Contact Person: Boniface Mandere

PROPOSAL

On

Building National Response for the chiefs in the fight against Child Marriages and end violence against women and children and harmful cultural practices

Submitted by

Boniface Mandere

Contact Person: Boniface Mandere

Article iii

List of Acronyms

VACViolence against Children

GBVGender Based Violence

UNUnited Nations

NSONational statistical Office

GDIGender Development Index

UNDPUnited Nations Development Programme

UNFPAUnited Nations Population Fund

HIVHuman Immunodeficiency Virus

Introduction

Article iii group, is local child rights non-governmental organization whose activities are based on the Convention on the rights of Child (CRC) article iii, “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ” The organization works in conformity with the provisions of the Malawi laws and the Constitution. Article iii group was established in 2014 and registered with the Malawi Government in 2016 under the trustee’s incorporation Act (1962). It is an active registered member of the Council for non-governmental organizations in Malawi.

Article iii envisions a society where by all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, hinge on the principle of the best interest of the child. Our mission is commitment to ensuring that the protection and participation rights of children are realized. We work within an advocacy framework towards the realization of a prevention-oriented child protection system, gender equality and children’s participation in all decisions affecting their lives.Our work is strengthened by strategic partnerships with line government Ministries of Gender, Children, Disability and Social Welfare; Ministry of Education; Ministry of Labour; Ministry of Justice; and Ministry of Home Affairs and Internal Security. We also partner with other non-governmental organizations working in the area of child rights. Furthermore our work ensures that there is child participation at all levels. We respect diversity, dignity and the equality of all people, and provide resources to support the testing of professional, high quality, evidence-informed programmes.

Article iii has in the past implemented activities aimed at fighting violence against women and children in the country. Some of these activities included; training of chiefs in human rights and gender, facilitation of the development of chiefs’ plans to end child marriages, and facilitate the development of chief’s bylaws to end harmful practices that fuel child marriages. This was conducted within the framework of Chiefs’ Declaration of commitments. The activities so far have yielded positive results, however, there is a need to build capacity, skills and legal literacy of chiefs to effectively enhance their ability to fight Gender Based Violence (GBV) and Violence Against Children (VAC) with the final aim of promoting behaviour change and transform social norms.

The conceptualization of the current concept is within the ambit of the Sustainable Development Goals (SDGs). For instance goal no.3 of ensure healthy lives and promote well-being for all at all ages is on all fours with fighting against GBV and VAC. Moreover, goal no. 4 ensures inclusive and equitable quality education and promotes life-long learning opportunities for all and finally goal no.5 strives toachieve gender equality and empower all women and girls. The project is therefore relevant with the prevailing development framework.

The Chiefs Act recognizes the office of a Paramount Chief, a Senior Chief, a Chief, a Sub–Chief, a Group Village Headman, and a Village Headman, Section 7 of the Chiefs Act provides for the functions of Chiefs and states they shall too preserve the public peace; carry out the traditional functions under customary law which are in conformity with the Constitution or an Act of Parliament principles of natural justice or morality; assist in collection of tax; and assist in general administration and management of a district, This provides the opportunity for the implementation of bylaws and activities that will change the social norms and end harmful cultural practices.

Chiefs in Malawi wield considerable amounts of authority and legitimacy. The recent development in Malawi where chiefs issue bye–laws has mostly emanated from the commitment they made during the high level conference and following the commitment they made to end harmful cultural practices, child marriage and violence against women and children, the Constitution recognizes customary law and it allows chiefs to enforce customary law as long as the customary law does not violate the Constitution itself, any Act of Parliament, and with due to the authority and legitimacy chiefs have in the community.

The re-introduction of the local government system in Malawi led by the adoption of the Decentralization Policy and the eventual enactment of the Local Government Act in 1998, underscored the importance of traditional leaders, among other local players, in the country’s governance system. In Malawi, traditional leaders such as Paramount Chiefs, Senior Chiefs and full Traditional Authorities (TAs) are part of the membership of the local council. Thus this means that apart from the traditional authority conferred upon them by way of tradition, chiefs also derive their powers from the formal local government system. The Local Government Act, the Chief’s Act and the Constitution of the Republic of Malawi provide that chiefs are also supposed to play an advisory role to the Area Development Committees (ADCs) and Village Development Committees (VDCs). The country’s local government system further gives leverage to the traditional leaders to formulate by-laws in the execution of matters of national law and policy.

It is in line of the foregoing that Article iii seeks to develop a comprehensive program that will promote the involvement of chiefs not as mere participants in the fight against GBV and VAC (including child marriages) but as key stakeholders with adequate skills and knowledge to identify and address these cases in collaboration with other key players at local level. This will be achieved by building on the best practices enumerated so far and also adopting a cross fertilization approach of customary and statutory legal frameworks.

The situation analysis on Violence againstWomen and Children in Malawi

Gender Based Violence (GBV) refers to any act of violence, in public or private, which results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts and the coercion or arbitrary deprivation of liberty (UN, 1995). In Malawi 40% of women have ever experienced sexual violence, 30% of women have ever experienced physical violence and 44% have ever experienced psychological violence (UN Women, 2013). Globally, Malawi ranks 129 out of 140 countries under the UNDP’s Gender Development Index (GDI), with a GDI of 0.396. GBV is culturally condoned, leading women to accept it as normal. For instance, 35.7% of all women in Malawi (38.2% in rural & 22.4% in urban) find it acceptable to be beaten by their husbands (NSO, 2004). Thus GVB incidences are rampant in Malawi. This acceptance is in line with men’s role of “disciplining” and “correcting” their wives through beatings if they do not fulfil their roles as expected. However, such gender perceptions portray women to be inferior to men resulting in many women being subjected to domestic violence and other social ills.

The situation for young girls is even worse; girls in Malawi face many challenges that prevent them from realizing and exercising their full rights and potentials. Some of the challenges include early and forced marriages, low literacy, gender based violence, HIV and AIDS, low access to sexual and reproductive health services.

Malawi has one of the worst child marriage rates in the world with 49% of all Malawian girls getting married before the age of 18 (UNFPA). The situation is worse in rural areas. The Ministry of Education EMIS (Education Management Information Statistics) show that between 2010 and 2016, 27,612 girls in primary and 4,053 girls in secondary schools dropped out due to marriage. During the same period, another 14,051 primary school girls and 5,597 secondary school girls dropped out because they were pregnant. This status quo perpetuates the poor literacy standing where literacy rate for men is 74%; for women it is 57%.

Protecting children from violence is now central to the development agenda for Malawi. The Malawi Growth and Development Strategy (MGDS) II (2011-2016), has child development and protection as a major theme for promoting social development. The 2013 Violence against Children Study (VACS) Report indicates that 20% and 15% of girls and boys respectively were sexually abused. The study further indicates that 40% of girls and 64% of boys were physically abused. It is saddening to note that only 61% of girls and 65% of boys who were sexually abused were able to tell someone about their experience. Even more shocking is the fact that only 9% and 6% of girls and boys respectively who experienced sexual abuse received the requisite services.

Justification for the engaging traditional leaders to end child marriages in Malawi

In Malawi, violence against women and children is widespread and data shows that there is not a proper reduction on its incidence, despite several efforts has been put in place to address it and several legislation and policies have been developed. Largely, this has been due to the patriarchal nature of the country’s socio-cultural fabric. Women and children have been abused in different forms and have not been provided with an effective protection system. This scenario is in spite of a number of laws and policies enacted and adopted by Malawi to deal with violence. Violence against women such as property grabbing and harmful cultural practices remains rife in Malawi, especially in the rural areas. Girls and boys, in much of rural Malawi, continue to be victims of child marriages.

Access to Justice for GBV and VAC survivors

Any human rights abuse requires a redress mechanism and such a mechanism hinges on the access to justice. Access to justice has three components: firstly Normative protections (the existence of a remedy), through laws and law reform, legal and regulatory frameworks, and customary norms; secondly Legal empowerment (the capacity to seek a legal remedy); and finally Institutions and mechanisms, both formal and informal, so there is the capacity to provide an effective remedy.

Access to justice and Legal Pluralism

The talk of ‘access to justice’ has become commonplace in Malawi, and there has been an outcry that our formal justice system is inaccessible to the rural masses. On the other hand the informal justice mechanisms have often been hailed as the most accessible method by which many people, particularly women access justice. An example of this view can be seen from the following report of the Acting Resident of Nkhotakota (a white man) in 1921:

“An enormous number of Civil Cases are concluded by the village headmen. I do little to prevent such decision-making in the “Bwalo”. I am actually convinced that there is more justice to be found than is possible in my court. One may take, for example, cases of adultery. Usually a man comes and alleges that his wife confessed to have committed adultery with Mr. X, while Mr. X denies this. Now the natives have a belief to the effect that a woman “never lies” when it is a question of whether she committed adultery or not. When I due to lack of material evidence, reject the case…then all the listeners look at my decision with complete disapproval. They quickly find an opportunity to make me understand that the number of adulteries has increased in quite surprising degree. I then conclude that it is the consequence of my weakness. It would violate all rules of English justice and common sense…if I sentenced the named adulterer in such a case. If such a case, however, is dealt with in the “bwalo,” the whole village deals with the case. Every detail is known, and here the belief that a woman cannot make such an accusation without reason is probably correct. Thus she will have realized that it is beyond her strength to deceive the whole village, whereas it is relatively easy for her to assert something to a European, who must obtain every bit of information through questions, and to whom the mentality of the woman …in the case is a book with empty pages.”[1] (Emphasis supplied)

Evidence is abound that many women turn to non-state mechanisms inter alia because of the emotional and financial costs of seeking state assistance, the risk of secondary victimization at the hands of criminal justice practitioners. Many women are also dissatisfied with the outcomes of formal legal remedies because they fail to provide a sense of justice.[2]Indeed,informal justice structures are used by many women for dealing with for instance domestic violence. This is largely because their services easily meet the needs of women than the criminal justice system, in terms of the immediacy with which they resolve problems, their focus on mediation and reconciliation rather than arrest and punishment, and their affordability. Thus for resolving domestic conflicts, alternative justice mechanisms seem to have much more legitimacy for those involved than the formal justice process. Thus chiefs are very central to people lives and that for women they constitute the next point of departure after the family in relation to Justice Delivery (WLSA, 1999). Therefore the Chiefs Bwalo (court) continues to be as relevant today.

Help-Seeking Behavior by Women Who Experience Violence

Roughly one in three women (36%) who experience physical or sexual violence never tell anyone about it, and nearly half never seek help (48%). Women who experience only sexual violence are less likely than women who experience physical violence to seek help. Help-seeking behaviour varies relatively little by age or employment status. Women with no living children are somewhat more likely to have sought help than women with at least one living child. 50% of currently married women have never sought help compared with 45% of never-married women and 44% of women who are divorced, widowed, or separated.

Women with no education are less likely than women who have been to school to have ever told anyone about the violence or to have sought help. There is no strong relationship between help seeking and wealth. Among women who sought help for the violence, most of them sought help from their own family and in-laws (17% and 18%, respectively). 4% each sought help from friends or neighbours and the police, while 3 percent sought help from a traditional authority or chief, and less than 1% sought help from a religious leader.

The role of chiefs in Malawi in the fight against GBV and VAC

Chiefs in Malawi are custodians of culture (patriarchy) and hence key stakeholders in influencing the promotion and protection of human rights and human dignity, specifically combating Violence againstWomen and Children in their societies. It has been observed that chiefs have both a strong moral influence and unique networks to reach people. More importantly, as guardians of culture, chiefs are best placed to guide and influence their communities in the fight against GBV and VAC.[3]The intervention in this NAP on GBV seeks to facilitate development of a new paradigm in which women and children are protected in society. This can be achieved by strengthening the capacity of chiefs to address issues of GBV and VAC in their communities. This is feasible considering the enabling legal environment as analysed in below. Our entry point is that Paramount and Senior Chiefs in Malawi through the Declaration of Commitment made on October 30, 2013 in Lilongwe undertook to:

a)Take urgent action to address the high rates of HIV infection among girls and young women

b)Remove all barriers to young women and girls’ access to education, including provision of boarding hostels and appropriate sanitary facilities and to ensure that schools and the general environment are safe and girls are protected from sexual exploitation

c)Remove all barriers to comprehensive sexuality education and ensure that access to quality health services is provided for young people in particular, including young women living with HIV

d)Immediately outlaw civil and traditional statutes that promote early marriages within their communities and jurisdictions, and lobby parliament to raise the marriage age to 21 years

e)Committed to zero tolerance towards gender based violence, especially violence against women and girls

f)Scale up engagement of men and boys in programmes related to promotion of sexual and reproductive health and rights, HIV and gender equality

g)Harness positive elements of culture and use the opportunities of cultural ceremonies to promote sexual and reproductive health and rights, HIV and gender equality