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Summary: General overview of Malawi's national legal provisions on children's rights, including guidance on how to conduct further research.
National Laws and Children's Rights Status of the CRC in national law Constitution: Chapter IV of the Constitution of Malawi contains a range of human rights provisions that apply to children as to other citizens, but also a sizable number that make specific reference to children: Legislation: Malawi does not have a comprehensive or consolidated children's act; rather, legislation relating to children's rights is found throughout a variety of sources. Relevant legislation includes, but is by no means limited to: It should also be noted that customary law plays an important role in the Malawian legal system. Legal Research: Case Law Case Law Research Compliance with the CRC In depth analysis: Many of the other concerns that the Committee expressed related to issues that were the subject of draft legislation, including harmful practices such as forced sexual intercourse, the betrothal of young girls and female genital mutilation. The Gender Equality Bill seeks to remedy some of these deficits in national law, but is yet to be enacted. Similarly, the Committee welcomed proposed legislative amendments prohibiting corporal punishment, but expressed concern that the relevant law had not been adopted. Among the other concerns raised by the Committee in its 2009 Observations was the legal uncertainty as to the minimum age for marriage. The Committee recommended that the State adopt legislation that clearly defines a child as a person under the age of 18 for all purposes, including marriage. Current legal reform projects
Under Article 211(2) of the Constitution, the Convention on the Rights of the Child is binding on and forms part of the national law, unless the Malawian Parliament subsequently provides otherwise. In addition, Article 11(2) of the Constitution asks courts to, where appropriate, “have regard to current norms of public international law and comparable foreign case law” in interpreting the Constitution; the Convention has been cited in this way by national courts.
The Constitution of Malawi is available in English through the website of the International Committee of the Red Cross (http://www.icrc.org/ihl-nat.nsf/162d151af444ded44125673e00508141/4953f2286ef1f7c2c1257129003696f4/$FILE/Constitution%20Malawi%20-%20EN.pdf). The website of the Parliament of Malawi (http://www.parliament.gov.mw/) publishes limited legal information, including some legislation, as does the Malawi Legal Information Institute (http://www.malawilii.org/). The International Labour Organisation's NATLEX database (http://www.ilo.org/dyn/natlex/natlex_browse.country?p_lang=en&p_country=MWI) also provides links to selected legislation. In addition, the GlobaLex project at New York University has published a guide to legal research in Malawi (http://www.nyulawglobal.org/Globalex/Malawi.htm) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/malawi.php) and World Legal Information Institute (http://www.worldlii.org/mw/) both offer a selection of relevant government and legal research links.
CRC Jurisprudence
In the matter of the Adoption of Children Act Chapter 26:01 of the Laws of Malawi and in the matter of Chifundo James (an infant) examined the CRC with regards to inter-country adoption, while Evance Moyo v. Attorney General looked at the Convention in the context of the separation of children from adults in detention and the imposition of indeterminate sentences.
The Malawi Legal Information Institute maintains a database of domestic case law in English (http://www.malawilii.org/).
In its 2009 Concluding Observations, the Committee on the Rights of the Child welcomed Malawi's Constitutional Review process and noted the various legislative reforms in which the State was engaged, but expressed regret that the political situation in the State had prevented legislation from being enacted. The delay in enacting legislation incorporating the principles and provisions of the Convention has led to a number of national laws falling short of the standards it sets.
As of the 2009 Observations of the Committee on the Rights of the Child, several aspects of Malawian law fell short of the principles and provisions of the Convention on the Rights of the Child. The Committee expressed particular concern over several aspects of juvenile justice in the State, specifically with respect to the very low age of criminal responsibility (7 years), the practice of detaining children in care in the same institutions as children in conflict with the law, and the practice of detention "at the pleasure of the President". The Committee recommended that the State enact proposed revisions to the Penal Code, but noted that provisions raising the age of criminal responsibility to 10 years would be insufficient to bring Malawian law into conformity with the Convention.
During Malawi's 2009 report to the Committee on the Rights of the Child, several Bills related to children's rights were in various stages of the process of enactment, notably: