GAZETTE EXTRAORDINARY 1

The Malawi Gazette Supplement dated 21st February, 2023, containing

Acts. (No. 3C)
MALAWI GOVERNMENT

(Published 21st February, 2023)

Act

No. 8 of 2023

I assent

Dr. Lazarus Mccarthy chakwera

PresIDent
18th February, 2023

arranGeMent OF sectIOns
sectIOn
1. short title
2. amendment of s. 4 of cap 7:01
3. repeal of s. 50 of the principal act
4. repeal of s. 51 of the principal act
5. repeal of s. 52 of the principal act
6. repeal of s. 53 of the principal act
7. substitution of s. 136 of the principal act
8. amendment of s. 137 of the principal act
9. substitution of s. 138 of the principal act
10. Insertion of section 138a into the principal act
11. substitution of s.139 of the principal act
12. Insertion of sections 139a and 139B into the principal act
13. amendment of s. 140 of the principal act
14. amendment of s. 142 of the principal act
15. amendment of s. 143 of the principal act
16. amendment of s. 144 of the principal act
17. substitution of s. 155 of the principal act
18. substitution of s. 155a of the principal act
19. amendment of s. 157 of the principal act
20. amendment of s. 158 of the principal act
21. amendment of s. 159a of the principal act
22. Insertion of section s. 159B into the principal act
23. amendment of s. 160a of the principal act
2 Penal Code (Amendment) No. 8

sectIOn

24. amendment of s. 160B of the principal act

25. amendment of s. 160F of the principal act
26. amendment of s. 160G of the principal act
27. amendment of s. 164 of the principal act
28. amendment of s. 165 of the principal act
29. amendment of s. 167 of the principal act
30. Insertion of chapter XIXB into the principal act
31. amendment of s. 219 of the principal act
32. amendment of s. 220 of the principal act
33. amendment of s. 258 of the principal act
34. amendment of s. 265 of the principal act
35. substitution of s. 331a of the principal act

An Act to amend the Penal Code

enacteD by the Parliament of Malawi as follows__
short title 1. this act may be cited as the Penal code (amendment) act,
2023.
amendment 2. the Penal code (hereinafter referred to as the “principal
of s. 4 of act”) is amended in section 4 by inserting, in the correct
cap. 7:01
alphabetical order, the following new definitions—
““child” means a person under the age of eighteen years;
“terrorist act” means—
(a) an act or omission whether committed in or outside
Malaŵi, which constitutes an offence within the scope of the
united nations counter-terrorism conventions; and
(b) an act, or threat of action in or outside Malaŵi which—
(i) involves serious bodily harm to a person;
(ii) involves serious damage to property;
(iii) endangers the life of a person;
(iv) creates a serious risk to the health or safety of the
public or a section of the public;
(v) involves the use of firearms or explosives;
(vi) involves releasing into the environment or any part
thereof, or distributing or exposing the public or any part
thereof, to any dangerous, hazardous, radioactive or harmful
substance; any toxic chemical; or any microbial or other
biological agent or toxin;
No. 8 Penal Code (Amendment) 3

(vii) is designed or intended to disrupt any computer

system or the provision of services directly related to
communications infrastructure, banking or financial
services, utilities, transportation or other essential
infrastructure;
(viii) is designed or intended to disrupt the provision of
essential emergency services such as police, civil, defence or
medical services;
(ix) prejudices national security or public safety; or
(x) involves participating in the activities of a terrorist
group, including the supplying of information or material
resources, or the funding of its activities in any way, with
knowledge of the fact that such participation will contribute
to the criminal activities of the group, and is intended, or by
its nature and context, may reasonably be regarded as being
intended, to intimidate the public or a section of the public;
or compel a Government or an international organization to
do, or refrain from doing, an act; or seriously destabilize or
destroy the fundamental, political, constitutional, economic
or social structures of a country or an international
organization, and for the purpose of advancing a political,
ideological, or religious cause; but does not include an act
which disrupts any services, and is committed in pursuance
of a protest, demonstration or stoppage of work, as long as,
and as long as only, the act is not intended to result in any
harm referred to in this paragraph;
“terrorist organization” means a legal person or any group of
terrorists that, directly or indirectly—
(a) unlawfully and willfully, commits or attempts to commit,
a terrorist act by any means;
(b) participates as an accomplice in a terrorist act;
(c) organizes or directs others to commit a terrorist act; or
(d) contributes to the commission of a terrorist act by a
group of persons acting with a common purpose where the
contribution is made intentionally and with the aim of
furthering the terrorist act or with the knowledge of the
intention of the group to commit a terrorist act; and
“terrorist property” means—
(a) proceeds from the commission of a terrorist act;
(b) money or other property which has been, or is likely to
be used to commit a terrorist act; and
4 Penal Code (Amendment) No. 8

(c) money or other property which has been, is being, or is

likely to be used by a terrorist group;”.
repeal of s. 3. the principal act is amended by repealing section 50.
50 of the
principal act

repeal of s. 4. the principal act is amended by repealing section 51.

51 of the
principal act

repeal of s. 5. the principal act is amended by repealing section 52.

52 of the
principal act

repeal of s. 6. the principal act is amended by repealing section 53.

53 of the
principal act

substitution 7. the principal act is amended by deleting section 136 and

of s.136 of substituting therefor a new section as follows—
the principal
act
“abduction 136.—any person who unlawfully takes a child out
of child of the custody or protection of the father, mother or
other person having the lawful care or charge of the
child, against the will of the father, mother or other
person, commits an offence and shall, upon conviction,
be liable to imprisonment for seven years.”.
amendment 8. the principal act is amended in section 137 (2) by deleting
of s.137 of the words “sixteen years”, immediately after the words “age of”,
and substituting therefor the words “eighteen years”.
the principal
act

substitution 9. the principal act is amended by deleting section 138 and

of s.138 of substituting therefor a new section as follows—
the principal
act
“sexual “138.— (1) any male person who has sexual
intercourse intercourse with a female child shall be guilty of a
with a child
felony and shall, upon conviction, be liable to
imprisonment for life.
(2) any female person who has sexual intercourse
with a male child shall be guilty of a felony and shall,
upon conviction, be liable to imprisonment for life.
(3) It shall be a defence to a charge under subsection
(1) or subsection (2) if it is proved to the court that the
male person or female person so charged is a child
and—
No. 8 Penal Code (Amendment) 5

(a) the age difference between the person so

charged and the female child or male child against
whom the offence is alleged to have been committed
is two years or less; and
(b) the female child or male child against whom
the offence is alleged to have been committed
consented to the sexual intercourse.”.
10. the principal act is amended by inserting, immediately after Insertion of s.
section 138, a new section 138a as follows— 138a into the
principal act
“attempted 138A.—(1) any male person who attempts to have
sexual sexual intercourse with a female child shall be guilty of
a felony and shall, upon conviction, be liable to
intercourse
with a child
imprisonment for twenty-one years.
(2) any female person who attempts to have sexual
intercourse with a male child shall be guilty of a felony
and shall, upon conviction, be liable to imprisonment
for twenty-one years.
(2) It shall be a defence to a charge under subsection
(1) or subsection (2) if it is proved to the court that the
male person or female person so charged is a child
and—
(a) the age difference between the person so
charged and the female child or male child against
whom the offence is alleged to have been committed
is two years or less; and
(b) the female child or male child against whom
the offence is alleged to have been committed
consented to the attempted sexual intercourse.”.
11. the principal act is amended by deleting section 139 and substitution s.
substituting therefor a new section as follows— 139 of the
principal act
“sexual 139.—any man who, knowing a woman or a girl to
intercourse
with a woman
be a person with a mental disability has or attempts to
or girl with a have sexual intercourse with the woman or girl, under
mental circumstances not amounting to rape, but which prove
disability that the offender knew at the time of the commission of
the offence that the woman or girl has a mental
disability, commits an offence and shall, upon
conviction, be liable to imprisonment for life.
12. the principal act is amended by inserting, immediately after Insertion of
section 139, new sections 139a and 139B as follows— ss.139a and
139B into the
principal act
6 Penal Code (Amendment) No. 8

“sexual 139A. any woman who, knowing a man or a boy

intercourse
with a man or
to be a person with a mental disability has or attempts
boy with a to have sexual intercourse with the man or boy under
mental circumstances not amounting to rape, but which prove
disability that the offender knew at the time of the commission of
the offence that the man or boy has a mental disability,
commits an offence and shall, upon conviction, be
liable to imprisonment for life.
“Definition of 139B. For the purposes of this chapter, “person
mental
disability
with a mental disability” means a person affected by
any mental disorder including any disorder of the mind,
to the extent that the person, at the time of the alleged
offence is—
(a) unable to appreciate the nature or reasonably
foresee the consequences of the sexual act;
(b) able to appreciate the nature of the act and
reasonably foresee consequences of the act, but
unable to act in accordance with the appreciation;
(c) unable to resist the commission of the act; or
(d) unable to communicate his or her
unwillingness to participate in the act.”.
amendment 13. the principal act is amended in section 140 by deleting the
of s.140 of words—
the principal
act (a) “twenty-one years”, in paragraph (a), immediately after the
words “age of” and substituting therefor the words “eighteen
years”; and
(b) “fourteen years” immediately after the words
“imprisonment for” and substituting therefor the word “life”.
amendment 14. the principal act is amended in section 142 by deleting the
of s.142 of words—
the principal
act (a) “sixteen years” immediately after the words “age of” and
substituting therefor the words “eighteen years”; and
(b) “five years” immediately after the words “imprisonment
for” and substituting therefor the words “twenty-one years”.
amendment 15. the principal act is amended in section 143 (1) by deleting
of s.143 of the words “five years” immediately after the words “imprisonment
for” and substituting therefor the words “twenty-one years”.
the principal
act

amendment 16. the principal act is amended in section 144 (3) by—
of s.144 of
the principal (a) inserting the word “either” immediately after the words;
act “and”; and
No. 8 Penal Code (Amendment) 7

(b) deleting paragraphs (a), (b) and (c) and substituting

therefor new paragraphs as follows—
“(a) is under the age of eighteen years; or
(b) if she is of or over the age of eighteen years, is so
detained against her will.”.
17. the principal act is amended by deleting section 155 and substitution of
substituting therefor a new section as follows— s. 155 of the
principal act
“Indecent 155.—(1) any person who unlawfully and
assault of indecently assaults a boy under the age of eighteen
years shall be guilty of a felony and shall be liable to
boys under
eighteen
years imprisonment for fourteen years.
(2) It shall be no defence to a charge for an indecent
assault on a boy under the age of eighteen years to
prove that the boy consented to the act of indecency.”.
18. the principal act is amended by deleting section 155a and substitution
substituting therefor a new section as follows— s. 155a of the
principal act
“Indecent 155A. any person who indecently assaults another
assault
against
person, knowing that other person to be a person with a
persons with mental disability, shall be guilty of an offence and shall,
a mental upon conviction, be liable to imprisonment for twenty-
disability one years.”.
19. the principal act is amended in section 157— amendment
of s.157 of the
(a) in the proviso to subsection (1), by deleting the words principal act
“sixteen years” immediately after the words “age of” and
substituting therefor the words “eighteen years”; and
(b) in subsection (4), by deleting the words “twenty-one years”
immediately after the words “age of” and substituting therefor the
words “eighteen years”.
20. the principal act is amended in section 158 by— amendment
of s.158 of the
(a) deleting the words “sixteen years” immediately after the principal act
words “age of” and substituting therefor the words “eighteen
years”;
(b) deleting the word “.” at the end and substituting therefor the
word “:”; and
(c) inserting a proviso thereto as follows—
“Provided that if it is alleged in the charge and proved that
the male person is under the age of eighteen years, the offender
shall be liable to imprisonment for life.”.
8 Penal Code (Amendment) No. 8

amendment 21. the principal act is amended in section 159a by deleting

of s.159a of
the principal
the words—
act (a) “twenty-one years” immediately after the words “age of”
and substituting therefor the words “eighteen years”;
(b) “five years” immediately after the words “imprisonment
for” and substituting therefor the words “life”; and
(c) “minors” in the marginal note, and substituting therefor the
words “a child”.
Insertion of 22. the principal act is amended by inserting, immediately
s.159B into
the principal
after section 159a, a new section 159B as follows—
act
“abuse of 159B. any person who, being in a position of trust
position of or authority towards another person takes advantage of
that position or authority to have sexual intercourse
trust or
authority
with that other person, such sexual intercourse not
amounting to rape or defilement, commits an offence
and shall, upon conviction, be liable to imprisonment
for seven years. ”.
amendment 23. the principal act is amended in section 160a by deleting—
of s.160a of
the principal (a) the definition of the word “child”; and
(b) in the definition of the words “offensive material” in
act

paragraph (b), deleting the words “sixteen years” and substituting

therefor the words “eighteen years”.
amendment 24. the principal act is amended in section 160B—
of s.160B of
the principal (a) in subsection (1), by deleting the words “fourteen years”
act immediately after the words “imprisonment for” and substituting
therefor the words “twenty-one years”;
(b) in subsection (2), by deleting the words “twenty-one years”
immediately after the words “imprisonment for” and substituting
therefor the word “life”; and
(c) by inserting a new subsection immediately after subsection
(3), as follows—
“(4) It shall be a defence to a charge under subsection (1) if
it is proved to the court that the person so charged is a child
and—
(a) the age difference between the person so changed and
the child against whom the offence is alleged to have been
committed is two years or less; and
(b) the child against whom the offence is alleged to have
been committed consented to the sexual activity.”.
No. 8 Penal Code (Amendment) 9

25. the principal act is amended in section 160F by deleting the amendment
words “k100,000” in subsection (1)(b), immediately after the words of s.160F of
“fine of” and substituting therefor the words “k10,000,000”.
the principal
act

26. the principal act is amended in section 160G by deleting the amendment
words “sixteen years” immediately after the words “age of” and of s.160G of
substituting therefor the words “eighteen years”.
the principal
act

27. the principal act is amended in section 164 by deleting the amendment
words “sixteen years” immediately after the words “age of” and of s.164 of
substituting therefor the words “eighteen years”.
the principal
act

28. the principal act is amended in section 165 by deleting the amendment
words “sixteen years” immediately after the words “age of” and of s.165 of
substituting therefor the words “eighteen years”.
the principal
act
29. the principal act is amended in section 167(1), by deleting amendment
the words “sixteen years” immediately after the words “age of” and of s.167 of
substituting therefor the words “eighteen years”.
the principal
act

30. the principal act is amended by inserting, immediately after Insertion of

chapter XIXa, a new chapter XIXB as follows— chapter
XIXB into
the principal
“chaPter XIXB act

terrOrIsM
terrorism 217B.—(1) any person who carries out a terrorist act
commits an offence and shall, upon conviction, be
liable to imprisonment for life.
(2) any person who aids, abets or attempts to carry
out a terrorist act commits an offence and shall, upon
conviction, be liable to imprisonment for life.
Provision of 217C. any person who provides, attempts to
property or provide or causes another person to provide any
property or service intending, knowing or having
service for
commission
of a terrorist reasonable grounds to believe that the property or
act service may be used—
(a) by a terrorist or terrorist organization for any
purpose; or
(b) to carry out a terrorist act or facilitate the
carrying out of a terrorist act,
commits an offence and shall, upon conviction, be
liable to imprisonment for life.
10 Penal Code (Amendment) No. 8

acquisition 217D. any person who solicits, acquires or

or possession
of property
possesses any property intending that it be used, or
for knowing that it may be used in whole or in part, to carry
commission out a terrorist act, commits an offence and shall, upon
of terrorist act
conviction, be liable to imprisonment for life.
recruitment 217E. any person who knowingly recruits or
of members
of a terrorist
facilitates the recruitment of another person—
organization (a) to be a member of a terrorist organization; or
(b) to carry out a terrorist act,
commits an offence and shall, upon conviction, be
liable to imprisonment for life.
Providing or 217F.— (1) any person who provides or facilitates
facilitating
training for
the training of a member of a terrorist organization or
terrorists any other person—
(a) intending that the knowledge and skills
acquired be used to carry out a terrorist act; or
(b) knowing that the knowledge and skills
acquired may be used to carry out a terrorist act,
commits an offence and shall, upon conviction, be
liable to imprisonment for life.
(2) any person who receives training for the purpose
of carrying out a terrorist act commits an offence and
shall, upon conviction, be liable to imprisonment for
life.
harbouring, 217G. any person who—
concealing of,
hindering, or (a) harbours or conceals another person; or
(b) prevents, hinders or interferes with the arrest of
interfering
with arrest of
persons another person,
committing
terrorist acts knowing or having reasonable grounds to believe
that the other person—
(i) has carried out terrorist act;
(ii) intends to carry out a terrorist act; or
(iii) is a member of a terrorist organization,
commits an offence and shall, upon conviction, be
liable to imprisonment for life.
Provision of 217H any person who knowingly offers to provide
weapons for
commission
or provides a weapon to—
of terrorist (a) a terrorist organization;
acts
No. 8 Penal Code (Amendment) 11

(b) a member of a terrorist organization; or

(c) any other person for use by that other person to
carry out a terrorist act,
commits an offence and shall, upon conviction, be
liable to imprisonment for life.
Jurisdiction in 217I. any person who—
respect of
terrorist (a) commits an offence under this chapter in
offences another country; or
committed
outside (b) while being in Malawi, carries out or aids or
Malaŵi abets the carrying out of an offence under this
chapter in another country,
may be tried and punished in Malawi as if the offence
was wholly committed within the republic.”.
31. the principal act is amended in section 219 by deleting the amendment
words “sixteen years” immediately after the words “age of” and of s.219 of the
substituting therefor the words “eighteen years”.
principal act

32. the principal act is amended in section 220 by deleting the amendment
words “sixteen years” immediately after the words “age of” and of s.220 of the
substituting therefor the words “eighteen years”. principal act

33. the principal act is amended in section 258 by deleting the amendment
words— of s.258 of the
principal act
(a) “sixteen years” immediately after the words “age of” and
substituting therefor the words “eighteen years”; and
(b) “of unsound mind” wherever they appear and substituting
therefor the words “with a mental disability”.
34. the principal act is amended in section 265 by deleting— amendment
of s.265 of the
(a) the words “under the age of sixteen years” immediately principal act
after the words “any child”; and
(b) the words “under sixteen years” in the marginal note.
35. the principal act is amended by deleting section 331a and substitution of
substituting therefor a new section as follows— s. 331a of the
principal act
“Money 331A.—(1) any person who, knowingly or who has
laundering reasonable grounds to believe that any property,
including his own property, in whole or in part, directly
or indirectly, represents proceeds of a predicate
offence—
(a) converts or transfers the property with the aim
of—
12 Penal Code (Amendment) No. 8

(i) concealing or disguising the illicit origin of

that property; or
(ii) aiding any person, including himself,
involved in the commission of the offence to evade
the legal consequences thereof,
(b) conceals or disguises the true nature, origin,
location, disposition, movement or ownership of the
property;
(c) acquires, possesses or uses that property; or
(d) participates in, associates with or conspires to
commit, attempts to commit or aids, abets or
facilitates the commission of any act or omission
referred to in paragraphs (a), (b) or (c),
commits an offence.
(2) a person who commits an offence under this
section shall, upon conviction, be liable to—
(a) in the case of a natural person, to imprisonment
for life; or
(b) in the case of a legal person, to a fine of
k500,000,000 and revocation of his business licence.
(3) For purposes of this section “proceeds of a
predicate offence” has the meaning ascribed to that
cap 7:07 term in the Financial crimes act.”.
Passed in Parliament this twenty first day of november, two thousand and
twenty-two.

FIOna kaLeMBa
Clerk of Parliament