Harmonisation of laws relating to children

Malawi

Prepared by Danwood Mzikenge Chirwa

The African Child Policy Forum

PO Box 1179, Addis Ababa, Ethiopia

Tel: +251 (0)116 62 81 92/ 96/ 97

Fax: +251 (0)116 62 82 00

www.africanchildforum.org

www.africanchild.info

Table of contents

Acronyms 3

Acknowledgements 4

Executive summary 5

Introduction 6

Country status 6

Legislative reforms and developments 6

Emerging issues 9

Relevance of international law to domestic courts and reporting 9

Definition of the child 11

Marriage 11

Criminal capacity 12

Age of sexual consent 13

Contractual capacity or capacity to own or dispose of property 14

Custody and maintenance 14

Age of employment 14

Other legal minimum ages 15

General principles relating to the rights of the child 16

Respect of the views of the child 19

Best interests of the child 21

Civil rights and political freedoms 22

Birth registration and nationality 22

Torture or other cruel, inhuman or degrading treatment or punishment 23

Family environment and alternative care 24

Parental guidance, welfare services and alternative care 24

Maintenance 26

Domestic and inter-country adoptions 28

Domestic violence and ill treatment and abuse 29

Economic, social and cultural rights 30

Health 31

Children with disabilities 34

Education 35

Leisure and cultural activities 37

Special protection measures 38

Refugee and asylum seeking children 38

Children in armed conflict 38

Child labour 39

Sexual exploitation and child trafficking 39

Juvenile justice 40

Conclusions and recommendations 42

Bibliography 48

Appendix: About the author 52

Acronyms

ACRWC African Charter on the Rights and Welfare of the Child

AIDS Acquired Immune Deficiency Syndrome

CRC Convention on the Rights of the Child

HIV Human Immunodeficiency Virus

ILO International Labour Organisation

NAC National Aids Commission

MACOHA Malawi Council for the Handicapped

MRSP Malawi Poverty Reduction Strategy Paper

UDF United Democratic Front

UNDP United Nations Development Programme

UNHCR United Nations Commission on Human Rights

UNICEF United Nations Children’s Fund

Acknowledgements

I am greatly indebted to the following people for the help they extended to me in collecting research materials that formed the basis of this report. Without their hand, the production of this report would not have been possible. They are Federica Dell’amico of UNICEF (Malawi), Shepher Mumba of Golden & Law (Malawi) and Redson Kapindu of the Malawi Human Rights Commission. I am also indebted to Madalitso Mmeta, an LLM student at the University of Cape Town for his outstanding research assistance.

Executive summary

The main purpose of this report is to document the extent to which Malawi has implemented the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, through an examination of state policies and legislative measures taken to implement these treaties. It demonstrates that the advent of democracy in Malawi has expanded opportunities for enhancing the protection of children’s rights in the country. The government has established a ministry dedicated to women and children affairs and implemented a broad range of policies aimed at realising these rights. Among other things, the government adopted the Youth Council Act in 1996, which articulates a framework for registering and regulation of youth organisations and the promotion, coordination and implementation of youth development programmes in the country. The government has implemented the free primary school education policy quite successfully and child participation in national development and socio-economic activities has been encouraged through many forums including the youth parliament.

Significantly, the government, through the Malawi Law Commission, has initiated various law reform programmes aimed at giving effect to human rights. Law reforms concerning criminal justice, employment, succession, and women’s rights will no doubt improve the enjoyment of children’s rights in the country. More importantly, the report demonstrates that the review of child-related laws as currently reflected in the Child (Justice, Care and Protection) Bill constitutes the most far reaching law reform initiative in the country addressing children’ rights directly and comprehensively. It is critical that the government gives priority to the conclusion of this bill.

A part from highlighting positive elements in the measures taken by the government, this report also identifies a range of areas of concern. For example, it highlights that the constitution is not very comprehensive in its protection of the rights of the child. Malawian lawyers and courts have also not used international law effectively to enhance the protection of human rights in the country and the government has routinely failed to meet its reporting obligations to international and regional human rights monitoring bodies. Significantly, although the government has embarked on a number of law reform initiatives that seek to redress a vast array of human rights issues concerning children, it has restricted these reforms to civil and political rights and not socio-economic rights. This report shows that most of the child rights concerns in the country are closely linked to poverty and lack of the implementation of socioeconomic rights. It is therefore important that equal attention is given to the implementation of both sets of these rights.

A number of specific and general recommendations regarding the measures needed to improve compliance with international treaties on the rights of the child in the country are made at the end of the report.

Introduction

Malawi is a small country situated in southern Africa. It is one of the poorest countries in the world with an estimated population of 12.3 million people.[1] In 2005, the country had a human development index ranking of 165 out of 177 countries.[2] Malawi’s economy has for the past decade been stagnant, relying heavily on agriculture, which contributes about 36% to the country’s GDP and 80% to its exports.[3] The country depends heavily on foreign aid and has in the past five years struggled with famine.

Malawi is a party to both the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACWRC), having ratified both instruments on 2 January 1991 and 10 September 1999 respectively. Both these instruments impose two general obligations on states. These are to adopt legislation and to formulate and implement other measures to realise children’s rights.

The general objective of this report is to document the extent to which Malawi has harmonised all laws, policies and programmes relating to children in the country in line with the provisions of the CRC and the African Children’s Charter. Consideration will be given to both existing and planed mechanisms and measures for giving effect to these rights. Strengths and weaknesses in government’s efforts in implementing children’s rights will be identified and recommendations for improvement will be made.

Country status

Legislative reforms and developments

As is clear from the introduction, Malawi adopted the CRC during the dictatorial era led by Dr Kamuzu Banda. This period lasted 30 years and human rights were not given constitutional protection.[4] Silence ruled in the country. As a result, gross human rights violations were committed by the Banda regime with impunity and without attracting responsibility.[5] Thus, the ratification of the CRC was not intended to show serious commitment to implementing children’s rights in the country. Rather, it was a mere public relations exercise.

The end of the dictatorial regime and the advent of a multiparty system of government in 1993 signalled the beginning of a brighter future in the country. A new constitution was adopted provisionally in 1994 containing a broad range of justiciable human rights.[6] The rights recognised included civil and political rights, a number of socio-economic rights and the right to development. Significantly, limited specific provisions were included to protect the rights of children and women.[7] The constitution was confirmed in 1995.

The coming into force of the new constitution meant that the State had the onerous obligation of reviewing all laws enacted during the 30-year dictatorial rule and during colonialism. As will be shown below, most of these rules had repressive elements and were discriminatory against women and children.

The new administration installed in 1994 created a specific ministry to deal with women and children affairs – now called the Ministry of Gender, Children Affairs and Community Services. The Ministry is responsible for formulating policies and implementing legislation concerning women and children. A Child Unit was established within the Human Rights Commission to monitor the implementation of children’s rights.

The constitution established the Malawi Law Commission to spearhead law reform in the new era in accordance with the Bill of Rights and applicable international law.[8] The Commission has played a significant role in initiating policy reforms in diverse fields in the country. The first Act to be adopted concerning children in the country was the National Youth Council Act 1996. Otherwise, most of the attention in the early days of democracy in the country focussed on reforming employment laws and the criminal justice system. The Labour Relations Act was adopted in 1996 while the Employment Act was adopted in 2000. In the criminal justice field, reforms targeted the Penal Code, the Criminal Procedure and Evidence Code, the Courts Act, the Children and Young persons Act, the Probation of Offenders Act, the Dangerous drugs Act, and the Road Traffic Act. At the beginning of the new millennium, attention shifted to reforming legislation concerning women. Here, the focus has been on reforming the Wills and Inheritance Act, the Administrator General’s Act, and the Estate Duty Act. When completed, these reforms will affect the enjoyment of children’s rights in the country in many ways.

It is in 2001 that a Special Law Commission was appointed to reform all laws relating to children. The Commission undertook a systematic review of the Children and Young Persons Act with regard to matters relating to juvenile justice as well as childcare and protection. Regard was also had to other relevant pieces of legislation such as the Adoption Act and the Affiliation Act. The end product was a comprehensive report with an annexed bill called the Child (Justice, Care and Protection) Bill. This is a comprehensive Bill to bring all matters relating to child justice, care and protection under one Act.

These law reform initiatives must be commended. The need to transform the Malawian legal system from one based on repression to that based on human rights and democratic principles is self-evident. However, it must be pointed out that the pace at which these reforms have proceeded is unbearably slow. Most of the law reform projects mentioned above have not been completed. It is to be expected that those concerning children will take much longer to be completed because it is likely that earlier initiatives would have to be completed first. While lack of resources and capacity are obvious reasons for the slow progress, power struggles among political leaders in the country have diverted the country from pursuing matters of national interest. Between 2004 and 2005, for example, Parliament was preoccupied with political debates and wrangles, thereby neglecting its primary law making function. Before then, the previous government was preoccupied with efforts to amend the constitution to allow the former president to stand for a third term of office. Unless Malawian leaders regain their focus and learn to place national interests before personal ambitions, reforming the Malawian legal system including child-related laws will remain a distant goal.

It must also be pointed out that the constitution is undergoing a review. No legislative framework has been established to govern the review process. However, there seems to be a general consensus in the country that a review of the constitution after a decade of its existence is justified to clarify certain issues that have raised controversy over the past 10 years. A national conference on the review of the constitution is expected to be held in 2006. It presents an opportunity for strengthening the child rights clause in the Bill of Rights.

Emerging issues

Relevance of international law to domestic courts and reporting

Obligations

International law is relevant in Malawi in two ways.[9] It can be used both as a source of law and for interpreting provisions of the constitution. In order for international treaties to form part of Malawian law, ratification through Parliament is required.[10] In other words, an international treaty can be invoked in a court of law only if it has been domesticated through an Act of Parliament. This rule applies in respect of all treaties entered into after the constitution took effect. It means that the ACRWC cannot be enforced by Malawian courts because it has not yet been incorporated into Malawian law through an Act of Parliament.

As regards to treaties entered into before the constitution became operational, a different rule applies. Section 211(2) of the constitution provides that ‘[b]inding international agreements entered into before the commencement of the constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament’. It could be argued that the international agreements intended to have continued binding effect on Malawian courts are only those that were incorporated into Malawian law through a legislative process. This strict interpretation would mean that the CRC, ratified on 2 January 1991 would not bind Malawian courts because this treaty has not yet been given domestic effect through an Act of Parliament. The trouble with this interpretation is that the constitution does not make any specific provision for the application of treaties ratified before 1994 but not domesticated by legislation. The result would therefore be anomalous because these treaties may not form part of Malawian law. The correct interpretation of section 211(2) of the constitution would seem to be that all treaties that were binding on the country in international law irrespective of incorporation into domestic law at the date the constitution came into force form part of Malawian law.[11] This interpretation would mean that the CRC forms part of Malawian law and can be invoked in courts of law.

Malawian courts are also enjoined to have regard to international law when interpreting constitutional provisions.[12] What is interesting about this provision is that courts may look at all sorts of international law including binding and non-binding sources for inspiration.

Clearly, therefore, the Malawian legal system places considerable weight on international law. This is a commendable position given the country’s history of oppression, which resulted in the distrust in domestic laws and the dearth of local human rights jurisprudence.

However, the opportunity presented by these provisions has rarely been explored by litigants in Malawian courts. Recourse to international in Malawian courts is scarce as can be discerned from courts judgments and pleadings. There has also been a marked dearth of litigation concerning children’s rights. It has been argued that lack of exposure to international law by judges and legal practitioners in the country is a key reason for the failure to use international law effectively in human rights litigation.[13] The absence of research-based child rights and public interest litigation NGOs in the country has also contributed to this problem.