- 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.]
Part I – General provisions
1. Short titleThis Act may be cited as "The Penal Code" and hereinafter referred to as "this Code".
2. Savings of certain laws
3. General rule of construction of the codeThis Code shall be interpreted in accordance with the principles of legal interpretation that—
4. InterpretationIn 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]
Territorial application of this code
5. Offence committed partly within and partly beyond the jurisdictionExcept 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
General rules as to criminal responsibility
7. Ignorance of lawIgnorance 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 rightA 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
10. Mistake of fact
11. Presumption of sanityEvery 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. InsanitySubject 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]
14. Immature age
15. Judicial officersExcept 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. CompulsionA 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 propertySubject 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 arrestWhere 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 spouseA 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 offenceA 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.
Parties to offences
21. Principal offenders
22. Offences committed by joint offenders in prosecution of common purposeWhen 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 offenceWhen 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.
25. Different kinds of punishmentsThe following punishments may be inflicted by a court—
26. Sentence of death
28. ***[repealed by 1 of 2011]
28A. Short sentences of imprisonment
[11 of 1989][1 of 2011]
|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|