Summary: A compilation of extracts featuring child-rights issues from the reports submitted to the first Universal Periodic Review. There are extracts from the 'National Report', the 'Compilation of UN Information' and the 'Summary of Stakeholder's Information'. Also included is the final report and the list of accepted and rejected recommendations.
Malawi - 9th Session - 2010
1st November - 3pm to 6pm
5. In 2009, CRC urged Malawi to establish the definition of the child in accordance with the Convention16 and to ensure integration of the principle of the best interest of the child in the Constitution. It further recommended that Malawi continue and strengthen its efforts to ensure that this principle is appropriately integrated into all legal provisions, judicial and administrative decisions, as well as projects, programmes and services.
8. In 2009, CRC welcomed the adoption of the National Plan of Action for Orphans and Other Vulnerable Children (2005-2009). While noting that a comprehensive National Action Plan for Children (NAPC) has been drafted, CRC regretted that it had not yet been finalized and that there was no comprehensive Children’s Policy. CRC encouraged Malawi to finalize the NACP and recommended that a specific budget provision be made for its implementation and that an evaluation and monitoring mechanism be established to regularly assess progress achieved and identify any deficiencies.
9. Concerned that Malawi often delegates responsibilities and duties relating to the provision of programmes and services for children to the civil society, CRC recommended that Malawi exercise its responsibilities in cooperation with the civil society, rather than delegate them thereto.
10. In 2005, Malawi adopted the Plan of Action for the first phase (2005-2009) of the World Programme for Human Rights Education with a focus on the national school system. The Malawi Human Rights Commission took concrete steps to implement human rights education and training programmes, in keeping with its current strategic plan (2006-2010) which includes, among its goals, enabling the people of Malawi – vulnerable groups in particular – to know, understand and freely exercise their human rights through human rights education and training.
15. In 2009, CRC remained concerned that de facto societal discrimination persisted against girls and vulnerable groups, including children with disabilities and orphans, and urged Malawi to strengthen its efforts to eradicate discriminatory laws.
16. The United Nations Development Assistance Framework (UNDAF) Malawi (2008-2011) indicated that girls and women continue to face severe discrimination, and suffer the effects of poverty more than boys and men.
21. In 2010, the ILO Committee of Experts on the Application of Conventions and Recommendations (ILO Committee of Experts) noted that a process for the development of legislation on trafficking had been initiated and expressed the hope that the new law would ensure that children are protected from trafficking for any reason, including economic and sexual exploitation. In 2010, CEDAW reiterated its concern about the scope of trafficking and the extent to which girls and women are involved in sexual exploitation, including prostitution, and the limited statistical data relating to these issues. It recommended, inter alia, that Malawi take the necessary legislative measures, including the effective prosecution and punishment of traffickers. CRC had expressed similar concerns in 2009.
22. In 2005, the Special Rapporteurs on the sale of children and trafficking in persons sent a joint communication regarding the alleged failure to adequately suppress and punish the trafficking of boys, sometimes as young as 9 years old, from Malawi into neighbouring countries, where they are economically exploited. The Government replied that it had forwarded the concerns transmitted to the appropriate authorities, and that it remained committed to fighting trafficking and child labour.
23. The ILO Committee of Experts also noted that while the use, procurement or offering of persons under 18 years of age for the purposes of prostitution or pornography appeared to exist in Malawi, national legislation did not seem to prohibit this worst form of child labour. It urged Malawi to take measures, as a matter of urgency, to adopt national legislation in that regard.
24. In 2009, CRC was concerned about the lack of data on the number of children involved in sexual exploitation, and the lack of reporting mechanisms available to victims, as well as the absence of awareness campaigns on the issue. It therefore recommended that Malawi develop and strengthen appropriate legislative measures to address the issue of sexual abuse and exploitation, and take appropriate measures to ensure prompt prosecution of perpetrators.
25. CRC also regretted that violence against children persisted, and urged Malawi to actively implement existing legislation and strategies to ensure that perpetrators are brought to justice.57 CRC urged Malawi to explicitly prohibit corporal punishment in all settings, by law, and that it intensify its awareness campaigns to promote the use of alternative forms of discipline, in a manner consistent with the child’s human dignity .
26. UNDAF Malawi (2008-2011) indicated that school environments in Malawi are generally unsafe, with cases of bullying, gender-based violence and abuse, and corporal punishment still frequently reported. Many cases also go unreported.
27. CRC reiterated its concern about the increasing number of children living in the streets and the ongoing lack of specific policies and programmes to address the situation and assure their rights to, in particular, adequate housing, health care, nutrition and education. CRC was also concerned that some street children who need care and attention were accommodated in reformatory institutions intended for children in conflict with the law. In that respect, CRC recommended that Malawi take urgent measures to remove street children from reformatory institutions, and provide all street children with adequate housing, nutrition, health care and educational opportunities. Furthermore, it recommended that street children be provided with appropriate recovery assistance, that social integration within their families and communities be promoted and that a study be undertaken on the scope and causes of the phenomenon of children living in the streets.
28. In 2009, CRC remained concerned that the minimum age of criminal responsibility was far too low (7 years of age) and that the new legislation proposed an increase to 10 years, which is still too low. CRC was also concerned at the increasing rate of crime perpetrated by children, and the practice of detention “at the pleasure of the President.”62 It recommended as a matter of urgency that Malawi raise the age of criminal responsibility. CRC also recommended, among other things, that Malawi implement alternative measures to deprivation of liberty, ensure that children in conflict with the law have access to free legal assistance and to an independent and effective complaints mechanism, and provide training on the Convention to all professionals working in the juvenile justice system.
30. In 2009, CRC expressed concern that the National Registration Bill had not yet passed into law and that many children were still without proper proof of age and at risk of exploitation and abuse. CRC recommended that Malawi expedite the enactment of the bill as a matter of priority, and urged it to ensure the allocation of adequate financial, human and other resources to registration offices, as well as take measures to ensure that the population, particularly those in rural areas, have access to the registration offices.
35. In 2010, the ILO Committee of Experts reiterated serious concerns regarding the considerable number of children under 14 years of age working in Malawi. It noted that HIV/AIDS had orphaned many children and that there was an increased risk of those orphans being engaged in child labour.71 The ILO Committee of Experts noted information received that 52.6 per cent of child labourers were often self-employed in the commercial agricultural sector. It urged Malawi to take the necessary measures to ensure that no person under 14 years of age is admitted to employment or work, in accordance with national legislation, and that the Constitution should be amended to raise the minimum age of a person who could be engaged in work that is likely to be harmful to 18 years.
36. In 2009, CRC was concerned that, since education is not compulsory, a large number of children were working and that many children between the ages of 15 and 17 were engaged in work that is considered hazardous, especially in the tobacco and tea estate sectors. CRC urged Malawi, inter alia, to expedite the launch of the National Plan of Action to Support the Child Labour Policy and ensure its effective implementation.
38. In 2009, CRC noted the difficulty encountered by children and families living in poverty to access basic social services and recommended that Malawi develop a global strategy to address the issues of poverty, social security, nutrition and health. In particular, it recommended that Malawi seek assistance through international cooperation.
39. UNCT stated that the consequences of high levels of chronic malnutrition (stunting) characterized Malawi and affected nearly 50 per cent of children under 5 years of age.
40. CRC remained concerned about the state of health of children in Malawi, including the high level of malnutrition. It was deeply concerned about the limited access to and the poor quality of health-care facilities, and the critical shortage of health care personnel.
42. CRC recommended the adoption of an effective and gender-sensitive strategy of education and awareness-raising for the general public, with a view to reducing the incidence of teenage pregnancies.
43. UNAIDS estimated that 930,000 people (including children) in Malawi were living with HIV at the end of 2007.88 UNAIDS also estimated that in 2007, 555,000 children were orphaned due to AIDS (up from 240,000 in 2001); most of those children lack adequate care, food and educational opportunities which are factors that expose them to the risk of abuse (e.g. child labour and child trafficking) and increases their vulnerability to HIV. UNDAF considered that malnutrition was a significant obstacle to efforts to combat HIV. Indeed an estimated 25 to 50% of children admitted for nutrition rehabilitation are HIV positive.
46. In 2009, CRC expressed concern about the very low coverage of anti-retroviral treatment for the prevention of mother-to-child transmission and for children, the poor quality of the health-care system, the human capacity constraints of trained health-care workers and CEDAW was also deeply concerned that some traditional healers are prescribing sexual intercourse with girls as a panacea for HIV infection, and recommended that Malawi prosecute those who prescribe such practices.
47. In 2009, CRC also expressed concern at the practice of female genital mutilation (FGM) within some ethnic groups. CRC urged Malawi to, inter alia: (a) adopt legislative and other measures to prohibit harmful traditional practices affecting children; (b) ensure that legislation prohibiting harmful traditional practices provide for appropriate penal sanctions and that perpetrators of such acts are brought to justice; (c) strengthen awareness-raising and sensitization activities for practitioners, families, traditional or religious leaders and the general public by adopting a child rights approach.
49. A 2009 United Nations Statistical Division source indicated that in 2007, the total net enrolment ratio in primary education was 87.6 per cent.98 In 2008, UNCT stated that the primary school completion rate was 32 per cent, Malawi had the lowest attainment scores in the region, and teacher/ pupil ratios were very high. WFP indicated that the drop out rate was 16.1 per cent at the national level and that it was higher for girls than for boys. WFP stated that school-related costs, such as uniforms, as well as the high cost of sending children to school for households that depended on the income of working children, were the main causes for drop-outs, in addition to early marriage and pregnancy for girls. In 2009, CRC recommended that primary education be compulsory and free of direct and indirect costs.
50. CRC also remained concerned about ongoing gender and regional disparities, the low quality of education due, in particular, to the limited number of teachers and the high level of abuse and violence in schools. In 2010, CEDAW again expressed concern about obstacles to quality education for girls, and the persistence of sexual abuse and harassment in schools.
54. The 2008 Annual Report of the UN Resident Coordinator indicated that the country had made progress in most MDG indicators and that six of the goals were likely to be met by 2015. Malawi is one of a few developing countries projected to exceed the infant and child mortality targets by 2015.
57. In 2009, CRC noted with concern the difficulties encountered by a high number of families to meet their parental responsibilities due to extreme poverty, particularly in rural areas, the precarious situation of single-parent households, child and grandparent-headed households due to the impact of HIV/AIDS and the rather limited services available.
59. In 2009, given the persistent widespread poverty and the inadequacy of basic services, as well as the lack of a comprehensive social security system that would ensure access to essential services for all children, CRC recommended that Malawi seek technical assistance from, among others, UNICEF, the World Bank and ILO. With regard to the Committee’s concern about the right to education, it was recommended that Malawi seek technical assistance from UNICEF and UNESCO. Concerning economic exploitation of children, including child labour, CRC urged Malawi to seek technical assistance from ILO/IPEC and UNICEF. On the phenomenon of children living in the streets, CRC recommended that technical assistance be sought from, among others, UNICEF. In the context of juvenile justice, it was recommended that Malawi seek technical assistance and other cooperation from the United Nations Interagency Panel on Juvenile Justice, which includes UNODC, UNICEF, OHCHR and NGOs.
3. WVI recommended that Malawi ensure the swift adoption of the recommendations of the Constitutional Review process to establish the definition of the child in accordance with the Convention on the Rights of the Child.
5. WVI reported that, in the absence of a Comprehensive National Action Plan for Children (NAPC), no one national body had clear authority to and could be accountable for all child-related issues. Therefore it recommended that Malawi finalize the NAPC to ensure that resources are allocated directly toward child rights programs rather than be integrated in other policies.
6. WVI reported that Malawi had implemented the National Plan of Action for Orphans and other vulnerable children in order to improve access for them to education, health, nutrition, water sanitation, and birth registration. In addition an OVC Registration System was being implemented to identify and consider the situation of orphans and vulnerable children.
7. WVI recommended that Malawi strengthen its data collection systems concerning children and ensure that the information collected contains up-to-date, disaggregated data by sex, age and geographical areas on a wide-range of vulnerable groups.
13. WVI reported that there was a lack of comprehensive data on disabilities as well as a lack of institutions for children with disabilities with none catering specifically for mental illness in children. Work still needed to be made to eliminate discrimination on grounds of disability as the cultural mindset to reject such children remained deep rooted and prevalent.
18. WVI reported that, while the Penal Code (Amendment) Bill intended to enhance protection of children, especially the girl child, from sexual abuse, reported cases of sexual abuse and exploitation of women and children had continued to rise to unprecedented numbers posing challenges to the protection, well-being, survival and development of children. Inadequate financial, capital and human resources as well as a lack of trained counsellors hampered the implementation of this legislation.
19. Global Initiative to End All Corporal Punishment of Children (GIEACPC) indicated that corporal punishment was lawful at home. Corporal punishment was prohibited as a sentence for crime and as a disciplinary measure in penal institutions, as well as in schools and in alternative care settings under article 19 of the Constitution. However, there has been no specific legislation on this issue and corporal punishment was reportedly widely used in schools. The Revised Penal Code Bill and the Child (Care, Protection and Justice) Bill would explicitly prohibit judicial and disciplinary corporal punishment and in 2009, the government had recommended that the Education Act be revised to include explicit prohibition. GIEACPC recommended that Malawi enact and implement legislation to ensure complete prohibition of corporal punishment.
20. Joint submission 1 (JS 1) reported that children, mainly boys from nine years old from Malawi are recruited to work in agriculture in neighbouring countries and are economically exploited. JS1 added that legislation did not provide any provision for the criminalization and the prosecution of trafficking in boys and that the Penal Code only criminalized the abduction of girls under 16 years. As for the Trafficking Bill, it had not yet been approved by the Cabinet before its presentation to the Parliament for enactment. JS1 recommended Malawi to bridge the gap in the domestic legislation; to efficiently and duly investigate, prosecute and adjudicate trafficking, to provide adequate protection to victims; and to coordinate and cooperate with neighbouring countries to alleviate the factors of trafficking in human beings.
21. WVI made reference to incidents of trafficking of young girls for sexual exploitation.
27. WVI indicated that there existed no minimum age for marriage and that the State only had the capability to discourage rather than forbid a marriage, which explained occurrences of forced and early marriages .
35. WVI reported that, although the Employment Act effectively eliminated all forms of forced labour, abolished child labour, established 14 years as the minimum age for employment and eliminated discrimination in respect of employment, concerns remained with respect to children working in the agricultural sector.52 WVI added that Malawi was working to prevent child labour through proposing the Child (Justice, Care and Protection) Bill as well as training monitoring committees and inspectors. However, the committees were challenged by inadequate resources, lack of cooperation from parents or guardians and those suspected to have employed children. Poverty among most people was the contributing factor towards an increase in economic exploitation of children.
37. WVI reported that as a result of low family income food insecurity and high malnutrition existed and that the nutritional status of children in Malawi was not substantially improving.
40. JS1 reported that HIV and AIDS exacerbated the number of orphans living in harsh living condition without suitable protection from the Government. The infected and affected persons, including children, had limited access to antiretroviral drugs and did not have a proper diet.
45. CANHIVAIDS-LN indicated that articles 43, 44 and 45 of the HIV Bill criminalize exposure to, or transmission of, HIV. CANHIVAIDS-LN was of the opinion that, while the criminal law provisions in the HIV Bill may had been driven by a well-intentioned wish to protect women and to respond to serious concerns about the ongoing rapid spread of HIV in Malawi, applying criminal law to HIV exposure or transmission did nothing to address the epidemic of gender-based violence or the deep economic, social, and political inequalities that were at the root of women’s and girls’ disproportionate vulnerability to HIV. CANHIVAIDS-LN recommended Malawi to remove the provisions in the HIV Bill which broadly criminalize exposure to, or transmission of, HIV.
49. JS1 reported that free primary education was introduced in 1994 but had not yet been made compulsory. It also indicated that primary education was affected by demographic pressure, a high prevalence of HIV/AIDS, striking poverty, and very low human and social development.75 JS1 recommended that Malawi make primary education compulsory; include human rights and children’s rights in school curricula, and promote and strengthen vocational education and training opportunities to mitigate the high dropout effects.
50. JS1 reported that the high dropout rate, particularly among the rural poor, was principally caused by poverty. The negative attitudes of certain communities towards education and the long distances covered by children to get to schools; the lack of child-friendly learning environments and the low budget allocation for education were other factors to be considered. JS1 also mentioned the very high Pupil:Teacher Ratio and indicated that the proposals included in the 2008-2017 National Education Sector Plan and the 2009-2013 Education Sector Implementation Plan (ESIP) were not based on any sound needs assessment or enrolment projections.
51. JS1 reported that there were more or less equal numbers of boys and girls in each grade of primary school up to Standard 5. Girls tended to drop out of school at the top end of primary school in larger numbers than boys and the disparity increased in each successive grade. JS1 urged Malawi to prioritize measures and programmes designed in the ESIP to promote the promotion and retention of girls in school and to address gender equity issues amongst teachers and local communities. JS1 added that schooling inequalities arising from socioeconomic factors were partly a result of an unequal appropriation of public resources for education and recommended that Malawi ensure that all sectors of the community (poor, girls and children with disabilities) have equal opportunities in education.
52. JS1 reported that quality of education was poor and deteriorating with very poor results in reading and mathematics during public examinations in 2004.
54. WVI indicated that there were no Constitutional provisions on refugee children nor was there data on the subject.
55. JS1 indicated that, due to the HIV and AIDS pandemic that left many orphan children, and that many households are headed by grandparents and very young children. These young children, mainly girls, failed to continue their studies and the situation led to the high rate of dropout of young girls without any adequate protection and support from the Government.
56. With regard to education, JS1 recommended that Malawi give priority to infrastructure development and request, if necessary, technical and financial assistance from international organizations such as UNESCO and UNICEF and increase the level of education financing.
Accepted and Rejected Recommendations
The following recommendations were accepted:
102.1. Expedite the repeal and reform of discriminatory legislation, with a focus on the adoption of outstanding bills, particularly those affecting women and children (Canada).
102.11. Finalize and implement the draft National Action Plan for Children, and put in place effective national legislation and policies to protect the rights of children (Australia).
102.12. Pay particular attention to the rights of the child, especially in combating trafficking and exploitation (Egypt).
102.18. Implement further policies to ensure gender equality throughout society and the promotion of the rights of women and children (South Africa).
102.33. Adopt practical measures to counteract any form of child labour and human trafficking that stunts and deeply wounds the innate dignity of children (Holy See).
102.37. Actively implement existing legislation and strategies on violence against children and arrange an adequate juvenile justice system, with emphasis on raising the minimum age of criminal responsibility (Slovenia).
102.44. Strengthen efforts to combat poverty, discrimination and the promotion of the status of women and children (Morocco).
102.48. Undertake more effective measures to ensure the accessibility of crucial public services such as education, health care and social benefits to the population living in rural areas, in particular rural women and children (Malaysia).
102.54. Pay attention to maternal and child health, and reduce child mortality (Libyan Arab Jamahiriya).
102.55. Redouble efforts to save mother and child by pursuing the education of young girls, increasing the preparation of birth assistants and accelerating the development of public health structures, especially in rural areas (Holy See);.
The following recommendations were rejected:
104.8. Adhere to the following instruments:
- the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; the Optional Protocol to the Convention on the Rights of Persons with Disabilities; and the International Convention for the Protection of All Persons from Enforced Disappearance (Argentina).
105.11. Strengthen efforts to eliminate discrimination against girls and vulnerable groups such as children with disabilities and orphans (Bangladesh).
105.36. Take all necessary measures for the realization of effective compulsory and free-of-cost primary education for all (Italy);
105.37. Continue efforts to ensure that all children finish primary school and make primary education compulsory (Austria);
105.38. Consider making primary education compulsory, in accordance with article 28 of the Convention on the Rights of the Child (Mauritius);
The following recommendations were pending or no clear position was taken:
104.6. Expedite the ratification of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (Turkey).
104.17. Increase significantly, in conformity with international standards, the minimum age of criminal responsibility of children, which is currently 10 years (Mexico).
104.18. Increase the age of minimum criminal responsibility to at least 12 years, as recommended by the CRC (Austria).
104.19. Create a comprehensive policy to improve the rights of the child, which is essential in this situation, in parallel with the ratification of OP-CRC-AC (Hungary).
104.22. Develop and strengthen appropriate legislative measures to address the issue of sexual abuse and exploitation, ensure prompt prosecution of perpetrators, guarantee that no person under the age of 14 is admitted to employment or work, amend the Constitution to raise the minimum age for engaging in hazardous work to 18 years, and enact and implement legislation to ensure the complete prohibition of corporal punishment (Italy).
104.23. Adopt the necessary measures to guarantee that, in accordance with national legislation, children under 14 years of age do not work, and amend the Constitution so as to raise to 18 years the minimum age for engaging in work that is likely to be harmful (Spain).