ARRANGEMENT OF SECTIONS
1. Short title
2. Savings of certain laws
3. General rule of construction of the Code
TERRITORIAL 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 the Republic.
GENERAL 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
14. Immature age
15. Judicial officers
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
PARTIES 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.
25. Different kinds of punishments
26. Sentence of death
28. [Repealed by 1 of 2011]
28A. Short sentences of imprisonment
31. Suspension or forfeiture of right to carry on business
34. General punishment for misdemeanors
35. Sentences cumulative unless otherwise ordered
36. Escaped convicts to serve unexpired sentences when recaptured
37. [Repealed by 5 of 1969]
Offences Against Public Order
TREASON AND OTHER OFFENCES AGAINST THE GOVERNMENT'S AUTHORITY
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
46-49. [Repealed by 24 of 2012]
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. [Repealed by 17 of 1994]
OFFENCES AFFECTING RELATIONS WITH FOREIGN STATES AND EXTERNAL TRANQUILLITY
61. Defamation of foreign dignitaries
62. Foreign enlistment
UNLAWFUL ASSEMBLIES, RIOTS AND OTHER OFFENCES AGAINST PUBLIC TRANQUILLITY
64. Definition of society and unlawful society
65. Managing unlawful society
66. Being member of unlawful society
67. Prosecutions under sections 65 and 66
68. Power of entry, arrest, search, etc.
69. Disposal of property of an unlawful society
70. Forfeiture of insignia, etc.
71. Unlawful assembly
72. Punishment of unlawful assembly
73. Punishment of riot
74. Making proclamation for rioters to disperse
75. Dispersion of rioters after proclamation made
76. Rioting after proclamation
77. Preventing or obstructing the making of proclamation
78. Rioters demolishing buildings, etc.
79. Rioters injuring buildings, machinery, etc.
80. Riotously preventing the sailing of ship
81. Prohibition of carrying offensive weapons without lawful authority or reasonable excuse
82. Forcible entry
83. Forcible detainer
84. Fighting in public
85. Challenge to fight a duel
86. Threatening violence
87. Proposing violence at assemblies
89. Assembling for the purpose of smuggling
Offences Against the Administration of Lawful Authority
CORRUPTION AND THE ABUSE OF OFFICE
90. Official corruption
91. Extortion by public officers
92. Public officers receiving property to show favour
93. Officers charged with administration of property of a special character or with special duties
94. False claims by officials
95. Abuse of office
96. False certificates by public officers
97. Unauthorized administration of oaths
98. False assumption of authority
99. Personating public officers
100. Threat of injury to persons employed in public service
OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE
101. Perjury and subornation of perjury
102. Perjury in written statement
103. False statements by interpreters
104. Punishment of perjury and subornation
105. Fabricating evidence
106. False swearing
107. Deceiving witnesses
108. Destroying evidence
109. Conspiracy to defeat justice and interference with witnesses
110. Compounding felonies
111. Compounding penal actions
112. Advertisements for stolen property
113. Offences relating to judicial proceedings
RESCUES, ESCAPES AND OBSTRUCTING OFFICERS OF COURT OF LAW
116. Permitting prisoners to escape
117. Aiding prisoners to escape
118. Removal, etc., of property under lawful seizure
119. Obstructing court officers
MISCELLANEOUS OFFENCES AGAINST PUBLIC AUTHORITY
120. Frauds and breaches of trust by public officers
121. Neglect of official duty
122. False information to person employed in the public service
123. Disobedience of statutory duty
124. Soliciting, etc., to break the law
125. Soliciting public officers, etc., to fail to carry out their duties
126. Arrest without warrant
Offences Injurious to the Public in General
OFFENCES RELATING TO RELIGION
127. Insult to religion of any class
128. Disturbing religious assemblies
129. Trespassing on burial places
130. Writing or uttering words with intent to wound religious feelings
131. Hindering burial of dead body, etc.
OFFENCES AGAINST MORALITY
132. Definition of rape
133. Punishment of rape
134. Attempted rape
136. Abduction of girls under sixteen
137. (1) Indecent assaults on females
(3) Insulting the modesty of a woman
137A. Indecent practices between females
138. (1) Defilement of girls under sixteen years of age
139. Defilement of idiots or imbeciles
141. Procuring defilement of woman by threats or fraud or administering drugs
142. Householder, etc., permitting defilement of girl under sixteen years of age on his premises
143. (1) Detention with intent or in brothel
(2) Constructive detention by withholding clothes
144. Power of search
145. Male person living on earnings of prostitution or persistently soliciting
146. Woman aiding, etc., for gain prostitution of another woman
147A. Promoting prostitution, etc.
148. Conspiracy to defile
149. Attempts to procure abortion
150. The like by woman with child
151. Supplying drugs or instruments to procure abortion
152. Knowledge of age of female immaterial
153. Unnatural offences
154. Attempt to commit unnatural offences
155. Indecent assault of boys under fourteen
155A. Indecent assault against idiots and imbeciles
156. Indecent practices between males
157. (1) Incest by males
(2) Consent immaterial
(4) Order for guardianship
158. Incest by females
159. Test of relationship
159A. Sexual intercourse with minors under one's care or protection
160. Sanction of Director of Public Prosecutions
OFFENCES AGAINST MORALITY RELATING TO CHILDREN
160B. Sexual activity with a child
160C. Indecent practice in the presence of or with a child
160D. Showing, selling, exposing offensive materials to a child
160E. Recording a child
160F. Procuring child to take part in public entertainment
160G. Knowledge of age of child immaterial
OFFENCES RELATING TO MARRIAGE AND DOMESTIC OBLIGATIONS
161. Fraudulent pretence of marriage
163. Marriage ceremony fraudulently gone through without lawful marriage
164. Desertion of children
165. Neglecting to provide food, etc., for children
166. Master not providing for servants or apprentices
167. Child stealing
NUISANCES AND OFFENCES AGAINST HEALTH AND CONVENIENCE
168. Common nuisance
169. Gaming houses
170. (1) Betting houses
171. Authorized lotteries
172. Small lotteries incidental to certain entertainments to be authorized lotteries
174. Exemption of private lotteries
175. Keeper of premises defined
176. Offence to organize or manage or conduct pools
177. Chain letters
178. Opening of postal article suspected of containing chain letter
179. Obscene matters or things
180. Idle and disorderly persons
181. Conduct likely to cause a breach of the peace
182. Use of insulting language
183. Nuisances by drunken persons, etc.
184. Rogues and vagabonds
185. Power to order removal of undesirable persons from certain Municipalities, Townships and other areas
186. Appeal against removal order
187. Detention in custody pending consideration of making of removal order
188. Subsistence allowance where removal order made
189. Penalty for failing to comply with removal order, etc.
190. Review of removal orders
191. (1) Wearing uniform without authority prohibited
(2) Bringing contempt on uniform
(3) Importation and sale of uniform, etc., without authority, prohibited
(4) Forfeiture of uniform, etc., on conviction
192. Negligent act likely to spread disease dangerous to life
193. Adulteration of food or drink intended for sale
193A. Importation of adulterated food or drinks
194. Sale of noxious food or drink
195. Adulteration of drugs
195A. Importation of adulterated drugs
196. Sale of adulterated drugs
197. Fouling water
198. Fouling air
199. Offensive trades
200. Definition of libel
201. Definition of defamatory matter
202. Definition of publication
203. Definition of unlawful publication
204. Cases in which publication of defamatory matter is absolutely privileged
205. Cases in which publication of defamatory matter is conditionally privileged
206. Explanation as to good faith
207. Presumption as to good faith
Offences against the Person
MURDER AND MANSLAUGHTER
210. Punishment of murder
211. Punishment of manslaughter
212. Malice aforethought
213. Killing on provocation
214. Provocation defined
214A. Diminished responsibility
215. Causing death defined
216. When child deemed to be a person capable of being killed
217. [Repealed by 23 of 1970]
DUTIES RELATING TO THE PRESERVATION OF LIFE AND HEALTH
218. Responsibility of person who has charge of another
219. Duty of parent, etc.
220. Duty of masters
221. Duty of persons doing dangerous acts
222. Duty of persons in charge of dangerous things
OFFENCES CONNECTED WITH MURDER AND SUICIDE
223. Attempt to murder
224. [Repealed by 1 of 2011]
225. Accessory after the fact to murder
226. Written threats to murder
227. Conspiracy to murder
228. Aiding suicide
229. Attempting suicide
230. Offence of infanticide
231. Killing unborn child
232. Concealing birth of child
232A. Abandonment of child at birth
OFFENCES ENDANGERING LIFE OR HEALTH
233. Disabling in order to commit felony or misdemeanor
234. Stupefying in order to commit felony or misdemeanor
235. Acts intended to cause grievous harm or prevent arrest
236. Preventing escape from wreck
237. Intentionally endangering safety of persons travelling by railway or road
238. Grievous harm
239. Attempting to injure by explosive substances
240. Maliciously administering poison with intent to harm
241. Wounding and similar acts
242. Failure to supply necessaries
243. Surgical operation
244. Excess of force
OFFENCES ENDANGERING ENVIRONMENT
245A. Endangering the environment
CRIMINAL RECKLESSNESS AND NEGLIGENCE
246. Reckless and negligent acts
247. Other negligent acts causing harm
248. Dealing in poisonous substances in negligent manner
249. Endangering safety of persons travelling by railway or road
250. Exhibition of false light, mark or buoy
251. Conveying person by water for hire in unsafe or overloaded vessel
252. Danger or obstruction in public way or line of navigation
253. Common assault
254. Assaults occasioning actual bodily harm
255. Assaults on persons protecting wreck
256. Assaults punishable with five year's imprisonment
OFFENCES AGAINST LIBERTY
257. Definition of kidnapping from the Republic
258. Definition of kidnapping from lawful guardianship
259. Definition of abduction
260. Punishment for kidnapping
261. Kidnapping or abducting in order to murder
262. Kidnapping or abducting with intent to confine person
263. Kidnapping or abducting in order to subject person to grievous harm, ransom, slavery, etc.
264. Wrongfully concealing or keeping in confinement kidnapped or abducted person
265. Kidnapping or abducting child under sixteen years with intent to steal from its person
266. Punishment for wrongful confinement
267. Buying or disposing of any person as a slave
268. Habitual dealing in slaves
269. Unlawful compulsory labour
Offences Relating to Property
270. Things capable of being stolen
271. Definition of theft
272. Special cases
273. Funds, etc., held under direction
274. Funds, etc., received by agents for sale
275. Money received for another
276. Theft by persons having an interest in the thing stolen
277. Husband and wife
278. General punishment for theft
279. Stealing wills
280. Stealing postal matter, etc.
281. Stealing cattle
282. Stealing from the person; stealing goods in transit, etc.
283. Stealing by persons in public service
284. Negligence by public officer in preserving money or other property
285. Theft of public subscriptions
286. Stealing by clerks and servants
287. Stealing by directors or officers of companies
288. Stealing by agents, etc.
289. Stealing by tenants or lodgers
290. Stealing after previous conviction
OFFENCES ALLIED TO STEALING
291. Concealing registers
292. Concealing wills
293. Concealing deeds
294. Killing animals with intent to steal
295. Severing with intent to steal
296. Fraudulent disposal of mortgaged goods
297. Fraudulently dealing with minerals in mines
298. Fraudulent appropriation of power
298A. Fraudulent appropriation of water
298B. Fraudulent appropriation of telecommunication services
299. Unlawful use of vehicles, animals, etc.
ROBBERY AND EXTORTION
300. Definition of robbery
301. Punishment of robbery
302. Attempted robbery
303. Assault with intent to steal
304. Demanding property by written threats
305. Attempts at extortion by threats
306. Procuring execution of deeds, etc., by threats
307. Demanding property with menaces with intent to steal
BURGLARY, HOUSEBREAKING AND SIMILAR OFFENCES
309. Housebreaking and burglary
310. Entering dwelling-house with intent to commit felony
311. Breaking into building and committing a felony
312. Breaking into building with intent to commit a felony
313. Persons found armed, etc., with intent to commit felony
314. Criminal trespass
316. Unauthorized user of land and premises
317. (1) Forfeiture of aircraft, vessel or vehicle
(4) Damaging or unlawfully removing detained aircraft, vessel or vehicle
318. Definition of false pretence
319. Obtaining by false pretences
319A. Fraud other than false pretence
319B. Evasion of liability by false pretence
319C. Making off without payment
319D. Passing valueless cheque
320. Obtaining execution of a security by false pretences
322. Obtaining credit, etc., by false pretences
323. Conspiracy to defraud
324. Frauds on sale or mortgage of property
325. Pretending to tell fortunes
326. Obtaining registration, etc., by false pretence
327. False declaration for passport
RECEIVING PROPERTY STOLEN OR UNLAWFULLY OBTAINED AND LIKE OFFENCES
328. (1) Receiving stolen property, etc.
(2) Receiving property unlawfully obtained
329. Person having in possession property suspected of being stolen
330. Tracing possession
331. Receiving or bringing in property dishonestly acquired outside the Republic
331A. Money laundering
FRAUDS BY TRUSTEES AND PERSONS IN A POSITION OF TRUST, AND FALSE ACCOUNTING
332. Trustees fraudulently disposing of trust property
333. Directors and officers of corporations or companies fraudulently appropriating property, or keeping fraudulent accounts or falsifying books or accounts
334. False statements by officials of companies
335. Fraudulent false accounting
336. False accounting by public officer
336A. Fraudulent trading by a company
Malicious Injuries to Property
OFFENCES CAUSING INJURY TO PROPERTY
338. Attempts to commit arson
339. Setting fire to crops and growing plants
340. Attempting to set fire to crops, etc.
341. Casting away ships
342. Attempts to cast away ships
343. Killing or injuring animals
344. (1) Punishment for malicious injuries in general
(2) In special cases: Destroying or damaging an inhabited house or a vessel with explosives
(3) River bank or wall, or navigation works, or bridges
(4) Wills and registers
(7) Other things of special value
(8) Deeds and records
345. Attempts to destroy property by explosives
346. Communicating infectious diseases to animals
347. Removing boundary marks with intent to defraud
348. Wilful damage, etc., to survey and boundary marks
349. Penalties for damage, etc., to railway works
350. Threats to burn, etc.
Forgery, Coining and Counterfeiting
351. Definition of forgery
353. Making a false document
354. Intent to defraud
PUNISHMENTS FOR FORGERY
355. Definition of currency note
356. General punishment for forgery
357. Forgery of wills, etc.
358. Forgery of judicial or official documents
359. Forgery, etc., of stamps
360. Uttering false document
361. Uttering cancelled or exhausted documents
362. Procuring execution of documents by false pretences
363. Obliterating crossings on cheques
364. Making documents without authority
365. Demanding property upon forged testamentary instruments
366. Importing or purchasing forged notes
367. Falsifying warrants for money payable under public authority
368. Falsification of register
369. Sending false certificate of marriage to Registrar
370. False statements for registers of births, deaths and marriages
OFFENCES RELATING TO COIN AND TO BANK AND CURRENCY NOTES
372. Counterfeiting coin
373. Preparations for coining
374. Making or having in possession paper or implements for forgery
376. Melting down of currency
377. Impounding and destruction of counterfeit coin
378. Possession of clippings
379. Uttering counterfeit coin
380. Repeated uttering
381. Uttering metal or coin not current as coin
382. Selling articles bearing designs in imitation of currency
383. Exporting counterfeit coin
385. Possession of die used for purpose of making stamps
386. Paper and dies for postage stamps
387. Trade mark defined
388. Counterfeiting trade marks misdemeanor
389. Personation in general
390. Falsely acknowledging deeds, recognizances, etc.
391. Personation of a person named in a certificate
392. Lending, etc., certificate for personation
393. Personation of person named in a testimonial of character
394. Lending, etc., testimonial for personation
SECRET COMMISSIONS AND CORRUPT PRACTICES
396. Corrupt practices
397. Secret commission on Government contracts
398. Presumption as to corrupt practices
399. Consent of Director of Public Prosecutions to prosecution
Attempts and Conspiracies to commit Crimes, and Accessories after the fact
400. Attempt defined
401. Attempts to commit offences
402. Punishment of attempts to commit certain felonies
403. Neglect to prevent felony
404. Conspiracy to commit felony
405. Conspiracy to commit misdemeanor
406. Other conspiracies
ACCESSORIES AFTER THE FACT
407. Definition of accessories after the fact
408. Punishment of accessories after the fact to felonies
409. Punishment of accessories after the fact to misdemeanors
22 of 1929
18 of 1934
8 of 1935
18 of 1936
3 of 1937
13 of 1937
16 of 1939
3 of 1945
8 of 1947
19 of 1949
31 of 1951
13 of 1952
6 of 1953
28 of 1953
43 of 1953
12 of 1954
38 of 1954
1 of 1955
39 of 1955
23 of 1955(F)
22 of 1956
15 of 1957
32 of 1958
40 of 1958
3 of 1959
16 of 1960
28 of 1964(N)
24 of 1965
53 of 1965
61 of 1965
10 of 1967
32 of 1967
37 of 1967
45 of 1967
5 of 1969
32 of 1969
23 of 1970
44 of 1970
11 of 1973
20 of 1973
5 of 1976
6 of 1987
11 of 1989
19 of 1992
12 of 1993
32 of 1993
17 of 1994
21 of 1995
21 of 1996
8 of 1999
1 of 2011
24 of 2012
An Act to establish a Code of Criminal Law
[1ST APRIL, 1930]
This Act may be cited as “The Penal Code” and hereinafter referred to as “this Code".
(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 Malawi or the Malawi 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.
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.
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;
“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;
“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;
“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
(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;
(iii) all persons employed in the Defence Force of Malawi or Police Service of the Republic;
(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, insofar 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 Local Authority or of any board, Council, society or other authority, whether incorporated or otherwise, established by or under any Act, other than the Companies Act;
(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;
(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 Malawi 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;
“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.
“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.
TERRITORIAL APPLICATION OF THIS CODE
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) Any Malawi citizen being a person employed in the public service of Malawi who commits, in any other country, when acting or purporting to act in the course of his employment, any offence which, if committed in Malawi, would be punishable in Malawi, shall be guilty of an offence of the same nature, and subject to the same punishment, as if the offence had been committed in Malawi.
(2) A person may be proceeded against, charged, tried and punished for an offence against this section in any place in Malawi 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.
GENERAL RULES AS TO CRIMINAL RESPONSIBILITY
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.
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.
(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) 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.
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.
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) 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
(c) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
(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) 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.
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.
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 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.
Subject to any express provisions in this Code or any other law in operation in Malawi, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of common law.
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.
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.
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.
PARTIES TO OFFENCES
(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.
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.
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.
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.
The following punishments may be inflicted by a court—
(e) finding security to keep the peace and be of good behaviour; or to come up for sentence;
(f) liability to police supervision;
(h) suspended sentence;
(i) public work;
(j) community service;
(l) weekend or public holiday;
(m) attendance centre orders;
(n) any other punishment provided by this Code or by any other written law.
(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.
(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.
(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.
[Repealed by 1 of 2011].
(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) on an application made before it by or on behalf of the convicted 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 slated 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) 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
(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:
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—
Not exceeding K1,000
Exceeding K1,000 but not exceeding K5,000
Exceeding K5,000 but not exceeding K10,000
Exceeding K10,000 but not exceeding K20,000
(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).
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) 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.
(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) 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.
(2) A person shall not be precluded from instituting civil proceedings but the court shall take cognizance of the earlier compensation awarded in criminal proceedings under subsection (1);
(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.
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.
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.
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.
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.
[Repealed by 5 of 1969].
Offences Against Public Order
TREASON AND OTHER OFFENCES AGAINST THE GOVERNMENT'S AUTHORITY
(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.
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.
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.
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 Malawi or the Malawi 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.
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 Malawi or any police officer, shall be guilty of a misdemeanor.
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 Malawi, or any police officer, shall be guilty of an offence and shall be liable to imprisonment for life.
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.
For the purposes of the four next following sections of this Code—
(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.
[Repealed by 24 of 2012]
(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.
(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.
(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.
(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.
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