilty of a misdemeanor and shall be liable to a fine of K1,000 for the first offence, and for each subsequent offence to a fine of K2,000 and to imprisonment for three months.[1 of 2011]

170. Betting houses

Any house, room or place which is used for any of the purposes following, that is to say—

(a)for the purpose of bets being made therein between persons resorting to the place and—

(i)the owner, occupier, or keeper of the place, or any person using the place; or

(ii)any person procured or employed by or acting for or on behalf of any such owner, occupier or keeper, or person using the place; or

(iii)any person having the care or management, or in any manner conducting the business, of the place; or

(b)for the purpose of any money or other property being paid or received therein by or on behalf of any such owner, occupier or keeper, or person using the place, as, for the consideration—

(i)for an assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or other property on any event or contingency of or relating to any horse race, or other race, fight, game, sport, or exercise; or

(ii)for securing the paying or giving by some other person of any money or other property on any such event or contingency,

is called a common betting house.Any person who, being the owner or occupier of any house, room, or place, knowingly and wilfully permits it to be opened, kept or used, as a common betting house by another person, or who has the use or management, or assists in conducting the business, of a common betting house, shall be guilty of a misdemeanor and shall be liable to imprisonment for one year:TotalizerProvided always that nothing herein contained shall make illegal the use of a totalizator by a race club, gymkhana club or sports club recognized by the Government at any public meeting, with the approval in each case of the Inspector General of Police. In this proviso, "totalizator" means and includes the instrument, machine or contrivance commonly known as the totalizator, and any other instrument, machine or contrivance of a like nature, or any scheme for enabling any number of persons to make bets with one another on the like principles.

171. Authorized lotteries

For the purposes of sections 173 and 180, "authorized lottery" means—

(a)any lottery—

(i)organized to raise funds within Malaŵi for social service, public welfare, relief of distress, patriotic purposes, or to provide sporting or recreational facilities; and

(ii)of which at least one-quarter of the gross proceeds shall be devoted to the object for which the lottery is conducted; and

(iii)authorized by the Inspector General of Police or by a police officer to whom power has been delegated by the Inspector General of Police to give such authority;

(b)any lottery deemed to be an authorized lottery under section 172;

(c)any lottery declared by the Minister to be an authorized lottery:

Provided that a lottery declared to be an authorized lottery under the provisions of this paragraph shall be conducted in accordance with and subject to such conditions as the Minister may impose.

172. Small lotteries incidental to certain entertainments to be authorized lotteries

(1)A lottery promoted as an incident of an entertainment to which this section applies shall be deemed to be an authorized lottery, but the conditions specified in subsection (2) shall be observed in the promotion and conduct of the lottery, and if any of those conditions is broken the lottery shall cease to be an authorized lottery.

(2)The conditions referred to in subsection (1) are that—

(a)the whole proceeds of the entertainment (including the proceeds of the lottery) after deducting—

(i)the expenses of the entertainment excluding the expenses incurred in connexion with the lottery; and

(ii)the expenses incurred in printing tickets in the lottery; and

(iii)such sum (if any) not exceeding K2,000 as the promoters of the lottery think fit to appropriate on account of any expense incurred by them in purchasing prizes in the lottery, shall be devoted to purposes other than private gain;

(b)tickets or chances in the lottery shall not be sold or issued, nor shall the result of the lottery be declared, except in the premises on which the entertainment takes place and during the progress of the entertainment; and

(c)the facilities provided for participating in lotteries shall not be the only, or the only substantial, inducement to persons to attend the entertainment.

(3)The entertainments to which this section applies are bazaars, sales of work, fetes and other entertainments of similar character, whether limited to one day or extending over two or more days.

173. Lotteries

(1)Any person who opens, keeps or uses any place for carrying on a lottery other than an authorized lottery shall be guilty of a misdemeanor and shall be liable to imprisonment for six months.[1 of 2011]

(2)Any person who prints or publishes, or causes to be printed or published, any advertisement or other notice of or relating to a lottery, not being an authorized lottery, or of or relating to the sale of any ticket or chance or of any share in any ticket or chance in any lottery other than an authorized lottery shall be liable to a fine of K10,000.[1 of 2011]

(3)In this section "lottery" includes any scheme or device for the sale, gift, disposal, or distribution of any property, depending upon or to be determined by lot or chance, whether by the throwing or casting of dice, or by the drawing of tickets, cards, lots, numbers, or figures, or by means of a wheel or trained animal, or otherwise howsoever.

(4)When any person is convicted of an offence under this section, the court may, in addition to or in lieu of, any penalty which may be imposed, order the forfeiture of any instrument or thing used in connexion with the lottery concerning which the conviction has taken place.

174. Exemption of private lotteries

(1)In this section, the expression "private lottery" means a lottery which is promoted for, and in which the sale of tickets or chances by the promoters is confined to, either—

(a)members of one society established and conducted for purposes not connected with gaming, wagering or lotteries; or

(b)persons all of whom work on the same premises; or

(c)persons all of whom reside on the same premises,

and which is promoted by persons each of whom is a person to whom, under the foregoing provisions, tickets or chances may be sold by the promoters and, in the case of a lottery promoted for the members of a society, is a person authorized in writing by the governing body of the society to promote the lottery.For the purposes of this section, the expression "society" includes a club, institution, organization or other association of persons by whatever name called, and each local or affiliated branch or section of a society shall be regarded as a separate and distinct society.[1 of 2011]

(2)A private lottery shall be deemed to be an authorized lottery, but the following conditions shall be observed in connexion with the promotion and conduct of the lottery, that is to say—

(a)the whole proceeds, after deducting only expenses incurred for printing and stationery, shall be devoted to the provision of prizes for purchasers of tickets or chances or for other persons being themselves lawful participants in the lottery to whom any purchaser or purchasers may have sold all of or any share in a ticket or chance or tickets or chances, or, in the case of a lottery promoted for the members of a society, shall be devoted either to the provision of prizes as aforesaid or to purposes which are purposes of the society or, as to part, to the provision of prizes as aforesaid and, as to the remainder, to such purposes as aforesaid;

(b)there shall not be exhibited, published or distributed any written notice or advertisement of the lottery other than—

(i)a notice thereof exhibited on the premises of the society for whose members it is promoted or, as the case may be, on the premises on which the persons for whom it is promoted work or reside; and

(ii)such announcement or advertisement thereof as is contained in the tickets, if any;

(c)the price of every ticket or chance shall be the same, and the price of every ticket shall be stated on the ticket;

(d)every ticket shall bear upon the face of it the names and addresses of each of the promoters and a statement of the persons to whom the sale of tickets or chances by the promoters is restricted, and a statement that no prize or part thereof won in the lottery shall be paid or delivered by the promoters to any person other than the person to whom the winning ticket or chance was sold by them, or to any other person being himself a lawful participant in the lottery to whom the buyer of a ticket or chance shall have sold all of or a share in such ticket or chance, and no prize shall be paid or delivered except in accordance with that statement;

(e)no ticket or chance shall be issued or allotted by the promoters except by way of sale and upon receipt of the full price thereof, and no money or valuable thing so received by a promoter shall in any circumstances be returned; and

(f)no tickets in the lottery shall be sent through the post.

(3)If any of the conditions specified in subsection (2) is broken, each of the promoters of the lottery, and where the person by whom the condition is broken is not one of the promoters, that person also, shall be liable to a fine of K2,000 and to imprisonment for three months:[1 of 2011]Provided that it shall be a defence for a person charged only by reason of his being a promoter of the lottery that the offence was committed without his knowledge.

(4)The Inspector General of Police, or any other police officer appointed by him for the purpose, may at any time inspect the accounts of any private lottery, and the promoters of such lottery shall give to the Inspector General of Police or to such officer access to all vouchers or other documents connected therewith and such other information as he may require.

175. Keeper of premises defined

Any person who appears, acts, or behaves as master or mistress, or as the person having the care or management of any such house, room, set of rooms, or place as is mentioned in section 169, 170 or 173 is to be taken to be the keeper thereof, whether he is or is not the real keeper.

176. Offences to organize or manage or conduct pools

Any person who takes part in the organization, management or conduct of a pool shall be guilty of a misdemeanor and shall be liable to a fine of K10,000 and to imprisonment for six months.For the purposes of this section "pool" means any invitation to the public to foretell the result of any game, race or event.[1 of 2011]

177. Chain letters

(1)Any person who sends or causes to be sent any chain letter or who sends or receives any money or money’s worth in connexion with any chain letter is guilty of a misdemeanor and is liable to a fine of K5,000 and to imprisonment for six months.

(2)For the purposes of this section "chain letter" means a document addressed by one person to another person suggesting to, requesting or inviting the person to whom it is addressed—

(a)that he should send or request to be sent a document having the same purport to one or more other persons; or

(b)that he should communicate, verbally or otherwise, the contents or import of the first-mentioned document to one or more other persons in order to solicit, induce, canvass or cause those persons, or any of them, to act in accordance with the suggestion, request or invitation contained in the first-mentioned document; and in either of the above cases;

(c)that he should remit to a person or to an address specified in the first-mentioned document money or money’s worth.[1 of 2011]

178. Opening of postal article suspected of containing chain letter

(1)If the Postmaster General or any other officer authorized by him in that behalf has reasonable grounds to believe that any postal article is, or contains, a chain letter sent in contravention of any of the provisions of section 177, he may apply to a court of a Resident Magistrate or First Grade Magistrate for a warrant to detain and open the postal article.

(2)Every application under this section shall be made in writing and on oath, setting out the facts relied upon.

(3)On an application made in accordance with this section, the court may grant the warrant if it is satisfied that there, are reasonable grounds for believing that the postal article is, or contains, a chain letter.

(4)The court may order that any bank note, currency note, postal order, money order, coin, money or money’s worth found in any such postal article so opened under subsection (1) shall be forfeited.

(5)In this section, the expression "postal article" includes any letter, printed paper, newspaper, parcel or other article whatsoever in course of transmission by post, and a telegram when conveyed by post.[1 of 2011]

179. Obscene matters or things

(1)Any person who—

(a)makes, produces or has in his possession any one or more obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, photographic negatives or prints, cinematograph films, gramophone records or other contrivances for the reproduction of sound or any other obscene objects or any other objects tending to corrupt morals; or[11 of 1973][1 of 2011]

(b)imports, conveys or exports, or causes to be imported, conveyed or exported, any such matters or things, or in any manner whatsoever puts any of them in circulation; or

(c)carries on or takes part in any business, whether public or private, concerned with any such matters or things in any manner whatsoever, or distributes any of them, or exhibits any of them publicly, or makes a business of lending any of them; or

(d)advertises or makes known by any means whatsoever, with a view to assisting the circulation of, or traffic in, any such matters or things, that a person is engaged in any of the acts referred to in this section, or advertises or makes known how, or from whom, any such matters or things can be procured either directly or indirectly; or

(e)publicly exhibits any indecent show or performance or any show or performance tending to corrupt morals,

is guilty of an offence and shall be liable to a fine of K500,000 and to imprisonment for a term of two years.[1 of 2011]

(2)If, in respect of any of the offences specified in paragraphs (a), (b) , (c) or (d) of subsection (1), any constituent element thereof is committed in Malaŵi such commission shall be sufficient to render the person accused of such offence triable therefor in Malaŵi.

(3)A court, on convicting any person of an offence against this section, may order to be confiscated or destroyed any matter or thing made, possessed or used for the purpose of such offence.

(4)A court may, on the application of a public prosecutor order the destruction of any obscene matter or thing to which this section relates, whether any person may or may not have been convicted under the provisions of this section in respect of such obscene matter or thing. In this subsection, the term "public prosecutor" bears the meaning ascribed to such term by section 2 of the Criminal Procedure and Evidence Code [Cap. 8:01].

(5)Where a person is convicted of an offence under this section and the court convicting him is satisfied that the offence arose out of, or was committed in the course, or furtherance, of any trade or business carried on by him and in respect of which he holds a licence issued under any written law, such court shall order the cancellation of such licence.[1 of 2011]

(6)No prosecution for an offence under this section shall be instituted without the written consent of the Director of Public Prosecutions.

180. Idle and disorderly persons

The following persons—

(a)every common prostitute behaving in a disorderly or indecent manner in any public place;[1 of 2011]

(b)every person wandering or placing himself in any public place to beg or gather alms, or causing or procuring or encouraging any child or children so to do;

(c)every person playing at any game of chance not being an authorized lottery or a private lottery for the purposes of section 174, for money or money’s worth in any public place;

(d)every person who without lawful excuse publicly does any indecent act;

(e)every person who in any public place solicits for immoral purposes; and

(f)every person wandering about and endeavouring by the exposure of wounds or deformation to obtain or gather alms,

shall be deemed idle and disorderly persons, and shall be liable for the first offence to a fine of K1,000 and to imprisonment for three months and for a subsequent offence to a fine of K3,000 and to imprisonment for six months.[1 of 2011]

181. Conduct likely to cause a breach of the peace

Every person who in any public place conducts himself in a manner likely to cause a breach of the peace shall be guilty of an offence and shall be liable to a fine of K3,000 and to imprisonment for three months.[1 of 2011]

182. Use of insulting language

Every person who uses insulting, abusive, indecent or threatening language or otherwise conducts himself in a manner likely to give such provocation to any person as to cause such person to break the peace or to commit any offence against the person shall be liable to a fine of K100 and to imprisonment for six months.[1 of 2011]

183. Nuisances by drunken persons, etc.

(1)Every person found drunk and incapable in any public place, or on any premises licensed under the Liquor Act [Cap. 50:07], shall be guilty of an offence and shall be liable to a fine of K1,000, and on a second or subsequent conviction shall be liable to a fine of K5,000.

(2)Every person who, in any public place or any premises licensed under the Liquor Act [Cap. 50:07], while drunk conducts himself in a riotous or disorderly behaviour shall be guilty of an offence and shall be liable to a fine of K3,000.

(3)Every person who, in any public place or on any premises licensed under the Liquor Act [Cap 50:07], while drunk is in possession of any loaded firearm shall be liable to a fine of K10,000 and to imprisonment for two years.

(4)Any person who commits an offence against this section may be arrested without a warrant.[1 of 2011]

184. Rogues and vagabonds

(1)The following persons—

(a)every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence;[1 of 2011]

(b)every suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of himself;

(c)every person found in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose;

(d)every person who, without the prior consent in writing in that behalf of the District Commissioner, collects or makes any appeal for subscriptions of money in any public place in such District Commissioner’s District for any purpose;

(e)every person who has collected money by subscription in any place in Malaŵi, who fails to produce to a District Commissioner or to publish in a newspaper named by a District Commissioner, correct accounts of any money received by such subscription and of the disposal thereof, when called upon so to do by such District Commissioner,

shall be deemed to be a rogue and vagabond, and shall be guilty of a misdemeanor and shall be liable for the first offence to imprisonment for six months, and for every subsequent offence to imprisonment for eighteen months:Provided that paragraphs (d) and (e) shall not apply to—

(i)any person or to the duly authorized representative of any organization who has received the written consent of the Inspector General of Police to collect, or make any appeal for, subscriptions of money for religious or charitable purposes.[1 of 2011]

(ii)any person authorized to collect, or make any appeal for subscriptions of money, under the provisions of any by-law of a local authority which is in force in Malaŵi:Provided further that for the purposes of paragraph (d) the definition of "public place" in section 4 shall not be deemed to include any recognized place of religious worship.

(2)In granting his consent to any person to collect money or to make an appeal for subscriptions of money under subsection (1) (d), a District Commissioner may impose such conditions as he may think fit. Any person who, having been granted such consent fails to comply with any such condition, shall be deemed to have committed an offence against subsection (1) and shall be liable to the penalties provided by such subsection.

185. Power to order removal of undesirable persons from certain municiaplities, townships and other areas

(1)This section shall extend to such Municipalities,Townships and other areas as the Minister may, by order published in the Gazette, direct, and shall apply to—

(a)persons of any age which, according to law or custom, should render them subject to control, where the person whose duty it is to exercise control is resident outside a Municipality, Township or other area to which this section applies; or

(b)persons having no settled home within such a township or such an area whose District of origin or last place of ordinary residence is outside the Municipality, Township or other area.

(2)For the purposes of subsection (1) (b) a person shall be deemed to have a settled home within a Municipality, Township or other area if he satisfies the magistrate—

(a)that one or other of his parents is ordinarily resident in such Municipality, Township or other area; or

(b)that he is, and has been for a period or periods amounting in the aggregate to not less than eighteen months during the two years immediately preceding the month then current, ordinarily resident in such Municipality, Township or other area.

(3)Where a magistrate has reasonable cause to believe that a person belongs to one of the categories specified in subsection (1) and that the presence of such person within any Municipality, Township or other area within his jurisdiction to which this section extends is, by reason of any of the matters mentioned in subsection (3), undesirable in the public interest, he may make an order (in this section referred to as a removal order) requiring such person—

(a)to leave the Municipality, Township or other area not later than such date as may be specified in the Order;

(b)thereafter to remain outside the Municipality, Township or other area either during a period to be specified in the order or until further order.

(4)A removal order may be made on any of the following grounds—

(a)that a person has been convicted of an offence under section 184;

(b)that he has no regular employment or other reputable means of livelihood and cannot give a good account of himself;

(c)that he has been convicted of an offence against the person or in relation to property.

(5)Before a removal order is made with respect to any person, he shall be informed of the reasons why it is proposed to make such order and shall be given an opportunity to show cause why such order should not be made.[1 of 2011]

186. Appeal against removal order

(1)A person with respect to whom a removal order under section 185 has been made may appeal against any such order to the High Court, whose decision shall be final.[1 of 2011]

(2)The High Court may, on receiving notice of appeal within the prescribed time, by order, suspend the operation of the removal order on such terms (including detention in custody or the provision of sureties or the entering into recognizances or reporting to the police) as may appear expedient pending the determination of the appeal:Provided that any such suspension shall cease to have effect if no appeal against such removal order is lodged in the manner and within the time prescribed.

(3)The High Court at the hearing of the appeal may receive evidence and may confirm or, on cause shown, cancel or vary the removal order.

(4)The Chief Justice may make Rules prescribing the manner in which and the time within which notice of appeal may be given and an appeal lodged, and generally the procedure to be followed in any appeal to the High Court under this section.[1 of 2011]

187. Detention in custody pending consideration of making of removal order

(1)Any person with respect to whom it is proposed to make a removal order under section 185 may be arrested by any police officer without a warrant and may be detained in custody for a period not exceeding fifteen days for the purpose of enabling the magistrate to make such inquiries as may be necessary.

(2)During any period of detention under subsection (1) such person shall be treated as a person awaiting trial and not as a convicted prisoner.[1 of 2011]

188. Subsistence allowance where removal order made

Every person with respect to whom a removal order is made shall be provided with such allowance in cash or in kind as the magistrate thinks sufficient to enable him to reach his district of origin or his last place of ordinary residence.

189. Penalty for failing to comply with removal order, etc.

(1)Any person with respect to whom a removal order has been made under section 185 and who fails to comply with any of the terms of the order shall be guilty of an offence:Provided that the magistrate may in writing suspend the operation of a removal order for such period and on such terms as he thinks fit.[1 of 2011]

(2)Any person who is guilty of an offence against this section shall be liable to a fine of K1,000 and to imprisonment for three months.[1 of 2011]

(3)A second or subsequent removal order may be made with respect to any person who is convicted of an offence against this section.

(4)Any police officer may arrest without a warrant any person whom he has reason to believe is guilty of an offence against this section.

(5)In any prosecution for an offence against this section, any document purporting to be a removal order made under section 185 may be admitted in evidence without proof of its authenticity.

(6)A magistrate who has made a removal order shall not, by reason of that fact, be precluded from inquiring into and trying any offence alleged to have been committed against this section by a person with respect to whom such removal order was made.

190. Review of removal orders

In every case where a removal order has been made under section 185, the person with respect to whom such order has been made may apply to a magistrate at the end of a period of six months from the date of the making of the order, and thereafter at the end of every ensuing period of six months, for a review of such order and the magistrate, after considering the matter, may, if he thinks fit, vary, suspend or cancel the order.

191. Wearing uniform without authority prohibited

(1)Any person who, not being a person serving in any constabulary or police service in Malaŵi, wears, without the permission of the Minister or without other lawful authority, the uniform of any of those services or any dress having the appearance or bearing any of the distinctive marks of such uniform shall be guilty of a misdemeanor and shall be liable to a fine of K5,000 or to imprisonment for three months:Provided that nothing in this section shall prevent any person from wearing any uniform or dress in the course of a stage play performed in any place in which stage plays may lawfully be publicly performed or in the course of a music-hall or circus performance.[1 of 2011]

(2)Bringing contempt on uniformAny person who unlawfully wears the uniform of any of the forces aforesaid, or any dress having the appearance or bearing any of the distinctive marks of any such uniform, in such a manner or in such circumstances as to be likely to bring contempt on that uniform, or employs any other person so to wear such uniform or dress, is guilty of a misdemeanor, and shall be liable to a fine of K5,000 or to imprisonment for nine months.[1 of 2011]

(3)Importation and sale of uniform, etc., without authority prohibitedAny person who, not being in the service of the Malaŵi Government or having previously received the written permission of the Minister so to do, imports or sells or has in his possession for sale any such uniform or dress as is mentioned in this section, or the buttons or badges appropriate thereto, is guilty of a misdemeanor, and shall be liable to a fine of K10,000 or to imprisonment for twelve months:Provided that nothing in this subsection shall be deemed to prohibit the importation of any such uniform or dress by any person who, having served in any constabulary or police service as aforesaid, is lawfully in possession thereof.[1 of 2011]

(4)Forfeiture of uniform, etc., on convictionWhen any person shall have been convicted of any offence under this section, the uniform, dress, button, badge or other thing in respect of which the offence has been committed shall be forfeited unless the Minister shall otherwise order.

192. Negligent act likely to spreaed disease dangerous to life

Any person who unlawfully, negligently or recklessly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be guilty of an offence and shall be liable to imprisonment for fourteen years.[1 of 2011]

193. Adulteration of food or drink intended for sale

Any person who adulterates any article of food, or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

193A. Importation of adulterated food or drinks

Any person who imports any adulterated article of food or drink knowing it to be adulterated and intending to sell such article as food or drink or knowing that it is likely that such article will be sold as food or drink shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

194. Sale of noxious food or drink

Any person who sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe, that the same is noxious as food or drink, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

195. Adulteration of drugs

Any person who adulterates any drug or medical preparation in such a manner as to lessen the efficacy or change the operation of such drug or medical preparation, or to make it noxious, intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medicinal purpose, as if it had not undergone such adulteration, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

195A. Importation of adulterated drugs

Any person who imports any adulterated drug or medical preparation knowing it to be adulterated and intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medicinal purposes as if it had not undergone such adulteration shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

196. Sale of adulterated drugs

Any person who, knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its efficacy, to change its operation or to render it noxious, sells the same, or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

197. Fouling water

Any person who voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be guilty of a misdemeanor.

198. Fouling air

Any person who voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be guilty of a misdemeanor.

199. Offensive trades

Any person who, for the purposes of trade or otherwise, makes loud noises or offensive or unwholesome smells in such places and circumstances as to annoy any considerable number of persons in the exercise of their common rights, commits and shall be liable to be punished as for a common nuisance.

Chapter XVIII
Defamation

200. Definition of libel

Any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, shall be guilty of the misdemeanor termed "libel".

201. Definition of defamatory matter

Defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. It is immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead:Provided that no prosecution for the publication of defamatory matter concerning a dead person shall be instituted without the consent of the Director of Public Prosecutions.

202. Definition of publication

(1)A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed to be so dealt with, either by exhibition, reading, recitation, description, delivery, or otherwise, as that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.

(2)It is not necessary for libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means.

203. Definition of unlawful publication

Any publication of defamatory matter concerning a person is unlawful within the meaning of this Chapter.[1 of 2011]

204. Cases in which publication of defamatory matter is absolutely privileged

(1)The publication of defamatory matter is absolutely privileged, and no person shall under any circumstances be liable to punishment under this Code in respect thereof, in any of the following cases, namely—

(a)if the matter is published by the President, or by the Cabinet or the National Assembly, in any official document or proceeding; or

(b)if the matter is published in the Cabinet or the National Assembly by any member of such bodies; or

(c)if the matter is published concerning a person subject to military or naval discipline for the time being, and relates to his conduct as a person subject to such discipline, and is published by some person having authority over him in respect of such conduct, and to some person having authority over him in respect of such conduct; or

(d)if the matter is published in the course of any judicial proceedings by a person taking part therein as a judge or magistrate or commissioner or legal practitioner or juror or assessor or witness or party thereto; or

(e)if the matter published is in fact a fair report of anything said, done, or published in the Cabinet or National Assembly; or

(f)if the person publishing the matter is legally bound to publish it.

(2)Where a publication is absolutely privileged, it is immaterial for the purposes of this Chapter whether the matter be true or false, and whether it be or be not known or believed to be false, and whether it be or be not published in good faith:Provided that nothing in this section shall exempt a person from any liability to punishment under any other Chapter of this Code or under any other Act in force within the Republic.[1 of 2011]

205. Cases in which publication of defamatory matter is conditionally prvileged

A publication of defamatory matter is privileged, on condition that it was published in good faith, if the relation between the parties by and to whom the publication is made is such that the person publishing the matter is under some legal, moral or social duty to publish it to the person to whom the publication is made or has a legitimate personal interest in so publishing it, provided that the publication does not exceed either in extent or matter what is reasonably sufficient for the occasion, and in any of the following cases, namely—

(a)if the matter published is in fact a fair report of anything said, done, or shown in a civil or criminal inquiry or proceeding before any court:Provided that if the court prohibits the publication of anything said or shown before it, on the ground that it is seditious, immoral, or blasphemous, the publication thereof shall not be privileged; or

(b)if the matter published is a copy or reproduction, or in fact a fair abstract, of any matter which has been previously published, and the previous publication of which was or would have been privileged under the last preceding section; or

(c)if the matter is an expression of opinion in good faith as to the conduct of a person in a judicial, official, or other public capacity or as to his personal character so far as it appears in such conduct; or

(d)if the matter is an expression of opinion in good faith as to the conduct of a person in relation to any public question or matter, or as to his personal character so far as it appears in such conduct; or

(e)if the matter is an expression of opinion in good faith as to the conduct of any person as disclosed by evidence given in a public legal proceeding, whether civil or criminal, or as to the conduct of any person as a party, witness, or otherwise in any such proceeding, or as to the character of any person so far as it appears in any such conduct as in this paragraph mentioned; or

(f)if the matter is an expression of opinion in good faith as to the merits of any book, writing, painting, speech, or other work, performance, or act published, or publicly done or made, or submitted by a person to the judgment of the public, or as to the character of the person so far as it appears therein; or

(g)if the matter is a censure passed by a person in good faith on the conduct of another person in any matter in respect of which he has authority, by contract or otherwise, over the other person, or on the character of the other person, so far as it appears in such conduct; or

(h)if the matter is a complaint or accusation made by a person in good faith against another person in respect of his conduct in any matter, or in respect of his character so far as it appears in such conduct, to any person having authority, by contract or otherwise, over that other person in respect of such conduct or matter, or having authority by law to inquire into or receive complaints respecting such conduct or matter; or

(i)if the matter is published in good faith for the protection of the rights or interests of the person who publishes it, or of the person to whom it is published, or of some person in whom the person to whom it is published is interested.

206. Explanation as to good faith

A publication of defamatory matter shall not be deemed to have been made in good faith by a person, within the meaning of the last preceding section if it is made to appear either—

(a)that the matter was untrue, and that he did not believe it to be true; or

(b)that the matter was untrue, and that he published it without having taken reasonable care to ascertain whether it was true or false; or

(c)that in publishing the matter, he acted with intent to injure the person defamed in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest of the public or for the protection of the private right or interest in respect of which he claims to be privileged.

207. Presumption as to good faith

If it is proved, on behalf of the accused person, that the defamatory matter was published under such circumstances that the publication would have been justified if made in good faith, the publication shall be presumed to have been made in good faith until the contrary is made to appear, either from the libel itself, or from the evidence given on behalf of the accused person, or from evidence given on the part of the prosecution.

Division IV — Offences against the person

Chapter XIX
Murder and manslaughter

208. Manslaughter

Any person who by an unlawful act or omission causes the death of another person shall be guilty of the felony termed "manslaughter". An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

209. Murder

Any person who of malice aforethought causes the death of another person by an unlawful act or omission shall be guilty of murder.

210. Punishment of murder

Any person convicted of murder shall be liable to be punished with death or with imprisonment for life.[1 of 2011]

211. Punishment of manslaughter

Any person who commits the felony of manslaughter shall be liable to imprisonment for life.

212. Malice aforethought

Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—

(a)an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;

(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

(c)an intent to commit a felony;

(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

213. Killing on provocation

(1)When a person who unlawfully kills another under circumstances which, but for this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.

(2)This section shall not apply unless the court is satisfied that the act which causes death bears a reasonable relationship to the provocation.

214. Provocation defined

(1)The term "provocation" means, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done or offered to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master and servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.

(2)When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

(3)A lawful act is not provocation to any person for an assault.

(4)An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.

(5)An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

(6)For the purposes of this section the expression "an ordinary person" shall mean an ordinary person of the community to which the accused belongs.[1 of 2011]

214A. Diminished responsibility

(1)Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind, whether arising from a condition of arrested or retarded development of mind or other inherent cause induced by disease or injury, as has substantially impaired his mental responsibility for his acts in doing or being a party to the killing.

(2)On a charge of murder it shall be for the defence to prove that the person charged is, by virtue of this section, not liable to be convicted of murder.

(3)A person who, but for this section would be liable, whether as a principal or otherwise, to be convicted of murder shall be liable instead to be convicted of manslaughter.

(4)The fact that one party to the killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to the killing.[1 of 2011]

215. Causing death defined

A person is deemed to have caused the death of another person although his act is not the immediate or not the sole cause of death in any of the following cases—

(a)if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill;[23 of 1970]

(b)if he inflicts a bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living;[23 of 1970]

(c)if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused;

(d)if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death;

(e)if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.

216. When child deemed to be a person capable of being killed

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.

217. ***

[repealed by 23 of 1970].

Chapter XIXA
Genocide

217A. Genocide

(1)A person commits the offence of genocide if he does any of the following acts with intent to destroy, in whole or in part, a national, ethnic, tribal, racial or religious group—

(a)killing members of the group; or

(b)causing serious bodily or mental harm to members of the group; or

(c)deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; or

(d)imposing measures intended to prevent births within the group; or

(e)forcibly transferring children of the group to another group.

(2)A person guilty of the offence of genocide shall on conviction—

(a)if the offence consists of the killing of any person, be liable to be punished with death or imprisonment for life;

(b)in any other case, be liable to imprisonment for twenty-one years.

(3)A person may be tried and punished for the offence of genocide whether committed within or outside the Republic.[1 of 2011]

Chapter XX
Duties relating to the preservation of life and health

218. Responsibility of person who has charge of another

It is the duty of every person having charge of another who is unable by reason of age, sickness, unsoundness of mind, detention or any other cause to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.

219. Duty of parent, etc.

It is the duty of every person who, as parent, guardian or other person has charge of a child under the age of sixteen years, being a member of his household, to provide the necessaries of life for such child; and he is held to have caused any consequences which result to the life or health of the child by reason of any omission to perform that duty, whether the child is helpless or not.[1 of 2011]

220. Duty of masters

It is the duty of every person who as master or mistress has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of sixteen years to provide the same; and he or she is held to have caused any consequences which result to the life or health of the servant or apprentice by reason of any omission to perform that duty.

221. Duty of persons doing dangerous acts

It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.

222. Duty of persons in charge of dangerous things

It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

Chapter XXI
Offences connected with murder and suicide

223. Attempt to murder

Any person who—

(a)attempts unlawfully to cause the death of another; or

(b)with intent unlawfully to cause the death of another does any act, or omits to do any act, which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life,

shall be guilty of a felony, and is liable to imprisonment for life.

224. ***

[repealed by 1 of 2011].

225. Accessory after the fact to murder

Any person who becomes an accessory after the fact to murder shall be guilty of a felony, and is liable to imprisonment for life.

226. Written threats to murder

Any person who, knowing the contents thereof, directly or indirectly causes any person to receive any writing threatening to kill any person is guilty of a felony, and is liable to imprisonment for seven years.

227. Conspiracy to murder

Any person who conspires with any other person to kill any person, whether such person is in the Republic or elsewhere, shall be guilty of a felony and shall be liable to imprisonment for fourteen years.

228. Aiding suicide

Any person who—

(a)procures another to kill himself; or

(b)counsels another to kill himself and thereby induces him to do so; or

(c)aids another in killing himself,

is guilty of a felony, and shall be liable to imprisonment for life.

229. Attempting suicide

Any person who attempts to kill himself shall be guilty of a misdemeanor.

230. Offence of infanticide

Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.

231. Killing unborn child

Any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, shall be guilty of a felony and shall be liable to imprisonment for life.

232. Concealing birth of child

If any woman shall be delivered of a child, every person who by any secret disposition endeavours to conceal the birth of the child shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

232A. Abandonment of child at birth

Any woman who, being delivered of a child, abandons the child at birth, whether such child dies or lives, shall be guilty of an offence and shall be liable to imprisonment for two years.[1 of 2011]

Chapter XXII
Offences endangering life or health

233. Disabling in order to commit felony or misdemeanour

Any person who, by any means calculated to choke, suffocate or strangle, and with intent to commit or to facilitate the commission of a felony or misdemeanor, or to facilitate the flight of an offender after (the commission or attempted commission of a felony or misdemeanor, renders or attempts to render any person incapable of resistance, shall be guilty of a felony and shall be liable to imprisonment for life.[1 of 2011]

234. Stupefying in order to commit felony or misdemeanor

Any person who, with intent to commit or to facilitate the commission of a felony or misdemeanor, or to facilitate the flight of an offender after the commission or attempted commission of a felony or misdemeanor, administers or attempts to administer any stupefying or overpowering drug or thing to any person, shall be guilty of a felony and shall be liable to imprisonment for life.

235. Acts intended to cause grievous harm or prevent arrest

Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person—

(a)unlawfully wounds or does any grievous harm to any person by any means whatever; or

(b)unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife, or other dangerous or offensive weapon; or

(c)unlawfully causes any explosive substance to explode; or

(d)unlawfully sends or delivers any explosive substance or other dangerous or noxious thing to any person; or

(e)unlawfully causes any such substance or thing to be taken or received by any person; or

(f)unlawfully puts any corrosive fluid or any destructive or explosive substance in any place; or

(g)unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person,

shall be guilty of a felony, and shall be liable to imprisonment for life.[1 of 2011]

236. Preventing escape from wreck

Any person who unlawfully—

(a)prevents or obstructs any person who is on board of, or is escaping from, a vessel which is in distress or wrecked, in his endeavours to save his life; or

(b)obstructs any person in his endeavours to save the life of any person so situated,

shall be guilty of a felony and shall be liable to imprisonment for life.

237. Intentionally endangering safety of persons travelling by railway or road

Any person who, with intent to injure or to endanger the safety of any person travelling by any railway or road, whether a particular person or not—

(a)places anything on the railway or road; or

(b)deals with the railway or road, or with anything whatever upon or near the railway or road, in such a manner as to affect or endanger the free and safe use of the railway or road or the safety of any such person; or

(c)shoots or throws anything at, into, or upon or causes anything to come into contact with any person or thing on the railway or road; or

(d)shows any light or signal, or in any way deals with any existing light or signal, upon or near the railway or road; or

(e)by any omission to do any act which it is his duty to do causes the safety of any such person to be endangered,

shall be guilty of a felony, and shall be liable to imprisonment for life.[1 of 2011]

238. Grievous harm

Any person who unlawfully does grievous harm to another shall be guilty of a felony and shall be liable to imprisonment for fourteen years.

239. Attempting to injure by explosive substances

Any person who unlawfully, and with intent to do any harm to another, puts any explosive substance in any place whatever, shall be guilty of a felony and shall be liable to imprisonment for fourteen years.

240. Maliciously administering poison with intent to harm

Any person who unlawfully, and with intent to injure or annoy another, causes any poison or noxious thing to be administered to, or taken by, any person, and thereby endangers his life, or does him some grievous harm, shall be guilty of a felony, and shall be liable to imprisonment for fourteen years.

241. Wounding and similar acts

Any person who—

(a)unlawfully wounds another; or

(b)unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or taken by, any person,

shall be guilty of a felony, and shall be liable to imprisonment for seven years.

242. Failure to supply necessaries

Any person who, being charged with the duty of providing for another the necessaries of life, without lawful excuse fails to do so, whereby the life of that other person is or is likely to be endangered, or his health is or is likely to be permanently injured, shall be guilty of a felony, and shall be liable to imprisonment for three years.

243. Surgical operation

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.

244. Excess of force

Any person authorized by law or by the consent of the person injured by him to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.

245. Consent

Notwithstanding anything contained in section 244 consent by a person to the causing of his own death or his own maim does not affect the criminal responsibility of any person by whom such death or maim is caused.

Chapter XXIIA
Offences endangering environment

245A. Endangering the environment

Any person who in such a manner as to endanger or to be likely to cause harm to the environment—

(a)manages hazardous materials, processes and wastes in an environmentally unsound manner;

(b)mislabels wastes, pesticides or chemicals;

(c)aids or abets the illegal trafficking in wastes, chemicals, pesticides, hazardous processes or substances; or

(d)discharges or emits any pollutant into the environment otherwise than in accordance with the provisions of the Environment Management Act [Cap.. 60:02],

shall be guilty of an offence and shall be liable to a fine of K10,000,000 and to imprisonment for ten years.[1 of 2011]

Chapter XXIII
Criminal recklessness and negligence

246. Reckless and negligent acts

Any person who in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any person—

(a)drives any vehicle or rides on any public way; or

(b)navigates, or takes part in the navigation or working of, any vessel; or

(c)does any act with fire or any combustible matter, or omits to take precautions against any probable danger from any fire or any combustible matter in his possession; or

(d)omits to take precautions against any probable danger from any animal in his possession; or

(e)gives medical or surgical treatment to any person whom he has undertaken to treat; or

(f)dispenses, supplies, sells, administers, or gives away any medicine or poisonous or dangerous matter; or

(g)does any act with respect to, or omits to take proper precautions against any probable danger from, any machinery of which he is solely or partly in charge; or

(h)does any act with respect to, or omits to take proper precautions against any probable danger from, any explosive in his possession; or

(i)does any act with respect to, or omits to take proper precautions against any probable danger from, any loaded firearm in his possession,

shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

247. Other negligent acts causing harm

Any person who unlawfully does any act, or omits to do any act which it is his duty to do, not being an act or omission specified in the preceding section, by which act or omission harm is caused to any person, shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

248. Dealing in poisonous substances in negligent manner

Whoever does, with any poisonous substance any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such care with any poisonous substance in his possession as is sufficient to guard against probable danger to human life from such poisonous substance, shall be guilty of an offence and liable to imprisonment for two years.[1 of 2011]

249. Endangering safety of persons travelling by railway or road

Any person who, by any unlawful act or omission not specified in section 237, causes the safety of any person travelling by any railway or road to be endangered, shall be guilty of a misdemeanor.[1 of 2011]

250. Exhibition of false light, mark or buoy

Any person who exhibits any false light, mark or buoy, intending or knowing it to be likely that such exhibition will mislead any navigator, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

251. Conveying person by water for hire in unsafe or overlaoded vessel

Any person who knowingly or negligently conveys, or causes to be conveyed for hire, any person by water in any vessel, when that vessel is in such a state or so loaded as to be unsafe, shall be guilty of an offence and shall be liable to imprisonment for seven years.[1 of 2011]

252. Danger or obstruction in public way or line of navigation

Any person who by doing any act, or by omitting to take reasonable care with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

Chapter XXIV
Assaults

253. Common assault

Any person who unlawfully assaults another is guilty of a misdemeanor, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, shall be liable to imprisonment for one year.

254. Assaults occasioning actual bodily harm

Any person who commits an assault occasioning actual bodily harm shall be guilty of an offence and shall be liable to imprisonment for five years.[1 of 2011]

255. Assaults on persons protecting wreck

Any person who assaults and strikes or wounds any magistrate, officer, or other person lawfully authorized in or on account of the execution of his duty in or concerning the preservation of any vessel in distress, or of any vessel or goods or effects wrecked, stranded, or cast on shore, or lying under water, shall be guilty of an offence, and shall be liable to imprisonment for seven years.[1 of 2011]

256. Assaults punishable with more than five years imprisonment

Any person who—

(a)assaults any person with intent to commit a felony or to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence; or[1 of 2011]

(b)assaults, resists, or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer; or

(c)assaults any person in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or respecting any trade, business, or manufacture or respecting any person concerned or employed therein; or

(d)assaults, resists or obstructs any person engaged in such lawful execution of process, or in making a lawful distress, with intent to rescue any property lawfully taken under such process or distress; or

(e)assaults any person on account of any act done by him in the execution of any duty imposed on him by law,

shall be guilty of an offence, and shall be liable to imprisonment for five years.[1 of 2011]

Chapter XXV
Offences against liberty

257. Definition of kidnapping from the Republic

Any person who conveys any person beyond the limits of the Republic without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Malaŵi.

258. Definition of kidnapping from lawful guardianship

Any person who unlawfully takes or induces from lawful guardianship any child under the age of sixteen years or any person of unsound mind out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person of unsound mind from lawful guardianship.[1 of 2011]

259. Definition of abduction

Any person who by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

260. Punishment for kidnapping

Any person who kidnaps any person from Malaŵi or from lawful guardianship, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

261. Kidnapping or abducting in order to murder

Any person who kidnaps or abducts any person in order that such person may be murdered, or may be so disposed of as to be put in danger of being murdered, shall be guilty of a felony and shall be liable to imprisonment for life.[1 of 2011]

262. Kidnapping or abducting with intent to confine person

Any person who kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

263. Kidnapping or abducting in order to subject person to grievous harm, ransom, slavery, etc.

Any person who kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm, or ransom or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be guilty of a felony and shall be liable to imprisonment for ten years.[1 of 2011]

264. Wrongfully concealing or keeping in confinement kidnapped or abducted person

Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be guilty of a felony and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement.

265. Kidnapping or abducting child under sixteen years with intent to steal from its person

Any person who kidnaps or abducts any child under the age of sixteen years with the intention of taking dishonestly any movable property from the person of such child, shall be guilty of a felony and shall be liable to imprisonment for seven years.[1 of 2011]

266. Punishment for wrongful confinement

Whoever wrongfully confines any person shall be guilty of an offence and shall be liable to a fine of K100,000 or to imprisonment for five years.[1 of 2011]

267. Buying or disposing of any person as a slave

Any person who imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

268. Habitual dealing in slaves

Any person who habitually imports, exports, removes, buys, sells, traffics or deals in slaves shall be guilty of a felony, and shall be liable to imprisonment for ten years.

269. Unlawful compulsory labour

Any person who unlawfully compels any person to labour against the will of that person shall be guilty of a misdemeanor.

Division V — Offences relating to property

Chapter XXVI
Theft

270. Things capable of being stolen

(1)Every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen.

(2)Every inanimate thing which is the property of any person, and which is capable of being made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.

(3)Every tame animal, whether tame by nature or wild by nature and tamed, which is the property of any person, is capable of being stolen.

(4)Animals wild by nature, of a kind which is not ordinarily found in a condition of natural liberty in Malaŵi, which are the property of any person, and which are usually kept in a state of confinement, are capable of being stolen, whether they are actually in confinement or have escaped from confinement.

(5)Animals wild by nature, of a kind which is ordinarily found in a condition of natural liberty in Malaŵi, which are the property of any person, are capable of being stolen while they are in confinement and while they are being actually pursued after escaping from confinement, but not at any other time.

(6)An animal wild by nature is deemed to be in a state of confinement so long as it is in a den, cage, sty, tank, or other small enclosure, or is otherwise so placed that it cannot escape, and that its owner can take possession of it at pleasure.

(7)Wild animals in the enjoyment of their natural liberty are not capable of being stolen, but their dead bodies are capable of being stolen.

(8)Everything produced by or forming part of the body of an animal capable of being stolen is capable of being stolen.[1 of 2011]

271. Definition of theft

(1)Aperson who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing.

(2)A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to say—

(a)an intent permanently to deprive the general or special owner of the thing of it;

(b)an intent to use the thing as a pledge or security;

(c)an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(d)an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(e)in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.

The term "special owner" includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question.

(3)When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of it.

(4)When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered.

(5)A person shall not be deemed to take a thing unless he moves the thing or causes it to move.

272. Special cases

(1)When a factor or agent pledges or gives a lien on any goods or document of title to goods entrusted to him for the purpose of sale or otherwise for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving the lien, together with the amount of any bill of exchange or promissory note, accepted or made by him for or on account of his principal, such dealing with the goods or document of title is not deemed to be theft.

(2)When a servant, contrary to his master’s orders, takes from his possession any food in order that it may be given to an animal belonging to or in the possession of his master, such taking is not deemed to be theft.

273. Funds, etc., held under direction

When a person receives, either alone or jointly with another person, any money or valuable security or a power of attorney for the sale, mortgage, pledge or other disposition of any property, whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, or the proceeds or any part of the proceeds of such security or of such mortgage, pledge, or other disposition, shall be applied to any purpose or paid to any person specified in the direction, such money and proceeds are deemed to be the property of the person from whom the money, security, or power of attorney was received until the direction has been complied with.

274. Funds, etc., received by agents for sale

When a person receives, either alone or jointly with another person, any property from another on terms authorizing or requiring him to sell it or otherwise dispose of it, and requiring him to pay or account for the proceeds of the property, or any part of such proceeds, or to deliver anything received in exchange for the property, to the person from whom it is received, or some other person, then the proceeds of the property, and anything so received in exchange for it, are deemed to be the property of the person from whom the property was so received, until they have been disposed of in accordance with the terms on which the property was received, unless it is a part of those terms that the proceeds, if any, shall form an item in a debtor and creditor account between him and the person to whom he is to pay them or account for them, and that the relation of debtor and creditor only shall exist between them in respect thereof.

275. Money received for another

When a person receives, either alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it.

276. Theft by persons having an interest in the thing stolen

When any person takes or converts anything capable of being stolen, under such circumstances as would otherwise amount to theft, it is immaterial that he himself has a special property or interest therein, or that he himself is the owner of the thing taken or converted subject to some special property or interest of some other person therein, or that he is lessee of the thing, or that he himself is one of two or more joint owners of the thing, or that he is a director or officer of a corporation or company or society who are the owners of it.

277. Husband and wife

A person who, while a man and his wife are living together, procures either of them to deal with anything which is, to his knowledge, the property of the other in a manner which would be theft if they were not married, shall be deemed to have stolen the thing, and may be charged with theft.

278. General punishment for theft

Any person who steals anything capable of being stolen shall be guilty of the felony termed theft and shall be liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for five years.

279. Stealing wills

If the thing stolen is a testamentary instrument, whether the testator is living or dead, the offender shall be liable to imprisonment for ten years.

280. Stealing postal matter, etc.

If the thing stolen is postal matter or any chattel, money, or valuable security contained in any postal matter, the offender shall be liable to imprisonment for ten years.

281. Stealing cattle

If the thing stolen is any of the things following, that is to say: a horse, mare, gelding, ass, mule, bull, cow, ox, ram, ewe, wether, goat, pig, or ostrich, or the young of any such animal, the offender shall be liable to imprisonment for fourteen years.

282. Stealing from the person; stealing goods in transit, etc.

If a theft is committed under any of the circumstances following, that is to say—

(a)if the thing is stolen from the person of another;[1 of 2011]

(b)if the thing is stolen in a dwelling-house and its value exceeds K10, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house;

(c)if the thing is stolen from any kind of vessel or vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another;

(d)if the thing stolen is attached to or forms part of a railway;

(e)if the thing is stolen from a vessel which is in distress or wrecked or stranded;

(f)if the thing is stolen from a public office in which it is deposited or kept;

(g)if the offender, in order to commit the offence, opens any locked room, box, or other receptacle, by means of a key or other instrument;

(h)if the thing stolen is a bicycle;[1 of 2011]

(i)if the thing stolen is a vessel, an aircraft, a vehicle or a draught, the offender is liable to imprisonment for ten years.[1 of 2011]

283. Stealing by persons in public service

(1)Where it is proved to the satisfaction of the court that any person employed in the public service has by virtue of his employment received or has in his custody or under his control any money or other property, and such person has been unable to produce to his employer such money or other property or to make due account therefor, such person shall, unless he satisfies the court to the contrary, be presumed to have stolen such money or other property, and shall be convicted of the felony of theft.[32 of 1969][20 of 1973][6 of 1987][21 of 1996][1 of 2011]

(2)Where a person employed in the public service is charged with theft, and it is proved to the satisfaction of the court that during a period of that person’s employment there has been paid into a bank, Post Office Savings or other account to the credit of that person a greater amount in the aggregate than that person has received by way of lawful remuneration during such period, and the accused person fails to give to the court a satisfactory explanation of how he came into possession of such excess amount, the court shall take into consideration such failure in determining whether or not the accused person is guilty of the theft with which he is charged.

(3)Where a person employed in the public service is charged with theft, and it is proved to the satisfaction of the court that during a period of that person’s employment there has been any sudden or substantial enrichment of that person, or of any member of his family or household, in respect of money or other property, and no satisfactory explanation of such enrichment is given to the court, the court shall take into consideration the absence of such explanation in determining whether or not the accused person is guilty of the theft with which he is charged.

(4)The punishment for an offence under this section shall be an imprisonment for a minimum term of two years and a maximum of imprisonment for life.[20 of 1973][21 of 1996][1 of 2011]

(5)Where the court convicts of theft any person to whom subsection (1) applies, the court shall make an Order for the seizure of any money and the seizure and sale of any property of that person, or of any member of that person’s family or household whom the court is satisfied has been fraudulently enriched from the proceeds of the theft, sufficient to realize an amount, equivalent to the amount or value of the money or other property proved to have been stolen less the amount or value of any part of such money or property restored to his employer and any amount ordered to be paid under subsection (7), to be paid forthwith to his employer.[32 of 1969]

(6)Where a court convicts of theft any person to whom subsection (2) applies, the court shall make an Order for the payment to that person’s employer out of that person’s bank, Post Office Savings or other account of a sum equivalent to the amount or value of the money or other property proved to have been stolen less the amount or value of any part of such money or property restored to his employer, by that person. Any such Order shall be a sufficient authority to the banker, Post Office or other person or authority with whom the account is maintained for the payment to the employer of the amount specified in the Order out of any sums standing to the credit of the convicted person in such account.

284. Negligence by public officer in preserving money or other property

(1)Where any person employed in the public service has by virtue of such employment received or had in his custody or under his control any money or other property, and as a result of the gross negligence or recklessness of that person that money or other property, or any part thereof, is lost or stolen or cannot be accounted for by that person, then that person shall be guilty of an offence.

(2)Where any person is convicted of an offence under this section he shall be liable to a fine not exceeding the amount or value of the money or other property lost, stolen or unaccounted for, and to imprisonment for five years.

(3)Where any person is convicted of an offence under this section, the Court may make an Order for the seizure and sale of any property of the convicted person sufficient to realize an amount equivalent to the amount or value of the money or other property proved to have been lost or stolen, to be paid forthwith to his employer.

285. Theft of public subscriptions

Where a person convicted of the theft of money or other property which has been collected either wholly or in part by way of public subscription is a member or agent of any committee or similar body which is intended to administer such money or property, the Court may make such orders in relation to such person as it is required to make in respect of a person to whom section 283 (2) and (7) apply.

286. Stealing by clerks and servants

(1)If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he shall be liable to imprisonment for fourteen years.

(2)Where a court convicts a person to whom subsection (1) applies, the court shall make an order for the seizure of any money and for the seizure and sale of any other property of that person, or any member of his household whom the court is satisfied has been fraudulently enriched from the proceeds of the theft, sufficient to realize an amount equivalent to the amount or value of the money or property proved to have been stolen, less the amount or value of any part of such money or property restored to his employer, and the court shall order the amount realized as aforesaid to be paid forthwith to his employer.[32 of 1969][5 of 1976]

287. Stealing by directors or officers of companies

If the offender is a director or officer of a corporation or company, and the thing stolen is the property of the corporation or company, he shall be liable to imprisonment for fourteen years.[5 of 1976]

288. Stealing by agents, etc.

If the thing stolen is any of the things following, that is to say—

(a)property which has been received by the offender with a power of attorney for the disposition thereof;

(b)property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay, or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof;

(c)property which has been received by the offender either alone or jointly with any other person for or on account of any other person;

(d)the whole or part of the proceeds of any valuable security which has been received by the offender with a direction that the proceeds thereof should be applied to any purpose or paid to any person specified in the direction;

(e)the whole or part of the proceeds arising from any disposition of any property which have been received by the offender by virtue of a power of attorney for such disposition, such power of attorney having been received by the offender with a direction that such proceeds should be applied to any purpose or paid to any person specified in the direction,

the offender shall be liable to imprisonment for seven years.

289. Stealing by tenants or lodgers

If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, he shall be liable to imprisonment for seven years.[1 of 2011]

290. Stealing after previous conviction

If the offender, before committing the theft, had been convicted of a theft punishable under section 278, he shall be liable to imprisonment for seven years.

Chapter XXVII
Offences allied to stealing

291. Concealing registers

Any person who, with intent to defraud, conceals or takes from its place of deposit any register which is authorized or required by law to be kept for authenticating or recording the title to any property, or for recording births, baptisms, marriages, deaths or burials, or a copy of any part of any such register which is required by law to be sent to any public office, shall be guilty of a felony, and shall be liable to imprisonment for ten years.

292. Concealing wills

Any person who, with intent to defraud, conceals any testamentary instrument, whether the testator is living or dead, shall be guilty of a felony, and shall be liable to imprisonment for ten years.

293. Concealing deeds

Any person who, with intent to defraud, conceals the whole or part of any document which is evidence of title to any land or estate in land, shall be guilty of a felony and shall be liable to imprisonment for three years.

294. Killing animals with intent to steal

Any person who kills any animal capable of being stolen with intent to steal the skin or carcass, or any part of the skin or carcass, shall be guilty of an offence and shall be liable to the same punishment as if he had stolen the animal.

295. Severing with intent to steal

Any person who makes anything movable with intent to steal it shall be guilty of an offence and shall be liable

Penal Code

Chapter 7:01

Related documents

Penal Code

Chapter 7:01

Part I – General provisions

Chapter IPreliminary

1. Short title

2. Savings of certain laws

Chapter IIInterpretation

3. General rule of construction of the code

4. Interpretation

Chapter IIITerritorial application of this code

5. Offence committed partly within and partly beyond the jurisdiction

6. Jurisdiction and procedure in respect of certain offences committed in countries outside malawi

Chapter IVGeneral rules as to criminal responsibility

7. Ignorance of law

8. Bona fide claim of right

9. Intention: motive

10. Mistake of fact

11. Presumption of sanity

12. Insanity

13. Intoxication

14. Immature age

15. Judicial officers

16. Compulsion

17. Defence of person or property

18. Use of force in effecting arrest

19. Compulsion by spouse

20. Person not to be punished twice for the same offence

Chapter VParties to offences

21. Principal offenders

22. Offences committed by joint offenders in prosecution of common purpose

23. Counselling another to commit an offence

24. Offences by corporations, societies, etc.

Chapter VIPunishments

25. Different kinds of punishments

26. Sentence of death

27. Imprisonment

28. ***

28A. Short sentences of imprisonment

29. Fines

30. Forfeiture

31. Suspension of forfeiture of right to carry on business

32. Compensation

33. Costs

34. General punishment for misdemeanours

35. Sentences cumulative unless otherwise ordered

36. Escaped convicts to serve unexpired sentences when recaptured

37. ***

Part II – Crimes

Division I — Offences against public order

Chapter VIITreason and other offences against the government’s authority

38. Treason

39. Concealment of treason

40. Promoting war, etc., amongst groups

41. Inciting to mutiny

42. Aiding soldiers or policemen in acts of mutiny

43. Inducing soldiers or policemen to desert

44. Aiding prisoners of war to escape

45. Definitions

46. ***

47. ***

48. ***

49. ***

50. Seditious intention

51. Seditious offences

52. Forfeiture of machine and prohibition of publication

53. Legal proceedings

54. Unlawful oaths to commit capital offences

55. Other unlawful oaths to commit offences

56. Compelling another person to take an oath

57. Compulsion, how far a defence

58. Person present deemed to consent to administering of oath unless he reports to authorities

59. Unlawful drilling

60. Publication of false news likely to cause fear and alarm to the public

60A. ***

Chapter VIIIOffences affecting relations with foreign states and external tranquillity

61. Defamation of foreign dignitaries

62. Foreign enlistment

Chapter I
Preliminary

Chapter II
Interpretation

Chapter III
Territorial application of this code

Chapter IV
General rules as to criminal responsibility

Chapter V
Parties to offences

Chapter VI
Punishments

Chapter VII
Treason and other offences against the government’s authority

Chapter VIII
Offences affecting relations with foreign states and external tranquillity

Chapter IX
Unlawful assemblies, riots and other offences against public tranquility

Chapter X
Corruption and the abuse of office

Chapter XI
Offences relating to the administration of justice

Chapter XII
Rescues, escapes and obstructing officers of court of law

Chapter XIII
Miscellaneous offences against public authority