Criminalising Harmful Cultural Practices: Lessons from Malawi

Abstract

Clarity and certainty in the definition of criminal offences are widely recognised as one of the essential requirements for the rule of law and effective enforcement of offences. The need for such clarity and certainty is more pressing when the targeted conduct was, prior to its formal criminalisation, widely acceptable social, economic, and political conduct or form of behaviour. In such cases, the communicative function of criminal law demands that the legislature must clearly state the conduct being proscribed to citizens (who risk punishment for engaging in the criminalised conduct) and law enforcers (who have a legal duty to enforce the new offences). This is more so in sub-Saharan Africa where countries are now criminalising social and cultural practices deemed ‘harmful’ because they violate and undermine fundamental human rights and freedoms, but which have been deemed beneficial. Criminalising social and cultural practices is especially difficult because of the ever-evolving nature of societies and cultures. Malawi is one of the countries that has taken the criminal law approach by criminalising harmful social, cultural, and religious practices. Its Gender Equality Act criminalises all ‘harmful’ social, cultural, and religious practices, whilst the Child Care, Protection and Justices Act criminalises ‘harmful’ practices that affect children.  This article evaluates the framing of the two offences for their conformity with the rule of law requirements of clarity and certainty in the definition of offences, and the prohibition against ex-post facto criminalisation and application of criminal statutes. It does so to draw lessons for other African countries seeking to criminalise harmful practices. All in all, this article finds that the framing of the offences runs afoul of the rule of law requirements.