HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF MALAWI
10 July 2014
The Human Rights Committee today completed its consideration of the initial report of Malawi on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Janet Banda, Solicitor General and Secretary for Justice of Malawi, said that the presentation of Malawi’s initial report was a major step in the State’s commitment to its people in ensuring the entrenchment and enjoyment of human rights and the rule of law. Since 2012, when the report had been compiled, Malawi had made a number of significant achievements. In May 2014, the first ever tripartite elections, for the President, Parliament and Councillors, had been held. The country had also made huge strides in relation to specific rights and freedoms, such as minority rights, rights of persons with disabilities and rights of women. Principles and provisions of the Covenant had been given constitutional status in Malawi, and a Law Commission was in place to work on systematic domestication of applicable international human rights instruments.
During the discussion, Committee Experts asked questions on harmful practices such as widow inheritance and widow cleansing, domestic violence, marital rape, abortion rights, trafficking in persons, rights of sexual minorities, duration of pre-trial custody, application of the Covenant in Malawi courts, backlog of judicial cases, conditions in prisons and free legal aid. The issue of the July 2011 demonstrations that left 20 persons killed was raised, and the Committee wanted to hear more about the follow-up actions taken in that regard. In that context, the excessive use of force by the police was also discussed.
In concluding remarks, Nigel Rodley, Chairman of the Committee, stated that the Committee was aware of the long way Malawi had come since the end of the dictatorship. Remaining problems included excessive reactions to demonstrations and restrictions on freedom of expression.
Mr. Banda thanked the Committee for the useful engagement and the opportunity to apprise the Committee on developments in Malawi. A lot of information had been included in the first report. The delegation would provide answers to outstanding questions in due course.
The delegation of Malawi included representatives of the Ministry of Justice, Ombudsman, Law Commission, Malawi Police, Ministry of Foreign Affairs, and the Human Rights Commission.
The next public meeting of the Committee will take place at 3 p.m. this afternoon when it will begin its consideration of the fourth periodic report of Georgia (CCPR/C/GEO/4).
The initial report of Malawi can be read here (CCPR/C/MWI/1).
Introduction of the Report of Malawi
JANET BANDA, Solicitor General and Secretary for Justice of Malawi, said that the presentation of Malawi’s initial report was a major step in the State’s commitment to its people in ensuring the entrenchment and enjoyment of human rights and the rule of law, and in meetings its international obligations. After having ratified the Covenant in 1993, Malawi had shown up before the Committee for the first time in 2011 to respond to the list of issues, in the absence of a report. The report had subsequently been submitted in April 2012.
The process of compiling the report had been led by the National Task Force chaired by the Ministry of Justice and Constitutional Affairs. Prior coming to Geneva, the Task Force had held a meeting where the list of issues had been discussed. The response to the list of issues was the product of a consultative process. It could be said that what was contained in the 2012 report and the response to the list of issues was representative of the Malawi nation, not only the Government, but of all key stakeholders.
Since 2012, Malawi had made a number of significant achievements. In May 2014, the first ever tripartite elections, for THE President, Parliament and Councillors, had been held. The country had also made huge strides in relation to specific rights and freedoms, such as minority rights, rights of persons with disabilities and rights of women. While homosexual acts remained criminalized, such acts were not pursued by law enforcement agencies; such provisions were currently under review by the Law Commission.
A healthy debate was ongoing in Malawi on the broader issue of minority rights, and civil society organizations dealing with minority rights had the freedom and space to do their advocacy work. The Gender Equality Act had been passed in 2013, essentially domesticating certain aspects of the Convention on the Elimination of all Forms of Discrimination against Women. The Prevention of Domestic Violence Act was being reviewed by a Special Law Commission. The Disabilities Act had also been passed. The Access to Information Bill would be presented to the Parliament in September 2014.
A commission of inquiry had been set up to look into the tragic events of 20-21 July 2011, when 20 people had been killed during demonstrations. The commission’s recommendations had been useful, and demonstrations since 2011 had passed on peacefully.
The Government was committed to meet its obligations when it came to State party reporting, and planned to clear the backlog of all outstanding reports by 2015. Despite the progress, many challenges remained, the main being to ensure that the ideals in the Constitution and various pieces of legislation were actually translated into practice and affected common people. The Government was sincerely grateful for the opportunity to engage in the dialogue with the Committee and was committed to keep the conversation ongoing.
Ms. Banda then proceeded to present a summary of the responses to the list of issues raised by the Committee. Principles and provisions of the Covenant had been given constitutional status in Malawi. There was a Law Commission in place in charge of providing systematic domestication of applicable international human rights instruments through law reform. The Human Rights Commission’s independence was guaranteed by the Constitution and in-built mechanisms to ensure effective implementation of its mandate. The major challenge for the Commission was funding.
The Government did not have data on cases of violence based on sexual orientation. The Gender Equality Act criminalized so-called harmful practices, while the Ministry of Gender had led in campaigns against violence targeting relevant international commemoration days. There were no plans to criminalise spousal rape for the time being. As the minimum age of marriage was a constitutional issue, its change required a popular referendum. A number of initiatives had been undertaken to stop the practice of police brutality, including a basic human rights course and a human rights manual.
The Government had taken a number of measures to ensure the right to fair trial and reduce the backlog of judicial cases, including through the additional appointment of judges. Reasonable, built-in safeguards were put in place for searches without warrant. Offences against morality involving children had been introduced to the Penal Code in 2010.
Questions by Experts
An Expert raised the issue of consistency of local laws with the Covenant. Did the Law Commission have enough funds to conduct its tasks? What was the role of the Commission when the law itself was in line with the Covenant, but its application contravened the Covenant?
Had Malawi reviewed its restrictive abortion laws?
Could the delegation provide statistical data on recommendations issued by the Human Rights Commission and those implemented? Did the Commission have an “A” status? How were the members of the Commission appointed, and what was their position on the question of sexual orientation?
Were persons engaged in illegal traditional practices towards widows, such as widow cleansing and widow inheritance, prosecuted? The State responses did not address the main concerns of the Committee.
More information was needed on the number of reported cases of domestic violence. How many of the reported cases of such violence were prosecuted? Why was there no criminalization of marital rape?
How many counselling and assistance centres had been set up by the Government to address the needs of trafficking victims?
Did Malawi intend to abolish the death penalty or accept the Second Optional Protocol? The moratorium on the death sentence was a welcome, but incomplete solution. Was the State party planning to establish a legal framework for the moratorium?
More details were asked about the use of firearms by the police. Several cases of police violence, including concealing the truth over a killing of a student, were brought up.
Did the prison inspectorate visit prisons only once a year or more frequently? Could there be unannounced visits to prisons? What were the means of communication through which the inspectorate could receive complaints?
How many police officers had been submitted to independent investigations, another Expert asked. What was the composition of local lay units authorized to visit police stations, and what had they accomplished in improving the conduct of the police and the conditions of detainees?
Another Expert asked whether female genital mutilation was explicitly prohibited in the Criminal Code. The response from the delegation had clarified that the phenomenon did not exist in Malawi, which was a surprise, as there were reports of its practice in southern regions of Malawi.
Where were the pre-trial detainees held, and were they kept separately from convicted prisoners? Did the members of the judiciary and prosecution receive necessary trainings on applying correct pre-trial procedures?
The Expert asked the delegation to elaborate on the criteria for legal aid.
Regarding maternal mortality and abortions, the Expert inquired what measures and steps had been taken on reviewing laws on abortion, and whether punitive measures had been removed.
Another Expert asked what the State could do to help the national Human Rights Commission be reissued its “A” accreditation, which was for now put on hold.
Did a problem related to albinism and treatment of albino persons exist in Malawi?
The issue of retention of Malawi citizenship by a woman once she married a non-Malawi man was raised by an Expert.
Response by the Delegation
The delegation said that the issue of the death penalty had been on the agenda for years, and the debate was still ongoing. Statistics on the number of people sentenced to death would be provided later. The Government planned to use the Committee of Pardons, which could make recommendations to the Head of State on reducing the sentences.
On the role and work of the Law Commission, it was explained that its mandate was to carry out law reform on all legislative instruments, including the Constitution itself. The Commission acted on submissions received, but could also commence legislative reform on its own volition. It was a progressive and gradual process, taking into account priorities and problematic legislation. Various aspects of legislation were being looked at. The Law Commission was preparing guidelines on sentencing.
The Gender Equality Act had introduced for the first time the right to sexual and reproductive health, including the right of women to decide whether and when to have children. It prohibited gender discrimination, sexual harassment and banned all harmful practices.
Regarding practices against widows, the delegate said that they were now generally frowned upon. Any harmful practices based on gender were now legally prohibited. There was another piece of legislation proposed by the Law Commission on how to deal with harmful practices, with a particular attention given to HIV/AIDS.
Answering questions on domestic violence, the delegate stated that the data might be scant, but would be collected and provided in due course. Domestic violence legislation was currently being reviewed.
The delegate explained that female genital mutilation was covered in the legislation on harmful practices. The definition was broad and included different practices. It was addressed as a topical subject by the Government.
The Human Rights Commission encouraged debate and research on sexual minorities. The Government had not received any report on cases of violence against those vulnerable groups. The Commission’s “A” status was currently under consideration and had not been lost. The mode of appointment of the Human Rights Commission was under review at the moment, a delegate explained.
The issue of albinos was emerging and the Government would look at it.
It was explained that all State institutions in the country had problems with funding. Financial and human resources challenges meant the Commission was not able to complete all of its tasks in a timely manner.
The inspectorate of prisons had visited all prisons in the southern region of Mali, a delegate said. Those visits were complemented by the Human Rights Commission.
Custody time limits were spelled out in legislation, and went up to 124 hours. Once the pre-trial custody limit had expired, a court could, on its motion, release the suspect.
The delegation said that most police officers had been trained to deal with domestic violence. The counselling aspect was not carried out by the police alone. The number of women reporting such cases was not available at the moment.
The Malawi police service had clear regulations on the use of fire arms, and was guided by the Police Act. Regarding the 20-21 July 2011 demonstrations, the Malawi police service regretted the loss of life. Lessons had been learned from that incident, in which some 20 lives had been lost. Following the report of a commission of inquiry, 60 police officers had been arrested and stopped from duty awaiting court trials.
The Legal Aid Act had formalized signing of memoranda of understanding between the judiciary and the civil sector, which could then supplement Government efforts in that regard.
A lay visitors programme was a necessary mode which could contribute to the improvement of prison conditions. They visited jails without notice, inspected the conditions and ensured that males, females and juveniles were separated. Sometimes the Government was asked to intervene, so that cells were suitable for suspects.
Questions by Experts
An Expert reiterated the question on people engaged in illegal practices, such as widow cleansing. What steps had been taken to ensure that perpetrators were brought to court? Had any such cases been brought to justice?
Were police officers trained to investigate cases of domestic violence? What obstacles did women face when they reported to the police? Were they re-victimized in police stations?
When trafficked women did not receive long-term counselling, they easily fell into being victims of trafficking again, the Expert commented. What programmes were in place to prevent the high rates of trafficking of children?
Another Expert came back to the legal issue of the Covenant in the domestic legal order of Malawi. Were there any laws through which the Covenant had been domesticated, and could the Covenant be seen and interpreted as national law?
The issue of the decriminalization of abortion was raised.
What were the most serious crimes for which the death penalty should be imposed, according to the Malawi legislation? At what point did the so-called “mercy commission” decide to spare the lives of those sentenced to death?
Was there a mechanism that prisoners could use to reach the inspectorate on prisons?
What kind of reparations could persons detained beyond legal time limits expect to receive?
Response by the Delegation
A delegate said that punishment for the perpetrators of harmful practices such as widow cleansing was now covered by the Gender Equality Act, a new act which had just been put in place, so one could not yet talk of perpetrators brought to justice. Those who used to be professional cleansers had been sensitized and were now in the forefront of the fight against the practice. Such practices had never been acceptable in Malawi.
With respect to domestic violence, a delegate stated that law enforcement agents were empowered by law to record and immediately commence investigation after an act of domestic violence had been reported. The capacity of law enforcement agents was there. Most of the obstacles to reporting incidents of domestic violence were social in nature, given the consequences of what happened after the reporting was done. Often times, the person who had to be reported was the breadwinner, which was why it as a challenge for a woman to report him. There were also different societal challenges when it came to reporting violence by men.
There was no comprehensive framework which dealt with the scourge of trafficking in persons. There were shelters provided for women who suffered from domestic violence, and any trafficked women who were found were accommodated there. Counselling, medical assistance and other kinds of support were all provided at such centres.
Regarding the mechanism of prisoners to send complaints, it was explained that normally relatives were used to pass information to lawyers, or through prison inspectorate and national Human Rights Commission visits. Reports of such visits were sent to relevant Government departments, and they reached the public domain. Such reports were appreciated by the prison department itself as they provided guidance for further reform.
On the death penalty, a delegate said that there had been one instance of capital punishment imposed since 2007, for a case of gruesome murder. Courts were guided by a set of common law principles, taking into account aggravating circumstances; formal sentencing guidelines were not yet in place. Offences that called for the death penalty included murder and aggravated robbery.
A delegate stated that a person held in pre-trial custody longer than legally allowed could sue and be compensated for the period spent in detention.
Answering the question on the application of the Covenant, it was stated that Malawi was a dualist State, which meant that international instruments signed did not have direct implication in the country unless there was a special law ratifying it. Some of the Covenant’s provisions were applied in Malawi through statutes.
The Special Law Commission had a limited mandate on abortion, and had submitted its report to the Government, which was to decide which further steps to take.
Questions by Experts
An Expert asked about the lack of judges and lawyers, which had led to a backlog of cases. What measures were planned for dealing with this challenge?
There seemed to be no religious discrimination in Malawi. How did the Government respond to allegations that Rastafarians were not given all the rights in accordance with their faith?
What measures did the Government plan to take to tackle the phenomenon of children living in the streets? Was the problem increasing or decreasing?
Had a fund for supporting people with special needs been already established, and were people with disabilities offered remedies in cases of discrimination? Were there any such cases in courts, either pending or being processed?
An Expert asked questions about the freedom of the media and the intimidation of journalists. Libel remained a criminal offence in Malawi. It was the recommendation of the Committee that States consider decriminalization of libel. A number of concrete cases were quoted.
Was it easy for those who wanted to enter the broadcasting market to obtain licenses?
Examples of detention of human rights defenders who had demonstrated peacefully were raised.
Another Expert inquired whether searches carried out without a warrant were always really urgent and whether the urgency was sometimes interpreted too loosely and satisfied the requirement of legitimate purpose.
The question on separation of pre-trial detainees and convicts was reiterated by an Expert.
The Expert acknowledged the scope of the HIV/AIDS epidemic in Malawi, which was largely due to structural factors, such as inequality and the lack of resources. Could more information be given about the prevention of HIV/AIDS, particularly among minority and marginalized groups, such as homosexuals?
Had any prosecutions been carried out for those responsible for the killings in the July 2011 protests? Had the recommendations of the commission of inquiry led to any concrete action?
Could the delegation inform the Committee what the Government planned to do with the concluding observations? What was foreseen with the national Human Rights Commission? How would the judiciary and the general public be informed about the outcome of the current discussions?
Another Expert asked whether there was legal protection against sexual abuse of children, regardless of the sex of the child.
Had there been progress in raising the age of criminal responsibility from seven, in line with the recommendations of the Committee on the Rights of the Child?
Forced marriages of children were prohibited, but Malawi had one of the highest rates of child marriages in the world. Child marriage thwarted girls and women from participating in all spheres of life. What was the current status of efforts to increase the minimum age for marriage? What about a national action plan to stop and warn against the harms of child marriage?
When was Malawi going to pass into law the draft education bill which would allow a plan to implement the provision on compulsory education? Was the Government doing anything to advance a national policy on teenage reproductive health?
The Expert asked about Government actions to promote and upkeep shelters for survivors of gender-based violence, including abused children.
A question on the publication of Ombudsman reports was asked. How was the public kept informed in that regard?
Could all crimes that could lead to the death penalty be listed for the Committee?
Was it true that marital rape was not recognized as such in Malawi, and, if so, what were the plans in that regard?
Response by the Delegation
Regarding free legal aid, it was explained that the Government was planning to change the legal aid department into a stand-alone institution. The Government was in a partnership arrangement with civil society, with the view of expanding legal aid beyond three capital regions. The Government had increased remuneration for legal aid, in order to attract more lawyers and clear the existing backlog.
The age of criminal responsibility had been raised from seven to 10, a delegate explained.
The Education Act had been enacted in 2013, introducing compulsory education. A question remained on whether it could be enforced.
On the question of Rastafarians, the Government was strategizing on how to address the existing concerns. Some of the issues seemed to go beyond the purview of State institutions.
The delegation stated that the Government was aware of the issue of child labour, and knew that some young children were engaged in heavy or exploitative labour. The Government was looking into ways to ensure the provisions of the existing legislation could be best enforced. Children were defined as persons under 14, in line with Malawi’s socio-economic conditions.
Responding to the question on broadcasters, it was said that there were 77 broadcasting licenses, out of which 16 belonged to private television stations. Public broadcasters were now free from interference.
With regard to initiation ceremonies for girls, the Government had recently adopted a national policy on the girl child, aiming to ensure that girls stayed in school.
The delegation said that there had been several discussions on spousal rape in Malawi, but it was not eventually included in the act on the prevention of domestic violence. The State machinery seemed to be aware of the problem and was trying to find ways to respond, even though it was not incorporated in any statutes as such.
On searches without warrant, the delegation stated that a bill had been initiated by the Law Commission, after which the Government had looked into it and found the proposal acceptable. Searches without warrant had to follow quite firm conditions. There had been no complaints in that regard.
There was a constitutional requirement that pre-trial detainees and convicted prisoners be separated, but there were cases when, due to the lack of space, those two groups had to be kept together.
The bill on HIV/AIDS was all encompassing and aimed at preventing the spread of the disease and did not marginalize any groups, including homosexuals. Best practices from other countries in the region in that regard were taken into consideration; civil society and people living with HIV/AIDS had also been consulted in the process. The Ministry of Justice was planning to take the original draft bill and the subsequent report to the Cabinet, so that a decision could be taken.
On the lessons learned from the report of the commission of inquiry into the events of July 2011, the delegate said that the commission had made quite a wide range of recommendations to several actors. Very detailed procedures had to be followed by organizers of demonstrations, city authorities and the police. Recommendations were also given to the police on how to use force appropriately to control the crowds. The issue of media sensationalism had also been highlighted. Prior to the events of July 2011, there had not been much knowledge on what exactly the law said.
The report and the conclusions of the Committee would be brought to the attention of the Cabinet. Malawi intended to comply with the full process of the dialogue, which could then be used for subsequent reports. It was a continuous engagement process with all stakeholders, which did not end with the presentation of the report.
The Government would try to expedite the process regarding raising the age of marriage.
With respect to the prevention of sexual abuse of children, the Penal Code dealt with girls, and the age had been raised from 13 to 16. There were several acts which applied to both boys and girls, who were thus protected. There were child justice courts in place; restrictions were in place on media reporting from such courts. The police as an institution had child protection officers in almost each of its stations.
The Government had set up an advisory board to monitor the implementation of the Disability Act. The Human Rights Commission had a directorate to deal with people with disabilities.
Questions by Experts
An Expert wanted to know more about the corroboration rule in courts.
When could prosecutions be expected for the events of July 2011, another Expert asked.
Information was asked about the treatment of refugees and asylum seekers in Malawi. Was Malawi committed to the principle of non-refoulement?
An Expert reiterated the question on children living in the streets. Was the number of children
affected by that phenomenon known?
It would be very useful to hear under which circumstances the police could and could not use lethal force.
Response by the Delegation
On the corroboration rule in sexual offences, a delegate explained that there was a requirement for another witness testifying, or the court would look into the totality of the case.
There had been a delay in prosecution for the events of July 2011, but there was a commitment to keep those responsible for offences accountable.
Annual reports on prison conditions were very useful, as their recommendations were frequently applied.
There was a backlog with regard to processing refugee and asylum seeker requests, which the
Government had decided to clear by the end of 2014. The Government was also working on developing a new immigration policy.
The Ministry of Gender was trying to establish the statistics on children living in the streets. Cooperation was also in place with the SOS non-governmental organization with the view of providing housing for street children.
The police could use lethal force in accordance with the Police Act. Firearms could be used when a person’s life was in danger, or if someone who had committed a felony was escaping from custody. The modus operandi of the police was to disable rather than kill in such circumstances. The Government was to ensure that the police operated within the provisions of the law.
JANET BANDA, Solicitor General and Secretary for Justice of Malawi, thanked the Committee for the useful engagement and the opportunity to apprise the Committee on developments in Malawi. A lot of information had been included in the first report. The delegation would provide answers to outstanding questions in due course.
NIGEL RODLEY, Chairman of the Committee, said that it was pleasure to welcome the Malawi delegation and its initial report. The Committee was aware of the long way Malawi had come since the end of the dictatorship. Remaining problems included excessive reactions to demonstrations and restrictions on freedom of expression. The delegation was urged to provide additional materials within 48 hours, including copies of recent reports by the prison inspectorate and the Ombudsman.
For use of the information media; not an official record