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Malawi - Consideration of reports submitted by States parties under Article 44 of the Convention: Initial reports of States parties due in 1993: Addendum [2001] UNCRCSPR 13; CRC/C/8/Add.43 (26 June 2001)
UNITED NATIONS
|
|
CRC
|
|
Convention on the Rights of the Child
|
Distr. GENERAL
CRC/C/8/Add.43 26 June
2001
Original: ENGLISH
|
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER
ARTICLE 44 OF THE CONVENTION
Initial reports of States parties due in 1993
MALAWI
[1
August 2000]
GE.01-42920
(E) 100901
CONTENTS
Paragraphs Page
I. MALAWI AND ITS
PEOPLE 1 - 20 5
II. GENERAL MEASURES OF
IMPLEMENTATION
A. Introduction 21 13
B. The Convention on the
Rights of the Child
and national laws 22 - 33 13
C. The Convention
and national policies 34 - 51 15
III. DEFINITION OF A
CHILD
A. Introduction 52 19
B. Ages of competency in the
national law 53 - 71 19
IV. GENERAL
PRINCIPLES
A. Introduction 72 22
B. Non-discrimination (art.
2) 73 - 86 23
C. Best interests of the child (art. 5) 87 -
95 25
D. The right to life, survival and development (art. 6) 96 -
102 27
E. Respect for the views of the child (art. 12) 103 -
109 28
V. CIVIL RIGHTS AND
FREEDOMS
A. Introduction 110 29
B. Name and nationality (art.
7) 111 - 120 29
C. Preservation of Identity (art. 8) 121 -
125 31
D. Freedom of expression (art. 13) 126 -
132 31
E. Freedom of thought, conscience and religion (art. 14) 133 -
135 32
F. Freedom of association and peaceful
assembly (art.
15) 136 - 138 33
CONTENTS (continued)
Paragraphs Page
G. Protection of privacy
(art. 16) 139 - 143 34
H. Access to appropriate information (art.
17) 144 - 149 34
I. Torture and inhuman or degrading treatment
or
punishment (art. 37 (a)) 150 - 154 35
VI. FAMILY ENVIRONMENT AND
ALTERNATIVE CARE
A. Introduction 155 - 156 36
B. Parental
guidance (art. 5) 157 - 166 37
C. Parental responsibility (art.
18) 167 - 173 38
D. Contact with parents (art. 9) 174 -
180 39
E. Family reunification (art. 10) 181 -
182 41
F. Illicit Transfer and non-return (art. 11) 183 -
185 41
G. Recovery of maintenance for the child (art. 27.4) 186 -
188 42
H. Children deprived of a family environment (art. 20) 189 -
197 42
I. Adoption (art. 21) 198 - 202 44
J. Protection from
abuse and neglect (arts. 19 and 39) 203 - 206 45
K. Periodic review of
placement (art. 25) 207 - 209 46
VII. BASIC HEALTH AND SOCIAL
WELFARE
A. Introduction 210 47
B. Child survival (art. 6) 211
- 217 47
C. Child development (art. 6) 218 - 227 48
D. Children
with disabilities (art. 23) 228 - 234 50
E. Access to effective health
services (art. 24) 235 - 239 51
CONTENTS (continued)
Paragraphs Page
F. Social security (art.
26) 240 - 243 53
G. Standard of living (art. 27) 244 -
246 54
VIII. EDUCATION, LEISURE AND CULTURAL
ACTIVITIES
A. Introduction 247 - 249 54
B. Right of a child to
education (art. 28) 250 - 300 55
C. Educational and vocational
information and
guidance (art. 28.1 (d)) 301 - 306 70
D. Regular
attendance and drop-outs (art. 28 (e)) 307 - 312 71
E. School
discipline (art. 28.2) 313 - 318 72
F. Universal aims of education
(art. 29) 319 - 323 73
G. Leisure, recreation and cultural activities
(art. 31) 324 - 330 74
IX. SPECIAL PROTECTION
MEASURES
A. Introduction 331 75
B. Child Labour (art. 32) 332
- 339 75
C. Children in conflict with the law (art. 40) 340 -
350 77
D. Refugee children (art. 22) 351 - 357 79
E. Sexual
exploitation (art. 34) 358 - 360 80
F. Drug abuse (art. 33) 361 -
365 81
G. Street children 366 - 369 81
H. Sale, trafficking and
abduction (art. 35) 370 - 372 82
I. MALAWI AND ITS PEOPLE
Physical background
- Malawi
is a small country occupying the southern part of the East African Rift Valley,
lying between 9 degrees and 17 degrees south
of the Equator. It has an area of
119,140 square kilometres of which 20 per cent is water. It is landlocked, by
Mozambique in the
south and east, Zambia to the west, and Tanzania to the east
and north. The topography is immensely varied, from the Rift Valley
floor
almost at sea level to mountains rising to 3,000 metres. Tied in with this are
wide ranges in climate, vegetation and economic
activity.
- The
country is divided administratively into three regions: Northern, Central and
Southern Region with a total of 26 districts.
The Northern Region has five
districts, the Central regional nine and the Southern Region 12 districts.
There are three seasons,
a cool dry period from mid-April to mid-August, a hot
period during which relatively little humidity builds up between August and
mid-November, and a period of tropical rains between November and April. Within
this broad pattern, many areas have microclimates,
with annual levels of
rainfall varying from 800 mm (32 inches) to 2,500 mm (100
inches).
- The
variety of landform and climate gives Malawi the ability to grow a wide range of
crops numbering more than 20. However, most
of the land is under maize, the
main staple crop. seconded by tobacco, the main cash crop. Other common food
crops are groundnuts,
rice and cassava. Other main cash crops are tea, coffee
and sugar. These cash crops are grown on both estates and smallholdings.
Lake
fisheries are an important source of protein.
- There
are three categories of land tenure in Malawi. The first relates to customary
land. Traditional leaders allocate this land
since they are de facto
“owners” of the land. Each household has plots of land that have
been “inherited”
from their ancestors who were once allocated the
land. Unallocated land is considered communal but power of allocation rests
with
the traditional leaders. Traditional leaders allocate land to immigrants
either from unallocated communal land or from other less
utilized land.
Formally, the authority for customary land is vested in the President as a
trustee for the people of Malawi. The
second category relates to private land,
which includes leasehold and freehold land. The third category relates to
public land,
which is used, held or occupied by the Government. There are a
number of proven mineral resources but mining has so far been limited
to
lime and coal. Malawi has 5 national parks, 4 game reserves and 66 forest
reserves which together account for 22 per cent of
the land
area.
- There
are five lakes in Malawi. Lake Malawi, third and twelfth larges in Africa and
the world, respectively, is a valuable national
asset as a source of food and
fresh water. It is also as a means of communication, a tourist attraction and a
home to the most diverse
fish fauna of any lake in the world. The other lakes,
which are much smaller, are Chilwa, Malombe, Chiuta and
Kazuni.
The people
- The
total population in 1998 was estimated at 9.8 million, with an annual growth
rate of 1.9 per cent since 1987 as opposed to 3.2
per cent over the 1977-97
period. The population is young: 43.8 per cent below 15 years, 53.9 per
cent below 20 years and only
8 per cent over 64 years. This gives a high
dependency ratio of 1.3, as opposed to 1.0 in 1987. There are more females
(51.6 per
cent) than males. The national population density is 104 persons per
square kilometre. The Northern Region has 12.5 per cent of
the population and
46 persons per square kilometre, while the Central Region has 41.1 per cent with
114 persons per square kilometre
and the Southern Region has 44.6 per cent with
144 persons per square kilometre. The bulk of the population (89 per cent) is
rural.
The estimated total fertility rate is 6.1. The crude birth rate
is 44.1 and the crude death rate is 14.1 per 1,000. About 2.9
per cent of
the population are people with disabilities; about 31 per cent of them are
children under the age of 15 years.
- There
is no dominant tribal grouping. In the major urban centres there are sizeable
communities of both Asian and European origin
involved in commerce and industry.
The language for official communication is English and the commonest spoken
language is Chichewa.
Of late, five other local languages considered major have
been introduced on the national radio. However, this is only in news
broadcasts. Further, local languages are being used for instruction in junior
primary classes. The major religions are Christianity
and Islam, but
Christianity is dominant for historical reasons. There were more Christian
explorers than Arab traders. There has
been very little change in the relative
shares of these religions. Other religions are traditionalism, Hinduism and
Buddhism, among
others.
- About
12 per cent of the labour force is estimated to be employed in the formal
sector. The bulk of these (46.2 per cent) are in
agriculture and fishing, 14.6
per cent in manufacturing and 13.9 per cent in community and personal services.
Some 19.7 per cent
of employees work in the public sector and the remainder in
the private sector. The majority of the labour force not in paid employment
are
mostly in subsistence smallholder agriculture and few venture into the informal
sector as vendors and trained on-the-job artisans.
- Malawi’s
society is characterized by the partrilineal system in the North and the two
southernmost districts, and the matrilineal
system in the centre and remaining
districts in the south, each having its own sets of values and rules. Extended
families are prominent
although the nuclear family system is slowly replacing
the extended family system as the chief production unit and the main source
of
social support. The village is organized under customary law, with authority
vested in a traditional village head helped by village
elders. Malawi’s
villages are grouped under group village heads, sub-chiefs (STA) and traditional
chiefs (TA). Traditional
beliefs, customs, ceremonies, and other social and
cultural factors have a powerful influence on community life. These factors
partly
determine social relationships, decision-making patterns, inheritance
rights, the acceptability of new ideas and practices in areas
such as education,
health, family planning, sanitation, agriculture, borrowing and debt
repayment.
- Women
are key workers and producers in the national economy. They are farmers, income
earners, traders and family caretakers. They
represent over two thirds of the
fulltime farming population. About 70 per cent of smallholder agriculture
work is done by women.
The female labour force participation is estimated
at 64 per cent, nearly as high as that of men (67 per cent). This does not
include
most of the work done by women which goes unrecorded in the official
statistics since the work is not accorded economic value. Further,
about 30 per
cent of Malawi’s rural households are headed by women and these represent
42 per cent of the core poor. This
poverty is also resource-related because
about 70 per cent of the women have an average landholding size of less than a
hectare,
as compared to 50 per cent for the men. Again, nearly twice as many
female- as male-headed households have landholdings of less
than half of a
hectare. According to the Human Development Report 1999, Malawi
ranks 132 out of 143 countries in terms of the gender-related development
index and 90 out of 102 countries in terms of the
gender-empowerment
measure.
Government and administration
- Malawi
received full independence in 1964 and republic status in 1966. From 1964
to 1994 the country was constitutionally under one-party
rule; the
President was given absolute powers in 1971. The Constitution provided for the
independence of the judiciary, the executive and the legislature. However, the
absolute powers of the President
made that noble provision invalid. This changed
with the 1993 referendum, which resulted in the adoption of a multiparty system
of
government, the 1994 multiparty elections won by the United Democratic Front
(UDF) and the adoption of a new Constitution in 1995. The Constitution is now
the supreme law of the land. It provides for separation of powers among the
three organs of the State. The executive is
responsible for the initiation and
implementation of policies and legislation of all laws. The legislature enacts
laws, while the
judiciary interprets, protects and enforces the Constitution and
all laws. The Constitution also provides for the establishment of the Human
Rights Commission, the office of the Ombudsman and the Law Commission. All of
these
institutions of democracy have been established.
- Administration
of justice normally starts at village level. Most civil cases are presided over
by traditional leaders first at village
head level, then sub-chief (STA) level
and finally chief (TA) level. Most cases in rural Malawi are presided over by
these traditional
leaders, using the customary law prevailing in their areas.
The formal court system starts with magistrates courts, presided over
by lay,
paraprofessional and professional lawyers. These are subordinate courts to the
High Court. The High Court has unlimited
original jurisdiction to hear and
determine any civil or criminal proceedings under any law and original
jurisdiction to review any
law. It also hears appeals from magistrates courts,
and any action or decision of the Government. Above the High Court is the
Supreme
Court of Appeal, which hears appeals from the High Court and tribunals
or other courts. An Industrial Relations Court with original
jurisdiction over
labour disputes and such issues relating to employment is provided for and has
been established in 1999.
- Malawi
has three strands of public administration: central government, local
government and the traditional authorities. The traditional
authorities system
has a hierarchy of village headmen, group village headmen, chiefs and, in some
areas, paramount chiefs. Appointment
is normally hereditary but is subject to
confirmation by the President. This structure has an important role in the
political organization
of the nation and in communicating central government
policies down to the village level. It is supervised by the district
administration
of central government. Local government is organized in a
single-tier system with urban councils and rural councils. Urban councils
are
further divided into city, municipality and town councils. Local authority
councillors are required to be elected by the community
concerned. Local
authorities are responsible for providing a number of services, including
primary education, nonprimary road construction
and maintenance, certain public
health facilities and refuse disposal, and are closely supervised by the local
government, a central
government body.
- The
apex of central government is the Office of the President and Cabinet. The
central government includes line ministries that deal
with the implementation of
government policies and programmes. There are also about 55 statutory bodies
established by Acts of Parliament.
Some provide a specific public service,
while others have a particular responsibility to develop a given activity and
others are
effectively business enterprises owned by the State. Of these
about 20 are categorized as commercial. There is, however, under
way a
programme of parastatal functional review and privatization.
Economic characteristics
- The
economy is dominated by agriculture, mainly smallholder agriculture.
Subsistence agriculture accounts for the bulk of the smallholder
agriculture
evidenced by small proportions of marketed agricultural produce. It is
estimated that 56 per cent of farming households
produce only to consume.
Provision of services overshadows manufacturing, and the economic and trade
liberalization has favoured
the distribution sector. See table 1 for
details.
Table 1. Malawi - sectoral shares in gross domestic
product
|
Agriculture
|
1994
|
1995
|
1996
|
1997
|
1998
|
25.2
|
30.8
|
36.7
|
36.1
|
36.2
|
Small scale
|
17.7
|
22.2
|
28.2
|
27.1
|
28.5
|
Large scale
|
7.6
|
8.6
|
8.5
|
9.0
|
78.8
|
Mining and quarrying
|
0.5
|
0.4
|
0.9
|
0.9
|
0.9
|
Manufacturing
|
17.4
|
16.0
|
14.2
|
13.7
|
13.1
|
Electricity and water
|
1.6
|
1.4
|
1.3
|
1.3
|
1.3
|
Construction
|
2.2
|
1.7
|
1.9
|
1.8
|
1.8
|
Distribution
|
26.7
|
24.9
|
22.7
|
24.3
|
24.7
|
Transport and communication
|
5.1
|
4.7
|
4.2
|
4.3
|
4.2
|
Financial and professional services
|
8.3
|
7.9
|
7.3
|
7.5
|
7.2
|
Ownership of dwellings
|
1.8
|
1.6
|
1.5
|
1.4
|
1.4
|
Private, social and community services
|
2.3
|
2.0
|
2.0
|
2.1
|
2.1
|
Producers and government
|
12.1
|
11.4
|
10.0
|
9.8
|
9.6
|
Unallowable finance charges
|
-3.0
|
-2.9
|
-2.7
|
-3.2
|
-2.6
|
GDP at factor cost
|
100
|
100
|
100
|
100
|
100
|
GDP at constant factor cost (MK)
|
9.2
|
10.5
|
11.7
|
12.2
|
12.7
|
Source: Economic Report 1999.
- The
fiscal position of the country has been precarious, although there have been
years when the deficit position has been commendable.
Public expenditure has
over the 1990s been shifting to social sectors. Revenue performance has also
been increasing relative to
GDP over the period. Some key fiscal indicators are
presented in tables 2 and 3.
Table 2. Malawi-fiscal position since 1996/97
(As a percentage of GDP)
|
|
1996/97
Actual
|
1997/98
Actual
|
1998/99
Revised
|
1990/00
Estimate
|
Total revenue and grants
|
20.9
|
18.3
|
24.8
|
25.5
|
Revenue
|
16.3
|
14.7
|
18.3
|
16.0
|
Grants
|
4.6
|
3.6
|
6.5
|
9.5
|
Total expenditure
|
23.6
|
22.9
|
26.4
|
27.6
|
Recurrent
|
18.9
|
19.8
|
19.5
|
17.4
|
Development
|
4.7
|
3.1
|
6.9
|
10.2
|
Extra-budgetary
|
0.0
|
0.3
|
1.9
|
0.0
|
Deficit excluding grants
|
-7.3
|
-8.2
|
-8.1
|
-11.6
|
Deficit including grants
|
-2.6
|
-4.6
|
-1.6
|
-2.1
|
Financing
|
2.6
|
4.6
|
1.6
|
2.1
|
Foreign loans (net)
|
4.8
|
1.9
|
6.4
|
9.8
|
Borrowing
|
6.4
|
3.5
|
8.7
|
12.1
|
Repaying
|
-1.6
|
-1.6
|
-2.2
|
-2.4
|
Domestic borrowing (net)
|
-2.2
|
-2.7
|
-4.8
|
-7.6
|
GDB at current market prices (MKb)
|
37.0
|
57.6
|
65.4
|
83.4
|
Source: Economic Report, 1999.
- Foreign
trade dominates the modern sector of the economy. In 1988, exports
were 28.0 per cent of GDP. Tobacco exports accounted
for 65.9 per
cent of export earnings while tea and sugar accounted for 8.2 per cent and 6.1
per cent, respectively. Manufactured
exports are relatively small, but are on
the increase. Manufactures, industrial raw materials and fuel dominate the
country’s
imports. Major sources of imports are South Africa, Europe,
Japan and the United States of America.
- Although
merchandise exports generally exceed imports, there is a substantial net deficit
in factor and non-factor services payments.
Much of this relates to debt
service and freight charges. The resulting shortfall on the current account is
balanced by a net inflow
of capital, mostly foreign aid but also some foreign
private investment and commercial credit. See table 4 for
details.
Table 3. Revenue and expenditure since
1996/97
Percentage of GDP
|
|
1996/97 Actual
|
1997/98 Actual
|
1998/99 Revised
|
1999/00
Estimate
|
Gross tax revenue
|
15.7
|
14.1
|
15.1
|
15.2
|
Taxes on income and profit
|
6.7
|
6.0
|
6.9
|
6.9
|
Grants taxes on goods and services
|
5.3
|
4.6
|
5.6
|
6.2
|
Taxes on international trade
|
3.7
|
3.4
|
2.9
|
2.0
|
Recurrent net tax revenue
|
15.2
|
13.8
|
15.0
|
14.6
|
Net non-tax revenue
|
1.2
|
0.9
|
3.3
|
1.5
|
General administration
|
4.7
|
5.4
|
7.7
|
6.6
|
Social and community services
|
6.4
|
7.9
|
5.5
|
6.9
|
Education
|
3.4
|
3.6
|
2.6
|
2.8
|
Health
|
1.7
|
1.5
|
1.4
|
1.7
|
All others
|
1.3
|
2.8
|
1.5
|
2.3
|
Economic services
|
1.4
|
1.6
|
0.8
|
1.9
|
Unallocable services
|
6.4
|
4.8
|
5.5
|
20
|
GDP at current market prices (MKb)
|
37.0
|
57.6
|
65.4
|
83.4
|
Source: Economic Report 1999.
Social and economic
indicators[1]
- Malawi
is classified as a least-developed country. According to the Human
Development Report 1999, Malawi’s GNP is estimated at US$ 2.1 billion
with a GNP per capita of US$ 210 in 1997. It is ranked 159th out of 174
countries
on the human development index. External resources play a crucial
role in supporting Malawi’s balance of payments, development
account as
well as revenue account. Total official development assistance (ODA) was US$
350 million (US$ 40 per capita). Total
external debt was US$ 2.2 billion and
the debt service ratio was 12.4 per cent of exports of goods and
services.
Table 4. Malawi - Balance of payment position since
1994
Percentage of GDP
|
|
1994
|
1995
|
1996
|
1997
|
1998
|
Current account balance
|
-22.7
|
-9.3
|
-14.0
|
-13.1
|
-16.1
|
Merchandise trade balance
|
0.4
|
10.5
|
4.2
|
2.7
|
5.2
|
Exports of goods, FOB
|
27.5
|
29.6
|
20.3
|
21.2
|
28.0
|
Imports of goods, FOB
|
27.1
|
19.1
|
16.1
|
18.5
|
22.8
|
Non-factor services, net
|
21.3
|
-16.4
|
-15.9
|
-14.0
|
-18.3
|
Factor services net
|
23.4
|
17.7
|
17.4
|
15.9
|
20.7
|
Private transfers, net
|
1.8
|
-0.3
|
-0.6
|
-0.4
|
-0.8
|
Capital account balance
|
19.7
|
10.7
|
11.2
|
8.6
|
16.7
|
Long-term capital, net
|
19.3
|
11.5
|
10.5
|
8.6
|
16.7
|
Short-term capital, net
|
-4.0
|
0.7
|
-0.7
|
0.0
|
0.0
|
Overall balance after debt relief
|
2.4
|
-4.5
|
-5.0
|
0.4
|
-11.0
|
GDP at current market prices (MKb)
|
10.3
|
22.8
|
35.6
|
41.6
|
52.9
|
(as a percentage of total exports)
|
Tobacco
|
62.1
|
68.2
|
63
|
63.1
|
65.9
|
Tea
|
9.6
|
6.4
|
5.7
|
7.8
|
8.2
|
Sugar
|
8.2
|
6.2
|
7.5
|
5.4
|
6.1
|
Cotton
|
0.6
|
0.9
|
3.3
|
5.6
|
1.1
|
Rice
|
0.7
|
0.3
|
0.3
|
0.3
|
0.5
|
Coffee
|
4.7
|
3.6
|
2.4
|
2.4
|
2.7
|
Pulses
|
0.9
|
1.7
|
2.7
|
1.4
|
1.2
|
Maize
|
0.6
|
1.2
|
0
|
0
|
0
|
Others
|
12.6
|
11.4
|
15.2
|
14.1
|
14.2
|
Source: Economic Report 1999.
- The
extent of poverty is wide and deep. Overall, 60 per cent of the population is
classified as poor, being below US$ 40 of consumption
per annum. Urban poverty
is estimated at 65 per cent. Two thirds of agricultural estate tenants and
workers live below the US$
40 per annum poverty line. Sixty per cent of
households are food insecure as the purchasing power of smallholders’
incomes
and workers’ wages has been eroded by as much as 40 per cent
and 25 per cent, respectively. This poverty is manifested in
high
incidence of malnutrition, morbidity and mortality. For example, about 48.3 per
cent of children under five years of age are
stunted and about 50 per cent are
malnourished. Infant and child mortality rates and are estimated at 135 and 215
per thousand born,
respectively. Life expectancy at birth is estimated at
39.3 years for 1997. Table 5 presents the major socio-economic
indicators.
Table 5. Malawi - Major social and economic
indicators
|
Indicator
|
Applicable period
|
Level
|
GNP (US$ billion)
|
1997
|
2.1
|
GNP per capita (US$)
|
1997
|
210
|
Net ODA (US$)
|
1997
|
350
|
Total external debt (US$ billion)
|
1997
|
2.206
|
Debt-service ratio (% of exports)
|
1997
|
12.4
|
Exchange rate (MK/US$)
|
1997
|
15.3
|
Average annual rate of deforestation (%)
|
1990-1995
|
1.6
|
Female economic activity rate (%)
|
1997
|
46.7
|
Life Expectance (years at birth) Female (years at birth)
Male (years at birth
|
1997 1997 1997
|
39.3 39.6 38.9
|
Infant mortality rate (per 1,000 live births)
|
1995
|
135
|
Under-five mortality rate (per 1,000 live births)
|
1995
|
215
|
Maternal mortality rate (per 100,000 live births)
|
1995
|
560
|
Infants with low birth weight (%)
|
1990-1997
|
20
|
Immunization rate one-year-olds (%) TB
Measles
|
1995-1997 1995-1997 1995-1997
|
100 100 87
|
HIV prevalence rate (%)
|
1996
|
13
|
Cumulative Aids cases (per 1,000)
|
1997
|
505.4
|
Cumulative TB cases (per 1,000)
|
1996
|
209.8
|
Population (million)
Proportion female (%)
|
1998 1998
|
9.8
51.6
|
People with disabilities (proportion (%))
|
1985-1992
|
2.9
|
Adult illiteracy rate Female Male
|
1997 1997 1997
|
55.7 75.2
53.0
|
Gross enrolment rate (%)
|
1997
|
95
|
Net enrolment rate (%) Primary school Secondary school
|
1997 1997
|
98.7
72.6
|
Source: Human Development Report 1999
II. GENERAL MEASURES OF IMPLEMENTATION
A. Introduction
- This
chapter provides the measures that have been put in place since Malawi’s
ratification without reservation of the Convention
on the Rights of the Child.
It outlines the legal and policy measures put in place, as well as those that
are planned to be put
in place. The Constitution has more measures than other
laws. Likewise, newly formulated policies are closer to the Convention than
earlier ones.
B. The Convention on the Rights of the Child and national
laws
- Malawi
ratified the Convention on the Rights of the Child in 1991 without reservations.
Since then, the Government has sought to bring
legislation, policy and practice
into line with the requirements of the Convention. Two main laws have been put
in place since 1991
that specifically deal with children. Other laws are under
review. The review of other laws has been facilitated by the Constitution and
the National Youth Council Act.
1. The Constitution
- The
Constitution of Malawi, adopted in 1995, is the supreme authority of the land
and requires that all legal and political authority should be exercised
in
accordance with its dictates, solely to serve and protect the interests of the
people of Malawi. Section 13 of the Constitution, for example, requires the
State to actively promote the welfare and development of the people of Malawi,
including children, progressively.
The Constitution also obliges the State to
encourage and promote conditions conducive to the full development of healthy,
productive and responsible
members of society.
- The
Constitution has specifically provided for children in the Bill of Rights under
section 23. It states that “all children regardless of the
circumstances of their birth, are entitled to equal treatment before the
law”.
In addition, the provision affords children some rights and
protection. These include the right to a given name, a family name
and to a
nationality, and the right to know and to be raised by parents.
- Children
are further protected from economic exploitation, treatment, work or punishment
that is or may be hazardous, interfere with
their education or might be harmful
to their health or to their physical, mental spiritual or social development.
The Constitution has also abolished the concept of illegitimate children. The
rights and protections under these provisions are only applicable to
children
under the age of 16.
- In
addition, the Constitution has made provision for the establishment of
independent government bodies to promote and safeguard human rights, including
women’s
and child rights. These bodies include the Human Rights
Commission established under section 129 with a mandate to protect and
investigate
violations of human rights accorded by the Constitution or any other
law, and the Law Commission established under section 132 with a mandate to
review laws, including the Constitution itself, for conformity with
international human rights standards and other applicable international
laws.
2. The Human Rights Commission Act
- This
Act was passed in 1998 to provide for the proper functioning of the office of
the Human Rights Commission. Section 13 of the
Act provides that the function
of the Commission is, among other things, “to promote more particularly
the human rights of
vulnerable groups, such as children”. The Commission
has sought to implement this particular provision by establishing a Child
Rights
Unit that is answerable to a special Committee on Children’s Rights.
Membership of the Committee is comprised of both
government and civil society.
The mandate is to promote and protect child rights in a holistic manner in the
light of the Constitution and the Convention on the Rights of the Child. The
Committee has initiated a training of trainers programme on child rights and
human rights in general.
- It
is also hoped that these campaigns will assist in informing the general public
of the existence and functions of the Human Rights
Commission, which is
currently unknown to most Malawians. The Human Rights Commission has the
responsibility to submit to the President,
Parliament or any other competent
authority opinions, recommendations, proposals or reports on any matters
concerning the promotion
and protection of human rights. The Commission also
has the responsibility to examine legislation, judicial decisions or
administrative
provisions in force, as well as bills and administrative
proposals. It is required to make appropriate recommendations to ensure
conformity with the fundamental principles of human rights.
3. The Law Commission Act
- Since
its inception the Law Commission has commenced reviews of various laws. Some of
the reviews particularly address issues concerning
children. The proposed
amendments to the various laws that are relevant to the Convention on the Rights
of the Child are outlined
below. Apart from these, other laws, like the
Censorship and Control of Entertainment Act and the Adoption of Children Act,
are under review to ensure that they conform to the Convention and the
Constitution.
The Constitution
- There
are three proposals that relate to the rights of a child. The first is that the
best interests and welfare of the child should
be entrenched in the
Constitution. The second is that children with disabilities and orphans should
be included as vulnerable groups. The third proposed amendment
is that the
Constitution should provide for reasonable maintenance of children by both
parents at all times, as long as the parents are alive and
able.
Affiliation Act
- This
Act deals with maintenance of children born out of wedlock. There are two
recommendations. The first is that the level of the
maintenance should be
increased to reflect the reality of maintaining a child. The second is that
courts should collect maintenance
allowance payments from the salary or other
regular income of the putative father to ensure the responsibility is not
avoided.
The Penal Code
- Issues
under consideration include those relating to the age of criminal
responsibility, sexual offences involving children as victims
and domestic
obligations. The law discriminates between boys and girls in relation to sexual
offences. For example, defilement
occurs if a girl is under 13 years and
indecent assault occurs if a boy is under 14 years. The disparity also
manifests itself in
the penalties. For defilement the maximum penalty is life
imprisonment, while for indecent, assault of a boy, it is seven years.
Though
the law provides stiff penalties for defilement, courts impose very lenient
sentences, ranging from a suspended sentence
to six months’
imprisonment. There are two major reasons for such light sentences. The first
is that most magistrates are
male and the second is that most of the magistrates
are para-professionals (i.e. lay). The review is meant to clear up the
disparities
and provide clear guidelines for sentencing.
4. The National Youth Council Act
- This
was passed in 1996 to promote youth participation in national development. To
this effect, children and the youth have formed
associations. This freedom of
association has allowed children representation to appropriate authorities. All
recommendations to
amend the Constitution in relation to child rights came from
Young Voices, one such organization.
C. The Convention and national policies
- Section
13 of the Constitution provides for the State to actively promote the welfare
and development of the people of Malawi by progressively adopting and
implementing
policies aimed at achieving various goals. Goals that directly
relate to children include (i) adequate nutrition for all, (ii) adequate
health
care, (iii) sustainable environmental utilization and management, (iv) good
quality life in rural areas, (v) elimination of
illiteracy, (vi) fullest
possible participation of people with disabilities in all spheres of the society
and (vii) full development
of healthy, productive and responsible members of the
society.
1. Multi-sectoral policies and programmes
- Immediately
after ratifying the Convention the Government formulated the National Programme
of Action for the Survival and Development
of Children in the 1990s. This
programme was adopted in 1993 as a follow-up to the World Summit for Children.
The implementation
of the action plan was slowed down because of economic
instability and political transition. In 1995, the new Government created
a
Children Affairs Division in the Ministry of Gender, Youth and Community
Services and formulated the Policy Framework for Poverty
Alleviation Programme,
which identified youth and orphans as vulnerable groups. As a followup to the
Beijing Fourth World Conference
on Women, the Government launched a National
Platform of Action in 1996. The National Platform of Action identifies areas of
action,
which include the girl child and violence against women. Currently,
there is a draft policy on gender and development which also
emphasizes the
education and health of the girl child. In 1998, the Government formulated a
long-term development vision, entitled
“Vision 2020”, after
extensive consultations. “Vision 2020” identifies children as a
vulnerable group.
2. Sectoral policies and programmes
- The
Constitution, in section 13, sets out the principles for national policy. In
essence, all sectoral policies are obliged to follow these principles. The
policies
formulated since then have taken most of these principles into
consideration.
National early childhood development policy
- This
policy was adopted in 1998. It covers child nutrition, health, recreation and
education. Apart from preparing a child for primary
education and ensuring
her/his survival, the policy also attempts to free mothers to take on
non-childcare activities.
Education policy
- The
current education policy, in line with the Constitution, provides for free and
compulsory primary education. It recognizes the potential education has for the
development of the child.
It addresses the issues of access, quality and equity
in order to improve general education levels of the citizens, especially
children.
Food security and nutrition policy
- The
policy aims at improving food sufficiency and nutritional status at household
and national levels. It also has special emphasis
on child
nutrition.
Health policy framework
- The
overall objective of the health policy is to reduce the high mortality rates,
especially of children. The policy aims at supporting
basic programmes,
including nutrition and communitybased primary health care (PHC) activities,
both of which promote child survival
and development.
Policy guidelines on orphans
- This
policy was adopted in 1991 as the number of orphans increased due to HIV/AIDS.
The policy provides for the improvement of the
social welfare, care and standard
of living of orphans and other children in situations of
disadvantage.
Youth policy: Youth, the Nation Today and
Tomorrow
- The
objective of the policy is to develop young people to their full potential and
promote their active participation in national
development.
3. Programmes and projects
- These
are a number of programmes that are child-centred. Most of these are quite
recent. The major programmes are described below.
Gender equality and equity sub-programmes
- This
programme includes the Participatory Development for Women and Children Project
and the Community Nutrition Project. The first
has a component on training of
extension staff on the rights of a child. The second aims at improving the
nutrition status of members
of the communities, especially children, through
nutrition education and crop diversification. This programme is currently in
four
districts.
Orphan care community-based child care programme
- There
are two components in this programme.
(i) Family and community care for children in difficult
circumstances
The main thrust is to strengthen community
institutions, like nuclear and extended families and religious institutions, to
be able
to assist orphans. The other focus is on training and providing
resources to community-based structures to look after orphans and
other needy
children. Many orphans and other needy children, in excess of 250,000, have
been assisted in all districts in one way
or the other.
(ii) Community based child care
This project, which relies
on community initiatives, involves extension workers from various government
departments and aims at promoting
the delivery of child care services,
particularly at village level, in order to improve child nutrition, early child
stimulation,
growth and development. So far the project has covered 13
districts.
Youth development and credit scheme
- The
project started in 1997 with the overall goal of providing opportunities to the
youth by developing entrepreneurial skills and
knowledge, and stimulating
increased youth employment and self-employment through the provision of credit.
It is funded by the Government.
Since the inception of the scheme, 1,400 youths
in the Southern Region have been trained. Of these 1,370 received loans
totalling
MK 6,833,414. In the Central Region 1,018 youths have been trained
and 508 of these received loans amounting to MK 1,586,100. In
the North, 720
youths have been trained and 300 received loans amounting to MK
1,161,556.
Family life education project
- The
project started in the early 1990s and has been focusing on meeting the
reproductive health needs of young people aged between
14 and 25 years. The
major activities include meeting officers dealing with youth issues, designing
and preparing training materials
for peer education and collaboration between
partner agencies.
Youth participation and reproductive health
project
- This
project aims at providing non-formal education to out-of-school youths to enable
them to gain some skills. The reproductive
health component facilitates the
formation of EDZI TOTO (i.e. say “no” to AIDS) clubs within
communities, where information
on health issues related to HIV/AIDS is shared.
This project evolved from the family life education project.
Girls’ attainment in basic literacy and education
(GABLE)
- The
project aims at promoting equity in education between boys and girls through
increased girls’ enrolment, retention and achievement.
It used to provide
assistance to nonrepeating girls in terms of school fees and school uniforms
from standards 2 to 8. After the
introduction of the free primary education
(FPE) policy in 1994 until 1998 the focus of the GABLE project was to offer
bursaries
to girls attending public secondary schools. This project phased into
an NGO in 1999. The NGO’s focus is on social mobilization
and improving
the quality of education.
4. Mechanisms for policy coordination
- One
of the mandates of the Ministry of Gender, Youth and Community Services was to
coordinate all policies affecting the interests
and welfare of children in
Malawi. To facilitate the realization of this mandate, the Ministry created the
mentioned Children Affairs
Division. However, there were capacity problems in
the Ministry to realize systematic coordination of the policies affecting
children.
In an effort to address the problem, a Child Rights Unit within the
Human Rights Commission has been created in 1999 with the aim
of promoting,
realizing and protecting child rights in a holistic way. It is an institution
that will work closely with the Government,
but be independent enough to monitor
and advise. It will coordinate all policies affecting children and advocate for
their reform
if need be.
5. Measures taken to publicize the provisions of the
convention
- A
number of measures to publicize the Convention have been undertaken since Malawi
ratified it. These include:
Some children and youth associations have been advocating the contents of the
Convention using the child to child to adult strategy
in their campaigns. The
most prominent association in this regard has been the Young Voices Movement,
which is in six districts
of Malawi. They have formed clubs both in primary and
secondary schools. These clubs discuss issues related to the Convention and
sensitize their fellow children as well as adults. Their plans of action each
year include sensitization campaigns on the Convention.
The Government, NGOs and children’s and youth organizations use annual
special events for children to advocate the contents
of the Convention. Some of
the annual special events are: the Day of the African Child, which falls on 16
June each year; the Children’s
Day of Broadcasting, the Universal
Children’s Day and the launching of the State of the World’s
Children report. The institutions use the media and popular theatre in
publicizing the provisions of the Convention. There are also sensitization
campaigns through seminars, workshops and meetings. Some of the notable
seminars on awareness of the Convention were those which
were organized for
parliamentarians in 1996 by UNICEF in collaboration with government ministries
such as the Ministry of Gender,
Youth and Community Services and the Ministry of
Local Government.
The English version of the Convention was translated into Chichewa in 1998.
Some copies have been distributed to the populace of
Malawi and are being used.
By and large, this popular version has facilitated publicity of the
Convention.
About 25 core trainers have been trained on the Convention in 1999 by UNICEF.
These trainers will in turn conduct training under the
coordination of the Child
Rights Unit which has been established in the Human Rights Commission.
III. DEFINITION OF A CHILD
A. Introduction
- This
chapter outlines what various laws provide as definitions of a child. It also
outlines areas where there are no legal provisions
at all. Inconsistencies and
lack of logical reasons for ages of competency stipulated in definitions were
noted during the consultations.
According to article 1, “a child means
every human being below the age of eighteen years unless, under the law
applicable,
majority is attained earlier”.
B. Ages of competency in the national laws
- National
laws, including the Constitution, do not have one definition of a child.
National laws and the Constitution do not uniformly comply with the Convention
nor do they uniformly define a child. Rather, different laws prescribe the
minimum/maximum
legal age for various purposes. For example, the Constitution
defines children for the purposes of human rights as persons under 16 years.
Additionally, there are instances where there is no
provision or legislation for
children in certain cases. Outlined below are various instances and their legal
provisions in the laws.
Legal counselling without parental consent
- There
is no law prescribing the minimum age at which children can receive legal
counselling in the absence of parents or guardians.
Notwithstanding the fact
that the law is silent on this aspect, some people, especially in urban areas,
allow and encourage their
children of 12 years and above to benefit
from legal counselling services.
Medical counselling without parental consent
- This
is another area where the law is silent. Nevertheless, people in both rural and
urban areas prefer to send their children to
clinics where they get appropriate
information regarding health issues. In practice, therefore children of about
12 years old are
permitted to access counselling services
independently.
Age of criminal responsibility
- Under
section 14 of the Penal Code, children are regarded as having criminal capacity
at the age of seven years, although there is
a presumption that between the ages
of 7 and 12 the child lacks criminal capacity. The presumption can be rebutted
by the State
where it is obvious that the child knows the difference between
right and wrong and is able to act in accordance with that knowledge.
The Law
Commission is currently reviewing the Penal Code in order to raise the age of
criminal responsibility. The general perception
of Malawi is that the age
should be 12 years. In practice, children of 12 years and below are
seldom taken to the police if they
commit an offence. They are mostly dealt
with by their communities by way of admonition and counselling.
Age of sexual consent
- The
law differentiates between boys and girls regarding the age of sexual consent.
Section 138 of the Penal Code makes it a criminal
offence to have sexual
intercourse with a girl below the age of 13 years with her consent; such an
offence is called defilement.
The principle is that a girl below 13 years is
irrefutably presumed incapable of consenting to sexual intercourse. On the
other
hand, under section 14 of the Penal Code, a boy is presumed to be
incapable of consent to sexual intercourse if he is below the age
of 12 years.
There has been pressure from women’s lobby groups to increase the age of
sexual consent for girls to 16 years.
In fact, due to cultural practices, girls
of 13 years and sometimes even below, are encouraged by parents or guardians to
marry
in some parts of the Southern Region. This is true
mostly.
Age of military service
- The
Constitution provides, under section 23, that every child under 16 years is
entitled to be protected from work that is likely to be hazardous. This implies
that the Constitution prohibits the recruitment of children under 16 years into
the military service, which can be categorized as hazardous
employment.
- In
addition the Army Act, under section 14, stipulates 18 years as the minimum age
of recruitment into the armed forces. If a person
is under this age, written
consent has to be obtained from his parent or guardian or, where they are dead
or unknown, by order of
a magistrate.
Paid work
- The
Constitution, under section 23, requires protection for children under the age
of 16 years from economic exploitation and performing work that is or
is likely to
be hazardous, interfere with their education or is harmful to their
health or to their physical, mental, spiritual or social
development.
- The
minimum age of employment for children is specified in the Employment of Women,
Young Persons and Children Act. This Act distinguishes
between a child and a
young person. It describes a child as a person under the age of 12 years and
prohibits employment of such
child at night or in any public or private
industrial undertaking. By implication the law permits employment of children
below 12
years in other areas, like domestic work.
- A
young person is defined as someone who is between 12 and 16 years. Section 4
provides that such a person should not be employed
at night or in any public or
private industrial undertaking other than where only members of the same family
are employed. This
extension absolves family members from liability where they
employ children of between 12 and 14 years in hazardous
employment.
- The
law does not protect children of below the age of 12 years from regular
employment. The emphasis is on protection from working
at night and heavy
tasks. There is therefore employment of young children in lighter work and in
domestic work. The Act also allows
employment of young children.
Notwithstanding, trade unions are concerned about work conditions on tobacco and
tea estates, more
especially the employment of underage
children.
Marriage
- The
Constitution, under section 22, provides that the minimum legal age for marriage
is 18 years for all persons. The Constitution further requires that
persons between the age of 15 and 18 years should only marry with the consent of
parents or guardians.
- The
constitutional provision differs from the provisions of the 1903 Marriage Act,
which governs statutory marriages. Section 19
of the Marriage Act stipulates
that a person under 21 years is a minor and can only enter into
marriage with the written consent
of his parents or
guardians.
- In
practice, it is common in the rural areas of Southern and Central Regions for
girls of age 15 years and below to enter into marriage.
This is mainly due to
the cultural practices prevailing in these two regions. For example, during
initiation rites girls as young
as 10 years are prepared for possible marriages.
It is difficult to stop this practice, partly because the law does not expressly
prohibit marriages of children below 15 years old. The Constitution merely
states that the State should discourage such marriages.
Compulsory education
- Section
25 of the Constitution grants every person the right to education and stipulates
that primary education shall consist of at least five years. This provision
which establishes education as a right, falls short of the requirement in
section 13 (f) of the Constitution which requires primary education to be both
compulsory and free. There is therefore no maximum age stipulated for
compulsory education.
The right to vote
- Section
77 (2) of the Constitution provides that a person acquires the right to vote in
elections at the age of 18. Nevertheless, people, mostly in the rural areas,
are inadvertently allowed to vote under the stipulated age because they marry
earlier or may not know their age or tend to age faster.
Consumption of alcohol
- Under
section 7 of the Liquor Act, it is an offence to supply liquor to any person
under 18 years irrespective of whether the liquor is supplied for the
personal use
of such young person or of some other person. This implies that a
person acquires the right to purchase and consume alcohol at the
age of 18
years. In practice, this law is not enforced. It is common to find children
under 18 years buying and drinking liquor
in public places.
Maximum age for adoption
- Section
2 (2) of the Adoption of Children Act defines an “infant” as a
person under the age of 21 years. Other laws, including the
Constitution, however define an adult as a person who is 16 years or 18
years.
Trial and imprisonment of children
- Section
42 of the Constitution provides for a juvenile court. The Children and Young
Persons Act provides that a child between the ages of 14 years and 18 years
should be tried as a person who knew what he or she was doing. A child between
the ages of 7 years and 14 years is tried with the
presumption that his or her
understanding or his or her actions is limited, unless proven
otherwise.
IV. GENERAL PRINCIPLES
A. Introduction
- This
chapter provides relevant information on legislative, administrative and other
measures put in place or that are planned to be
put in place, and progress and
constraints encountered in the implementation of the general principles of the
Convention. These
are principles of nondiscrimination, best interests of the
child, the right to life, survival and development, and respect for the
views of
the child.
B. Nondiscrimination (art. 2)
1. Constitutional provisions
- Section
20 (1) states that “discrimination of persons in any form is
prohibited and all persons are, under any law, guaranteed
equal and effective
protection against discrimination on grounds of race, colour, sex, language,
religion, political or other opinion,
nationality, ethnic or social origin,
disability, property, birth, or other status”. Section 23 (1)
states that “all
children, regardless of the circumstances of their birth,
are entitled to equal treatment before the law”. Further,
section
24 (2) invalidates any legislation that discriminates on the
basis of sex or marital status. It also provides for the passing of
legislation
to eliminate customs and practices that discriminate against
women.
2. Other legal provisions
- No
specific legislation has been passed with the intention of entrenching the
principles of nondiscrimination. Instead, there are
Acts that still have
provisions with respect to discrimination on the basis of sex, social origin and
other status and condition.
3. Policies and programmes
- There
is no direct policy that deals with this principle of nondiscrimination. The
draft policy on gender and development, which
has been a product of the National
Platform of Action on Gender and Development, addresses the problems of
discrimination in sectors
and areas that discriminate on the basis of sex. The
draft policy on education also addresses the problems of gender imbalances
created by discriminatory cultural practices and policies. It also addresses
the problem of discrimination against children with
special needs. In the
policy on people with disabilities which is to be developed, it is also intended
to address the problem of
discrimination against people with
disabilities.
- There
have been a few affirmative (discriminatory) programmes with a view to
correcting gender imbalance. The GABLE programme, which
has been turned into an
NGO, sought to increase girls’ enrolment, achievements and persistence in
schools. Its strategies
included paying primary school fees for nonrepeating
girls, a social mobilization campaign that emphasized the importance of girls
education among girls themselves, parents and communities, and, thirdly, the
development of gender-sensitive material. Currently,
the NGO is focusing on
nonrepeating secondary school girls.
4. Progress and constraints
- The
problem of discrimination exists to a large degree. It is not rampant but
deeprooted and there are signs that it is declining.
Discrimination against
girls and children with special needs is rampant. The key determining factor is
culture. In paternalistic
cultures, a girl or woman does not have the right to
inherit. In general, girls’ education is considered not important. A
girl is not encouraged to continue with her education: she is instead
encouraged to marry early.
- Children
with special needs are culturally not accepted. Care provided to these children
is not optimal and the result is that their
survival and development is made
difficult. Government does not have enough institutional and financial capacity
to take care of
these children, either while they are with their parents or in
an institution. Facilities and infrastructure in terms of schools,
educational
materials, teachers and trainers are in very short supply. Many children with
special needs have problems developing
to some level of usefulness, let alone to
their fullest potential.
- These
cultural attitudes and practices are commonplace in homes, schools, workplaces
and the communities. For example, in a family,
preference is given to a boy
child and not a girl child and the girl is further laden with a lot of domestic
work at the expense
of her education. When this results in general poor
performance of girls at primary school level, few places are reserved for girls
at secondary school. This, over time, turns out to be discriminatory as more
and more girls fail to get secondary school places.
Currently, there are three
girls to seven boys at secondary school level. The plan is to equalize this to
1:1 through increasing
the number of day and community secondary
schools.
- At
the community level, girls are encouraged to marry early and ridiculed if they
continue with their education. Boys, on the other
hand, are encouraged to
continue with their education. At the workplace, girls and women are less
likely to be employed, as employers
are wary of their gender roles at home which
lead to absenteeism.
- Similar
if not worse treatment is given to children with disabilities. However, some
children with special needs who pass their examinations
are integrated in public
secondary schools and universities. Currently, there are five secondary schools
that can integrate vision
impaired children.
- The
use of English in school, starting from primary school, and in official
communication also discriminates against over half of
the population, given the
40 per cent literacy rate. Children who are slow in mastering the
language are considered “dull”
and mostly neglected by teachers.
Drop-out and repetition rates are also attributed to the use of English. In
fact, a failure in
English in the Primary School Leaving Certificate
Examinations (SPLICE), Junior Certificate Examinations (JCE) and Malawi School
Certificate Examinations (MSCE) means failure in the entire
examinations.
- There
is no discrimination on the basis of religion. All religions exist and the only
ban, which was on the Jehovah’s Witness
sect, has been lifted. There is
also no major discrimination on the basis of political leanings. There is some
political tolerance
as evidenced by the existence of multipartism. Although
there is no discrimination on the basis of tribes and ethnicity, there exist
some regionalistic tendencies. This is evidenced by the voting patterns in the
last two elections of 1994 and 1999.
- At
the public service level, the poor and disadvantaged are discriminated against
relative to the rich. Likewise, rural areas which
are also poor are less
advantaged than urban areas. Children coming from poor families are less likely
to have chances of employment,
which is mostly in urban areas and advertised
mostly in newspapers whose readership is urban based.
- The
situation is made worse by the fact that the current school curriculum does not
include the principle of nondiscrimination. The
curriculum review has taken up
the issue of incorporating the principle of nondiscrimination.
- Culture
leads to some groups of children being discriminated against. Likewise, lack of
institutional, human and financial resources
limit the Government’s
capacity to deal with the special needs of children who are discriminated
against. Girls are culturally
discriminated against and there are few education
facilities open to them. Likewise, children with special needs are
discriminated
against at home and in school. In fact, these children lack
teachers and trainers, in addition to appropriate teaching and learning
materials, and sanitary and transport facilities. Children in rural areas have
less access to facilities like libraries, schools,
roads and health facilities.
Urban children have access to publications, newspapers, magazines and a host of
other sources of information.
C. Best interests of the child (art. 3)
1. Constitutional provisions
- The
Constitution does not provide for the principle of the best interests of the
child. However, the Constitutional Technical Review has recommended
that this
principle should be provided for. The Constitution provides for the right of a
child to maintenance, but only after the dissolution of a marriage. The
Technical Review has recommended
that a child should have a right to reasonable
maintenance from his or her natural parents, whether married, unmarried or
divorced,
and also from their guardians. This recommendation has yet to be
included in the Constitution.
2. Other legal provisions
- There
are certain laws and their court applications that provide for and consider the
best interests of the child. For example, in
custody cases presided over by
professional magistrates and judges, the paramount consideration is the welfare
of the child. Likewise,
in the Adoption Act, the same consideration is provided
for. The Children and Young Persons Act provides for juvenile justice to
be
conducted according to the principle that the best interests of the child should
be paramount. The unwritten customary law, however,
does not necessarily take
into consideration the principle of the bests interests of the child. In
custody cases, a child goes to
the father in the patrilineal system, if a bride
price was paid. In the matrilineal system, the child goes to the mother.
However,
being dynamic, the trend in the matrilineal system is changing. In
many custody cases, the principle of the best interests of the
child is being
applied.
3. Policies and programmes
- There
are no specific policies and programmes that are directly related to the
principle of the best interests of the
child.
4. Progress and constraints
- Children
who are in conflict with the law are rarely removed away from their homes to
prison or an approved home. Likewise, children
are removed from natural parents
to foster parents only when it is in the best interests of the child and only
when the courts prove
sufficiently that there is no guarantee of the principle
holding in the child’s home. The Government has set up transit centres
in
urban areas where children who run away or need a home are temporarily kept
while a foster parent or institution is being identified
for the
child.
- The
provisions of the Children and Young Persons Act which recognize the principle
of the best interests of the child are not always
implemented in practice.
Children are tried in open courts, instead of closed juvenile courts. Further,
although the Act prohibits
publication of the particulars of the juvenile
offenders, such as name and address, journalists still publish them. In general
the
juvenile court system is not fully working in the best interests of the
child due to limited human and financial resources. Juveniles
are subjected to
prolonged stays in police cells and mixed with adults in remand and prison. In
some cases they receive harsh punishment
instead of being sent to an approved
school.
- In
cases of child custody, the principle of the best interests of the child is
mostly applied only by professional magistrates. Unfortunately,
most custody
cases are handled in lay magistrate courts where customary law mostly applies.
The granting of custody in these courts
is based on culture, which may not be in
the best interests of the child. The practice of sharing a deceased
person’s estate
among family members other than the children is also not
in the best interests of orphaned children. Although, in such cases, part
of
the estate is allocated to the children and spouse, it would be in the best
interests of the children if most of the estate was
left for the
children.
- It
is becoming clear that culture has not been the best promoter of the principle
of the best interests of the child. Some cultures
require children to undergo
initiation rites which are not always in their best interests. Likewise, some
cultures force children
to marry young and in some cases their marriage is an
arranged one. While these cultural practices are viewed to be in the best
interests of the child by those who propagate them, they are mostly not,
especially in the long run.
- The
conflict between what is considered the best interests of the child by culture
and by the Convention is also manifested in corporal
punishment. In homes and
primary schools, children receive corporal punishment in the name of the best
interests of the child.
Sometimes this punishment is meted out while others are
learning, thereby denying the child an opportunity to learn. Clearly, this
is
not in the best interests of the child.
- The
principle of the best interests of the child is yet to take root in the society.
Although there is a legal framework where the
principle of the best interests of
the child should be applied, it has been difficult to apply it due to limited
human and financial
resources on the part of the Government and culture on the
part of magistrate courts, communities and households. It would take
significant changes in attitude on the part of the custodians of culture,
educators and budget directors for the principle of the
best interests of the
child to be inculcated.
D. The right to life, survival and development (art.
6)
1. Constitutional provision
- The
Constitution also provides for the right to life. Section 16 states that
“every person has the right to life and no person shall be arbitrarily
deprived of his or her life”.
2. Other legal provisions
- The
Children and Young Persons Act stipulates that “the sentence of death
shall not be pronounced on or recorded against a person
under the age of
eighteen years”.
3. Policies and programmes
- The
survival of children is stressed in the health policy. Special programmes such
as those for maternal and child health and safe
motherhood have been put in
place which provide antenatal and growth monitoring (under-five) clinics. The
expanded programme of
immunization (EPI) has assisted in achieving very high
immunization rates and increased the survival rate of children. The less
widespread vulnerable group feeding and water and sanitation programmes run by
the Government and NGOs also assisted in reducing
child deaths from
malnutritionrelated conditions and diarrhoeal diseases.
- The
Early Childhood Development Policy facilitates psychological, psychosocial and
physical development of children between ages two
and six. Under this policy is
the programme of community based childcare. The programme is meant to improve
child care for children
at the community level by letting the community members
take turns in taking care of the children, providing a chance for the children
to develop together and leaving the mothers free to engage in other
activities.
- The
Orphan Care Policy has been put in place in response to an increasing number of
HIV/AIDS victims’ orphans. The policy encourages
community based orphan
care support (i.e. extended families, communities and community based
organizations) as opposed to institutionalized
orphanages. Orphanages are
considered as a last resort response to the orphan problem. This is considered
to be in the best interests
of the child and proper for the development of the
child.
5. Progress and constraints
- Malawi
has made strides in immunization. Its immunization rates are among the highest
in the world. The immunization rate for children
under one year of age was
100 per cent for the 19951997 period. The immunization rates for
TB and measles, for the same period,
were 100 per cent and
87 per cent respectively. Further, there has been no reported case of
polio since 1987.
- Infant
and child mortality rates are, nonetheless, still too high by regional and
international standards. About 13 per cent of children
born alive die
before their first birthday and about 21 per cent die before their
fifth birthday. Most of the deaths are caused
by malaria and preventable
waterborne and malnutritionrelated diseases. Resource constraints hamper
progress and rural areas are
the hardest hit. Further, lack of parental care
manifested in negligence, laziness and poor feeding practices also contributes
much
to the high mortality rates.
E. Respect for the views of the child (art. 12)
1. Constitutional provision
- Section
34 provides that “every person shall have the right to freedom of opinion,
including the right to hold and receive opinions
without interference and to
impart opinions”.
2. Other legal provisions
- The
Children and Young Persons Act provides for children to be heard and assisted by
parents or guardians. In adoption cases, under
the Adoption Act, a social
welfare officer is supposed to hear the views of the child to be adopted and
write a report based on the
interviews. Likewise, in custody cases, the judge
takes the children into the chambers (not the open court) to hear the views of
the children so as to obtain relevant information that would assist in forming
the judgement. Customary law does not provide for
the principle of hearing the
views of the child, even in matters that concern her or him.
3. Policies and programmes
- The
National Youth Policy, adopted after the adoption of the new Constitution,
provides for channels for children to express their views. The National Youth
Council is one such channel. Youth organizations,
which are also provided for,
have been used by young people to express their views.
4. Progress and constraints
- Culture
restricts children from expressing their views. Children at the household level
have problems in expressing their views,
let alone having the views respected.
Only in a few families that are mostly educated and urbanbased are children
given a chance
to express their views. At the community level, children are not
supposed to express their views unless requested to do so.
- In
more formal settings, children are given the right to express their views. This
is basically because these settings are not bound
by the culture. Children in
school express their views through set channels. At the national level,
children express their views
through youth organizations, the National Youth
Council, radio and television. The Constitutional Technical Review has already
heard
one youth organization, the Malawi Young Voices, which presented
recommendations that the Constitution should incorporate the four principles to
ensure adequate protection of the child.
- Under
the juvenile justice system, but not customary law, children are allowed to
express their views. Again, in cases of foster
parenting, no child is placed
unless his or her views are heard. When cases involving custody of children are
brought before lay
magistrates, the magistrates do not follow proper procedures.
In most cases, the child’s right to express his or her views
is not
exercised.
- Again
culture is the main stumbling block for the principle of respect for the views
of a child to take root. Although the Government
has created a conducive
environment for children to express their views at the national level, the
society is not ready to respect
their views. Currently the society views the
opening up provided for by the Government as retrogressive. Giving freedom of
expression
to children is viewed as contributing to the increasing problem of
juvenile delinquency. It will take sustainable efforts and time
to change the
society’s line of thinking.
V. CIVIL RIGHTS AND FREEDOMS
A. Introduction
- This
chapter provides the status of Malawian children’s enjoyment of their
civil rights and freedoms. It concentrates on those
rights and freedoms most
relevant to the Malawian child.
B. Name and nationality (art. 7)
1. Constitutional provisions
- The
Constitution generally provides a bill of rights where human and civil rights
are outlined. In particular, section 23 (1) states that “all
children, regardless of the circumstances of their birth, are entitled to equal
treatment before the law”.
Further, section 23 (2) and (3) provides
that “all children shall have the right to a given name and a family name
and the right to a nationality.
Children have the right to know, and to be
raised by their parents”. What the Constitution does not explicitly
provide for is the registration of a child and the acquisition of nationality,
immediately after birth or otherwise,
by a Malawian child.
- Regarding
nationality, section 47 (2) provides that “an Act of Parliament
may make provision for the acquisition or loss of citizenship of Malawi by any
person”.
Acquisition of citizenship is defined in
section 47 (3) (a) as including acquisition by birth, descent,
marriage, registration, naturalization or other means prescribed by an Act of
Parliament.
2. Other legal provisions
- The
Births and Deaths Registration Act, cap. 24:01 requires a register to be kept in
every district and the birth of a child born alive within the district to be
entered
therein. The Act places the duty to register the birth of a child on
the parents, where registration is compulsory. Under the Act
registration is
compulsory only for children of people who are not of African
origin.
- Citizenship
is governed by the Malawi Citizenship Act, cap. 15:01. This Act provides in
section 4 that a person born in Malawi after
5 July 1966 is a
citizen of Malawi and section 5 provides that a person born outside Malawi
after 5 July 1966 is a citizen of Malawi
at birth if his or her father
or mother is a citizen of Malawi by birth. Further, the Act provides that any
Malawian citizen may
register a child as a citizen of Malawi.
3. Progress and constraints
- All
children in Malawi generally enjoy the right to a name. Traditionally, a child
is given a name on the eighth day after birth.
A first born is given a name by
the paternal side and the second by the maternal side. When a child is born out
of wedlock and
the father denies responsibility, the child may go without an
official name for some time. In some cases, children are given derogatory
names
or names that are meant to remind parents of the circumstances surrounding the
birth of the child. All children are given
family names. However, some
children who are not cared for by their fathers or whose fathers denied
responsibility are given maternal
family names.
- Along
the same lines, some children do not enjoy the right to know their parents.
This is mainly true for children born out of wedlock
whose father denied
parental responsibility or did not make an effort to care for the child before
and after birth. To ensure that
the child does not know his father, the surname
given is not that of his or her father.
- The
right to be cared for by their parents is enjoyed by most of children. However,
most of the burden is borne by mothers, even
where the father is available.
Culture, poverty and parental illiteracy deny many children this right. Sending
children from towns
to relatives (mainly parents) in villages and sending
children to relatives and older children from villages to towns are common
practices. While these practices fall under social obligation for those who
take the responsibility, the affected children are clearly
denied their right to
be cared for by their parents.
- Regarding
registration, not many parents see the need for registering the birth of their
children. However, in recent years some
parents, mainly those that are
employed, are registering their children in order to have birth certificates,
which are usually required
for the processing of identity cards, passports or
insurance claims.
- Only
4,500 child registrations were recorded in 1998. Reasons for the low
registration rate include ignorance of the existence of
the Births and
Registration Act, distance to the registration centres (district headquarters),
the long processing time due to bureaucratic delays between the offices
of the
District Commissioners and the Registrar General, the low literacy rate and
little official use of such registration.
- At
the moment, registration of birth is not compulsory except for nonAfrican
children. There is a project called Vital Registration
System, which started in
1997 in three pilot districts, Nkhata Bay, Ntchisi and Nsanje. The objective is
to register births and
deaths. This data was collected by village
heads.
C. Preservation of identity (art. 8)
1. Constitutional provision
- Section 23 (2)
provides the right to nationality to a child at birth. Apart from the
provisions in section 23 (2), there is no provision
for the
reestablishment of identity. Even when a child takes a surname that is not his
or her father’s, there is no law that
can make him change
it.
2. Other legal provisions
- The
Change of Name (Restrictions) Act lays down the procedure to be followed when
one wishes to change his or her name. It precludes
any person who is less than
21 years from applying for approval of change of name. The Act requires a wife
or a child to seek approval
of the husband or father, respectively, in order to
change their name.
3. Progress and constraints
- The
Government has not introduced national identity documents for Malawians, other
than passports and driver’s licences and
not many people have these two
documents. These two forms of identities are available upon application or
after a successful driving
test, respectively, and are issued after payment of a
prescribed fee. Further, up until recently, children could not have their
own
passports, but merely had their names endorsed in their parents’
passport.
- Factors
which limit the availability of these two identity documents are the fees
payable, the distance to the places where these
documents are processed and the
time it takes to have the documents processed. Both passports and
driver’s licences are issued
only in two cities of the
country.
- However,
it is not mandatory for every citizen to have an identity document, although one
is required to produce some credible identity
when doing some
transactions.
D. Freedom of expression (art. 13)
1. Constitutional provisions
- Section
35 provides that “every person shall have the right to freedom of
expression” and section 26 provides that “every
person shall
have the right to use the language and participate in the cultural life of his
or her choice”.
2. Other legal provisions
- The
National Youth Council Act (1996) provides for the holding of an assembly by the
youth. There is, however, other legislation
that limits that right for the sake
of protecting the integrity of others, the State and the President. This
legislation includes
the Sedition Act, the Official Secrets Act and the Penal
Code. The Censorship Board Act limits the right to pass information across
the
borders.
3. Progress and constraints
- Malawi
comprises people of different tribes speaking different local languages and
dialects. There is no provision in the Constitution or any other legislation
for a national and official language. However, in practice, English is the
official language and Chichewa
is the commonly spoken language and is the
firstchoice language of translation. The use of the two languages only limits
freedom
of expression to a very limited extent.
- At
the national level, children have some channels where they can express their
views and opinions. Both print and electronic media,
the radio and some
newspapers have specific programmes and columns, respectively, which deal with
children’s issues. Many
youth organizations have been established to act
as conduits for children’s freedom of expression. In 1998 youth
organizations
held their first general assembly and the minister responsible for
youth was in attendance at the opening. The Assembly gives youth
and children a
forum to express and discuss issues concerning their welfare and also to express
their views on certain issues to
the Government.
- However,
at the community and household levels, the culture does not permit children to
express their views unless they are requested
to do so. Only a few educated,
carefree and culturally “disoriented” parents, mostly in urban
areas, give their children
freedom of expression. It is also in urban areas
where youth organizations flourish.
- In
educational institutions, there is some form of freedom of expression. Pupils
in primary and secondary school use various forums,
like clubs. There are also
established channels in these schools that are used by school children to convey
their views to the school
administration.
- There
are no other channels for children as a group or a child to express their or his
or her views at the community level.
E. Freedom of thought, conscience and religion (art.
14)
1. Constitutional provisions
- The
Malawi Constitution has two sections on this subject. Section 33 provides
“the right to freedom of conscience, religion, belief and thought and to
academic freedom to every person”.
Section 34 provides “the
right to freedom of opinion, including the right to hold opinions without
interference, to hold, receive and
impart opinions to every
person”.
2. Other legal provisions
- Section
61 of the Education Act, cap. 30:01 provides that religious instruction shall be
given in every government and assisted school. Indeed the minister responsible
for education prescribes the syllabus for religious instruction in government
schools. However, the Act makes provision for excusing
any pupil from attending
religious workshop and religious instruction at
- the
school, at the request of that pupil’s parents. The Act further
stipulates that the section may not apply to any school
or classification or
type of school or pupils of particular religious persuasion.
3. Progress and constraints
- Children
tend to follow the religion of their parents and may not freely change their
religion. When the children grow up they may
change their religion. This may
not be so easy in the case of some religions, but there is nothing in the laws
of Malawi that prohibits
a child from changing his or her religion. Generally
this right is not enjoyed fully by children, as parents feel betrayed if their
children change religious affiliation on their own.
F. Freedom of association and peaceful assembly (art.
15)
1. Constitutional provisions
- The
Malawi Constitution, in section 32, provides that “every person shall
have the right to freedom of association which shall include the freedom to form
associations.
No person may be compelled to belong to an association” and
section 38 provides that “every person shall have the right to
assemble and demonstrate with others peacefully and
unarmed”.
2. Other legal provisions
- The
National Youth Council Act provides for freedom of association by the youth. It
provides for the formation of youth organizations.
The Cooperatives Act and
Trade Unions Act also provide for freedom of association and peaceful assembly.
Children can form and join cooperatives and
can join and form unions under this
legislation.
3. Progress and constraints
- Since
1995 Malawi has experienced the sprouting of many youth associations throughout
the country. These youth associations deal
with many issues concerning children
and youth, including dissemination of the rights of the children. The
Constitution creates a favourable environment for the association of youth and
children. The Ministry of Gender, Youth and Community Services
has a
Children’s Section that deals with children’s issues, including
their organization. The National Youth Council
of Malawi also works with youth
organizations. The Human Rights Commission also has a section dealing with
children’s rights.
Pupils in secondary schools and students at the
University have been demonstrating and holding marches over issues of concern to
them. Society generally approves of
demonstrations.
G. Protection of privacy (art. 16)
1. Constitutional provision
- The
Malawi Constitution, in section 21, provides that “every person shall
have the right to personal privacy which shall include the right not to be
subject to:
(a) Search of his or her person, home or
property;
(b) Seizure of private possessions;
or
(c) Interference with private communications, including mail and all
forms of telecommunications.
2. Other legal provisions
- This
right to privacy is subject to lawful search of arrested persons as stipulated
in section 21 of the Criminal Procedure and Evidence
Code. Section 26
of the Code provides that if the arrested person is a woman or a girl, only a
female police officer can conduct
the search.
3. Progress and constraints
- By
and large, children are accorded this protection. The enjoyment increases with
age. Wherever possible, boys and girls are assigned
separate rooms and houses.
Only when parents suspect that their children are abusing this right do they
“invade” the
rooms or houses for spot checks. Girls and boys are
also permitted to write and receive letters. Generally parents discourage
correspondence
between boys and girls as this is thought to disturb their
education. Consequently, parents disregard the right by opening and/or
reading
the child’s letters. This is thought to be in the best interest of the
child.
- Children
living on the street do not enjoy the right to personal privacy since they do
not have shelter and sometimes sleep in open
places. This is also true for
children of poor families living in a small house with a large family. In some
cases a whole family
has a oneroomed house. To create some form of privacy,
even for the parents, the one room is demarcated only by a piece of cloth
or
mat. Where a big family lives in a house with two rooms all the children,
regardless of their sex and age share one room.
- The
social development of street children and those living and sleeping in crowded
and mixed rooms is negatively affected because
of this lack of
privacy.
H. Access to appropriate information (art. 17)
1. Constitutional provisions
- Section
37 of the Malawi Constitution provides that “subject to any Act of
Parliament, every person shall have the right to all information held by the
State or
any of its organs at any level of Government insofar as such
information is required for the exercise of this right”.
2. Other legal provisions
- The
Broadcast Act and the Communication Act do not explicitly provide for access to
information. There is, however, other legislation
that limits access to
information and material considered harmful.
- The
Penal Code, section 46, gives the Minister power to prohibit importation of
publications that in his opinion would be contrary
to public opinion.
Publications include records, cinematography films/video tapes and textile
fabrics. Some of the publications
have had their ban lifted after 1994. Malawi
has, however, a very small list of banned material.
- The
Censorship Board established under the Censorship and Control of Entertainment
Act, cap. 21:01 censors plays, films, publications,
pictures, statues and
records. It also provides theatre licences, premises licences and certificates
of approval for cinematography
films and videotapes. Attached to the
certificates of approval are classifications of the films and conditions. The
Official Secrets
Act makes it an offence to communicate information that is an
official secret and this includes matters relating to the defence and
security
of the country. The Education Act, through the curriculum, also limits the
access by providing what type of information should be made available to
children.
3. Progress and constraints
- Generally,
children get information from parents, peers, communities, schools and colleges,
the media and libraries. At community
level and traditionally, children also
access important information (especially about moral values) from initiation
rites, oral literature
through songs, story telling and riddles. At the
national level, children have access to a number of children’s magazines
and, of late, the radio has been used as a source of information for older
children. Alongside this rather positive development,
is the availability of
harmful material in the form of books and video shows.
- A
lot of videotapes are imported and shown to all ages without the Censorship
Board’s approval and licence. Due to lack of
capacity and resources, the
Censorship Boards and the police are unable to enforce the provisions of the
Act. Many children, especially
in urban areas, have access to violent and
pornographic video material, to the detriment of their social
development.
I. Torture and inhuman or degrading treatment or punishment
(art. 37 (a))
1. Constitutional provision
- Section
23 (4) states that “children are entitled to be protected from ... any
treatment ... or punishment that is likely to (a) be hazardous,
(b)
interfere with their education and (c) be harmful to their health, or to their
physical, mental or spiritual or social
development”.
- Further,
section 19 provides for the inviolability of the dignity of all persons, respect
for human dignity in judicial proceedings and enforcement of
penalties, and
protection from torture, punishment or treatment that is cruel, inhuman or
degrading. It also provides for protection
from corporal punishment in judicial
proceedings or any other proceedings.
2. Other legal provisions
- Despite
the Constitution making corporal punishment illegal, the Acts which impose
corporal punishment have not been amended. For instance, under the Children
and
Young Persons Act, a juvenile offender can be sentenced to corporal punishment
(by the High Court). Under the Penal Code, the
sentences for the offences of
rape and attempted rape are death and life imprisonment with or without corporal
punishment, respectively.
3. Progress and constraints
- The
public generally feels that corporal punishment is appropriate for child
character building if just talking to them is not effective.
In schools,
especially primary and secondary schools, corporal punishment is still
applied.
- So
far, no case has come up challenging the legality of corporal punishment but one
would assume that should that happen the courts
would easily declare corporal
punishment unconstitutional, therefore illegal since the Constitution is the
supreme law of the country.
VI. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. Introduction
- This
chapter discusses the situation of Malawian children in relation to articles 5,
9, 10, 18, 19, 25, 27 (a) and 39 of the Convention.
It partly analyses the
kind of guidance and support that not only the institution of the family but
also members of the community
offer to children. It also analyses the
mechanisms put in place to ensure family reunification, the contact of children
with both
parents in the event of the separation of their parents, and
alternative care for children removed from the family environment, inter
alia. The respect and support of government policies and programmes
visàvis the articles in question is also discussed.
- The
main emphasis is on the enjoyment of these rights visàvis the standards
provided in the Convention and factors that have
affected implementation of the
Convention. Data and statistics on most of the indicators is not available.
Most of the figures
provided in this chapter are based on some research done in
early 1993.
B. Parental guidance (art. 5)
1. Constitutional provisions
- Section
22 (1) and (2) states that “the family is the natural and fundamental
group unit of society and is entitled to protection by society
and the
State” and that “each member of the family shall enjoy full and
equal respect and shall be protected by law against
all forms of neglect,
cruelty or exploitation”.
2. Other legal provisions
- The
Common Law puts the responsibility for bringing up a child in line with its
cultural heritage on the parents. The Penal Code,
in section II recognizes
the need for parental guidance.
3. Policies and programmes
- There
is no specific policy that provides for parental guidance. This is mainly
because parental guidance has culturally been taken
for granted. Lack of
parental guidance is mainly a recent phenomenon. Programmes that come close to
parental guidance are also
recent and confined to urban areas where the problem
of lack of parental guidance is surfacing. The Early Childhood Development
Policy in Malawi recognizes that, all along, the family has been the key, if not
the only, institution that provides parental guidance
consistently.
- A
few family welfare programmes are provided by the Government and by NGOs. These
programmes contain a family counselling services
component. However, these
counselling services are mainly confined to urban areas and mostly geared
towards those families that
seek them. There are no awareness campaigns for
parents and children on child rights within family life, except those undertaken
during national events for children, for instance during the commemoration of
the Day of the African Child.
4. Progress and constraints
- In
both the patrilineal and matrilineal systems, parents and members of the
extended family have an obligation to guide, advise and
mould children to become
responsible citizens. In the matrilineal society, uncles and aunts on the
mother’s side also have
a special obligation to provide parental guidance.
In the patrilineal society, the husband and his relatives are more active in
providing
guidance to children. In families that reside in urban areas and away
from relatives, parents/guardians take an active role in providing
guidance to
children, regardless of the type of family system. In both systems, however,
the mother is a critical player in the
provision of parental guidance to her
children, especially at an early age.
- Children
enjoy this right to a very large degree. In general, culture determines the key
players in the provision of guidance. In
the patrilineal society, children
“belong” to the father. As such, both parents are more active in
providing guidance
to the children. While in the matrilineal society, where the
child “belongs” to the mother, the uncles take an active
role in
advising the children. This means that a child, in this case, is denied the
right to be guided by the father as well. The
trend is, however, changing, to
the extent that both parents and relatives on either side provide guidance to
children. On the other
hand, extended family members are becoming less active
providers of guidance as they are concentrating on their own
children.
- In
general, appropriate advice is given in accordance with the age of children.
For instance, much advice concerning adult life is
given to children when they
have reached the age of puberty. This is not necessarily true for children who
do not undergo initiation
rites. In most cases, underage children are pressured
to go through the initiation. During the 30day initiation period, they are
subjected to advice and practices that are harmful to both their emotional and
physical wellbeing. Parental guidance thereafter
cannot be according to age,
because these children feel they are grown up, even physically. This then
limits the effectiveness of
parental guidance.
- The
other factors that limit parental guidance include loss of either parent; no
time allocation for parental guidance by parents
due to busy working schedules
and sheer neglect; and cultural influence. The culture does not encourage
parents freely to discuss
certain issues, especially sexuality, with their
child.
- Parental
guidance also faces resistance, at times, from the child who does not want to be
guided. These situations are mostly as
a result either of a tense relationship
between the parents and the child or of a lack of understanding between the
parents and the
child, or are due to the child keeping bad company. In general,
children are becoming more unruly as parents are becoming less careful
of the
welfare and character of their children.
- Again,
where children have access to television and video shows, it is difficult for
parents to provide guidance according to their
evolving capacities. Children
are exposed to material that is beyond their age. This makes parental guidance
according to their
evolving capacities without effect as children perceive
themselves as being ahead of the parental advice. This is also true when
children are exposed to radio messages which are sometimes quite explicit.
These radio messages are not edited with various ages
and capacities in
mind.
C. Parental responsibility (art. 18)
- Article
18 states that “parents have joint primary responsibility for raising the
child, and the State shall support them in
this. The State shall provide
appropriate assistance to parents in child raising”.
1. Constitutional provision
- Section
23 (3) stipulates that “children have the right to know, and to be raised
by their parents”. This provision entails
that both parents have the duty
to care for and contribute to the upbringing of their children.
2. Other legal provisions
- Under
Malawi’s Penal Code, anyone who is the head of a family and has a child
under the age of 14 years in his or her care must
provide necessities for the
child. These necessities include food, clothes and shelter. The law therefore
does not recognize joint
primary responsibility for raising the child, since
emphasis is on the head of the family. The head of the family might either be
the husband in a marriage or the mother in a single parent family. Failure to
supply necessities is punishable by three years’
imprisonment if the
failure places the lives of the children affected in danger.
3. Policies and programmes.
- The
State does not render direct financial assistance except in special
circumstances to parents and guardians in the execution of
their
responsibilities. For example, the State only provides foster care allowances
to families that are fostering children. A
sum of K200 is given per month to
such families. Government, private companies and some NGOs also assist some
students with bursaries.
Otherwise, there is no countrywide policy and
programme on parental responsibility.
4. Progress and constraints
- Generally,
parents or legal guardians provide for the needs of their children, which
include food, shelter, clothing and psychosocial
needs, to the best of their
ability. There is generally no joint parental primary responsibility for
raising children except amongst
a few educated families. It is the mother in
both the patrilineal and matrilineal societies who has the primary care of
children.
It is common to find most mothers engaging in income generating
activities with a view of providing basic necessities for their
children.
- Most
parents find it difficult to cater for the needs of their children because of
financial constraints. The pervasive poverty makes
parents less able to meet
children’s basic needs. The joint responsibilities of caring for children
are further constrained
by the high proportion of single parent, mostly female
headed, households. As already mentioned earlier, most female-headed households
are characterized by low unstable income, inadequate food stocks and
insufficient family labour.
- The
other factor limiting joint parental responsibilities is culture, especially in
the matrilineal society. Since children “belong”
to the mother,
some fathers do not work hard enough to provide for their children. Polygamy
also limits parental responsibility
for children. The polygamous father mostly
leaves the responsibility with the respective mothers. He is mostly concerned
about
his own welfare at the expense of children. The practice of polygamy, is,
however, on the decline.
D. Contact with parents (art. 9)
1. Constitutional provision
- The
Constitution of Malawi does not specifically provide for the need for the child
to maintain contact with both parents if separation has occurred.
The
Constitution, under section 23 (3), provides for the need for the
children to know and be raised by their parents, which implies that there ought
to be contact
with both parents if the parents are separated.
2. Other legal provisions
- Legally,
a child can be separated from his/her parents if (i) the child is a victim of
indecent assault by one or both his parents;
(ii) a judicial separation or a
divorce occurs between parents; (iii) a custodial sentence has been imposed on
one or both of the
parents; and (iv) a child has been committed to an
institution.
- The
Divorce Act (cap. 25:04) lays down the grounds and procedures for the granting
of a divorce, particularly for those marriages
under the Marriage Act. A claim
for custody of the children can be included in a divorce. The court, mainly the
High Court, takes
the welfare of children into consideration when deciding on
their custody. There is no provision for hearing the views of the child
as far
as custody of the child is concerned. The court will generally give children of
tender age to the mother unless she is morally
bankrupt to the extent of being a
danger to the welfare of children. The court grants the child rights of
visitation to both parents.
A child may also be legally separated from her/his
parents through an adoption order.
3. Progress and constraints
- Separation
of children from parents is traditionally not encouraged. What is culturally
acceptable is the separation of the first
born from parents to grandparents.
Some children of parents in urban areas are commonly sent to their relatives,
mainly grandparents,
in rural areas to stay if the parents fail to take care of
them (financially or socially, i.e. a girl becoming pregnant). It is
also
common for children in rural areas to be sent to their worthier relatives,
mainly in urban areas, to live with them. Such separations
are done in the
spirit of the best interests of the child.
- The
most common cases of separation are those that are forced by cases of divorce.
Realizing the devastating effects, courts are
very reluctant to dissolve
marriages. There are very rare cases where divorce is granted at village head
or chief’s courts.
Efforts are made to reconcile couples for the sake of
their children. In fact many marriages exist “only for the sake of
the
children”. The probability of divorce is reduced if there are children in
the family. Most divorce cases are handled
in magistrate’s courts. In
these courts, customary law is applicable. This law does not favour divorce.
However, when divorce
is granted, this law does not seriously consider the
principle of the best interests of the child.
- The
High Court applies the principle of “the welfare of children as being of
paramount importance” in the granting of
custody of children. In most
cases, the courts use financial resources in the determination of custody of
children. Since most
women have fewer financial resources than men, custody is
mostly granted to the father. The mother, in such a situation, is granted
visitation rights. In practice, her rights are limited by the whims of the
husband or relatives of the husband. Currently, women’s
groups are
lobbying for amendment of the legislation that considers only financial
resources in the determination of custody cases.
Whatever the case, divorces
force children to be separated from either or both parents. Once either parent
remarries, the children
are effectively separated from their
parents.
- In
the case of imprisonment or indecent assault by a parent, the child is sometimes
sent to be cared for by relatives or is sent to
an institution for care and
protection. There is no legal provision that addresses the issue of such
children having contact with
their parents. In practice, parents are encouraged
by social welfare officers to visit their children. However, the limiting
factor
is financial constraints. Most parents are too poor to afford to travel
to visit their respective children in prisons or institutions.
E. Family reunification (art. 10)
1. Legal provisions
- There
is no specific legislation that provides for family reunification, except in
cases of exceptional circumstances such as armed
conflicts, civil wars or social
unrest. The Refugee Act has made provisions for tracing of family members and
reuniting them thereafter.
Generally, the Immigration Act provides for the
rights of either parents or children to leave or enter the country provided they
have valid travel documents.
2. Progress and constraints
- When
Malawi played host to about a million refugees, members of the communities, the
Malawi Red Cross and other NGOs were involved
in tracing family members and
reuniting them thereafter.
F. Illicit transfer and non-return (art. 11)
1. Legal provisions
- There
is no legislation covering the issue of illicit transfer of children, basically
because such cases have been rare in the country.
2. Progress and constraints
- There
have been a few cases of child abduction in Malawi, mostly of boys, who have
fallen victim to foreigners who pose as philanthropists.
The children are
enticed with gifts such as food and clothes and promises of a rosy better life.
Some of the children are abducted
while others are taken out of the country
under the guise of adoption. Most of the children end up being abused.
Loopholes in the
Adoption Act have, in a way, precipitated the illicit transfer
of the children. In an effort to curb this problem, the Government
of Malawi is
taking the alleged culprits to court, apart from reviewing the Adoption Act to
limit intercountry adoption.
- There
has also been some mysterious disappearances of children. The disappearances
are believed to be linked to either witchcraft
or satanic vices. Neither
witchcraft nor satanic worship are outlawed. Further, while customary law
recognizes the existence of
witchcraft, other more formal laws do not recognize
it. Unless the exact cause of the child disappearances is known, there is very
little that can be done to address this
problem.
G. Recovery of maintenance for the child (art. 27.4)
1. Legal provisions
- Although
the Constitution does not have any provision on this, there are Acts that
guarantee the recovery of maintenance for children. These include the
Affiliation
Act (cap. 26:02); Maintenance Orders Enforcement Act and the
Divorce Act (cap. 25:04). The Affiliation Act addresses the maintenance
of
children born outside marriage. The payments are usually ordered to continue
until the child reaches the age of 16 years. Alternatively,
the court could
order a lump sum payment. The Act also provides for the safety and custody of a
child and for fines against any
person contravening court orders. Any person
who has custody of a child and misapplies maintenance money can be
punished.
- The
Maintenance Order Enforcement Act provides for enforcement of maintenance orders
made in Malawi where the person resides in the
United Kingdom or Ireland.
The Divorce Act provides for the custody of children; the court may at any time
make such orders as it
deems fit with respect to the custody, maintenance and
education of a child.
2. Progress and constraints
- A
few cases requiring maintenance for children born outside marriage are brought
before courts. There is generally lack of enforcement
mechanisms for recovery
of maintenance. Many cases requiring maintenance just end up at the community
level, where in most cases
maintenance for the child is left to the mother and
her relatives. Even in cases where maintenance allowances are ordered, the
allowances
are too little to meet the basic needs of the child.
H. Children deprived of a family environment (art. 20)
Box 1. Children deprived of a family
environment
Orphans, destitute children and street children fall into
the category of children deprived of a family environment. In Malawi, an
orphan
is defined as anyone who has lost one or both parents and is under the age of
18. The situation of orphans is worsening due
to increasing deaths of adults,
with AIDS being the main cause. It is projected that the number of children who
will be orphaned
by AIDS will have risen from 140,000 in 1995 to over 300,000 by
the year 2000. Most of the orphans are being cared for by their
extended
families. However, with the increase in the number of orphans compounded by the
acceleration of adult mortality and the
deterioration of the economic situation,
extended families are no longer able to take care of their orphans.
This
problem exists mainly in urban areas. The reasons for abandoning children
include unwanted pregnancies, particularly by student
mothers, denial of
paternity and desertion. The magnitude of the problem is not really known, but
it could not be very alarming.
Children are also deprived of a family environment owing to factors like
poverty, juvenile delinquency and broken homes. There were
over 400 street
children in Lilongwe City alone in 1991. This number has increased
tremendously, although the magnitude is not known.
Of the total,
85 per cent were “hard core” street children who spent
their time on the street undertaking various activities.
Males constituted the
majority of them.
The main activity for both male and female street
children is being used as vendors. While male street children loiter around
(including
pick pocketing), female street children engage in “small
time” prostitution.
1. Legal provisions
- There
are no legal provisions for children deprived of a family environment, like
orphans, abandoned children, street children and
destitute
children.
2. Policies and programmes
- The
1991 policy on orphans recognizes three alternative sources of care for children
deprived of a family environment, as outlined
below.
Extended family system
- This
is the preferred system. The extended family provides, and is encouraged to
continue to provide, care for orphans and children
of poor family members.
Emphasis is placed on assisting or empowering families that take care of
orphans.
Foster care
- A
foster care scheme operates through placement of orphaned and abandoned children
where appropriate. Social workers place and supervise
such children.
Allowances to foster parents are reviewed from time to time. After placement of
abandoned children, the social welfare
officers visit the foster family and
ensure reunification of foster children with blood relatives when they are
found. Where the
latter is not possible, the children may be
adopted.
Institutional care
- Institutional
facilities are used as a last resort, mostly for orphaned children whose
relatives have not been traced and whose lives
are threatened by lack of care.
It is recognized that family care is better than institutional
care.
- The
Government, through the National Task Force on Orphans, constantly reviews and
monitors the effectiveness of the three types of
care for children deprived of a
family environment. In 1996, Government launched an orphan care programme whose
overall goal is
to reduce the suffering experienced by orphans by ensuring that
they are able to grow up in a caring environment in which they are
adequately
provided for and protected physically,
psychologically, socially, morally and legally. The programme generally
supports and encourages families and communities to look
after and provide for
their orphans to the best of their ability.
- The
Government also provides shortterm relief and public assistance to destitute
children and their families in terms of food, shelter,
clothes and transport.
Destitute children are temporarily placed in transit centres en route to their
respective homes. Funding
of the transit centres is the main problem facing
assistance to destitute children.
3. Progress and constraints
- The
Orphan Care Programme operates all over the country. It has established Orphan
Care Village Committees that discuss and implement
activities that assist
orphans at the community level. For example, they run microenterprises whose
proceeds are used for providing
basic necessities for orphans. The main
constraints of this programme include limited funding and the lack of
voluntarism spirit
on the part of communities in some areas.
- There
are also a number of children in foster care. However, there are more children
requiring foster families than families willing
to provide foster care.
Recognizing the need for legislation governing children placed in foster care,
the Government, through the
ministry responsible for children affairs, is
drafting a foster care act.
I. Adoption (art. 21)
1. Legal provisions
- Adoptions
are governed by the Adoption of Children Act. The Act provides that no adoption
should take place where the applicant is under the age of 25 or is less than 21
years older than
the infant in respect of whom the application is made, except
in very special circumstances. It also provides that no sole male
should adopt
a female child and vice versa, unless under very special circumstances. It
further prohibits the adoption of Malawi
children by nonresidents and of
nonresident children by Malawi residents.
- The
process of granting an adoption order is undertaken in a court of law (the High
Court, Resident or First Grade Magistrate Courts).
The consent of the
biological parents, if alive, is sought, but the Ministry of Gender, Youth and
Community Services serves as guardian ad litem in the court
proceedings.
2. Progress and constraints
- Over
the years, experience has shown that legal adoptions are not very common in
Malawi. This is so because orphans culturally become
part of their extended
family. Orphans are mostly cared for by their next of kin, in accordance with
traditional practices. Unfortunately,
the capability of the extended family
system is becoming overstretched because of the great increase in the number of
orphans and
poverty. The extended family system is also being threatened by a
shift towards nuclear families, especially among the educated
and rich who are
the natural providers of assistance in the extended family system.
- As
already mentioned, some adopted children living abroad are being subjected to
various forms of abuse, including physical, verbal,
sexual and economic
exploitation. The present Act is being revised to provide firstly for follow-up
procedures to ensure that the
adoptive home is suitable and secondly the option
of the Government rescinding an adoption order in the case of child abuse or any
other violation of a child’s rights.
- Other
proposed amendments include the following:
(i) The maximum age of a person to be adopted should be 18 years and not 21
years, in order to be in line with the definition of
an orphan, whose maximum
age is 18 years.
(ii) Non-Malawians should only be allowed to adopt a child after the couple has
lived in Malawi for a minimum period of two years
and should stay with the child
for at least 18 months before starting adoptive procedures.
(iii) A period of two years should be provided to enable follow-up on the
adopted children to ensure continued good care, after which
the social welfare
officers will cease to supervise the children. During the period of followup,
the social welfare officers should
submit reports to the court.
(iv) Powers to revoke adoption orders should be vested in the High Court. This
will enable the court to rescind an adoption order
in cases where adoption
followup reports by the social welfare officer strongly indicate that the child
is being abused.
(v) Social welfare officers should be authorized to appeal on behalf of the
child should the follow-up reports indicate the existence
of child
abuse.
(vi) Biological parents should not be allowed to place their children for
adoption privately, to ensure that adoptions are effected
with informed consent
and in a lawful manner.
J. Protection from abuse and neglect (arts. 19 and 39)
1. Legal provision
- The
laws of Malawi provide protection against child abuse, particularly desertion,
economic exploitation and sexual abuse. For instance,
the Penal Code, cap 7:01,
section 138 (1) stipulates that “any person who unlawfully and
carnally knows any girl under the
age of 13 years shall be guilty of felony and
shall be liable to life imprisonment with or without corporal punishment”.
However,
this provision of deterrent punishment is defeated by the Criminal
Procedure and Evidence Code, cap 8:01, section 13, which limits
the criminal
jurisdiction of subordinate courts to passing a maximum sentence of 14 years.
Despite the fact that the subordinate
courts have the desecration of committing
a convicted person to either a higher court or to another subordinate court of
higher grade
than itself for offences it feels need greater
punishment, sexual abuse cases have over the years commenced and ended in
subordinate courts. In these circumstances, magistrates
generally are lenient
in that they pass very light sentences. The average sentence is less than 10
years for convicted child rapists.
2. Policies and programmes
- The
Government of Malawi has no specific policy yet related to the issue of child
abuse. However, government policy in general terms
on this issue is to protect
and safeguard children from abuse. There are some provisions in the National
Early Childhood Development
Policy which address the issue of child abuse. In
this policy, it is stated that in pursuance of the Convention on the Rights of
the Child and other related covenants, the Government, in partnership with other
stakeholders, will:
(i) Disseminate information to the community on what constitutes child
abuse;
(ii) provide counselling services to child abuse victims and their
abusers;
(iii) Encourage parents to report cases of child abuse to the
police;
(iv) Strengthen the police to handle cases of child abuse professionally and
adequately;
(v) Ensure that the law provides stiff penalties to those who abuse
children.
- There
are some programmes run by the Government and NGOs that educate families and
communities about the dangers of child abuse.
For instance, the Community Based
Population Education project has components for sensitizing communities about
problems of child
abuse. Currently these programmes are confined to restricted
areas owing to financial constraints.
3. Progress and constraints
- There
are incidences where some parents or guardians neglect to provide children with
sufficient food, clothes, bedding and other
necessities. Although such cases
occur in the community, unfortunately, not many of them are reported to the
appropriate authorities.
K. Periodic review of placement (art. 25)
- Article
25 states that “a child who is placed by the State for reasons of care,
protection, or treatment is entitled to have
the placement evaluated
regularly”.
1. Legal provision
- The
Children and Young Persons Act (cap 26:03) provides for review of placements of
those children who have been placed in institutions.
This Act also provides for
special court procedures, sittings and sentencing pertaining to a child, as well
as approved homes or
institutions.
2. Progress and constraints
- Some
of the children who are in conflict with the law end up being placed in approved
schools for care and protection. While these
children are at the institutions,
social welfare officers review their case from time to time and recommend their
release once it
is due. Social welfare officers also review the cases of
children who have been placed in foster care. Members of the community
are
generally not involved in the review of placements.
VII. BASIC HEALTH AND SOCIAL WELFARE
A. Introduction
- This
chapter discusses the situation of Malawian children in relation to
articles
6, 23, 24, 26 and 18 and 27. Two sectors are analysed, namely health and social
welfare as they relate to the survival and
development of the
child.
B. Child survival (art. 6)
1. Constitutional provision
- Section
16 of the Constitution provides for the right to life. The Constitution does
not specifically provide for the right to life of a child, but provides for that
right for everyone.
2. Policies and programmes
Health policy framework
- One
of the health policy objectives is child survival. Some of the strategies are
provision of ante-natal and under-five clinics;
maternal care services; child
spacing services; and immunization services for mothers and children. Further,
the policy recognizes
that improvements in nutrition status of mothers and
children increase the changes of child survival. As such, nutrition education
and feeding programmes are the advocated strategies.
- The
Government, in collaboration with NGOs has been implementing programmes that aim
at making a positive impact on child survival
and development. Some of these
programmes are:
- (i) Preventive
health programmes, e.g. community-based primary health care and Acute
Respiratory Infections (ARI);
(ii) Disease control programmes, e.g. malaria, tuberculosis (TB), diarrhoea and
bilharzia, and expanded programmes on immunization
(EPI);
(iii) Reproductive health programme.
(iv) Nutrition programme;
(v) National AIDS control programme.
3. Progress and constraints
- Infant
and child mortality rates are very high by regional and international standards.
According to the Human Development Report
1999, in 1995 the infant mortality
rate was 135 per 1,000 live births and the under-five mortality rate was 215 per
1,000 live births.
In terms of immunization, 70 per cent of children under
five were covered. The prevalence of exclusive breastfeeding for children
under four months of age was 11 per cent in 1995.
Further, 75 per cent of all six- to nine-month old children are
breastfeeding
and receiving complementary food and over 50 per cent of all
children aged 22 to 23 months are still breastfeeding. The prevalence
rate of
diarrhoea among children was 15 per cent in 1995.
- The
three major causes of infant and child mortality are malaria (33 per cent),
upper respiratory tract infections (13 per cent) and
diarrhoea (7 per
cent). Malnutrition related conditions like kwashiorkor and marasmus are
also common causes of death.
In 1995, 48 per cent of children under five
were stunted, while 30 per cent were underweight and 7 per cent were
wasted. Further,
about one third of children born of HIV/AIDS infected mothers
are HIV infected.
- Key
constraints to the survival of children include lack of financial resources and
capacity to implement health programmes, cultural
practices and the HIV/AIDS
pandemic. These problems are compounded by the pervasive
poverty.
4. Cooperating partners
- There
are a number of cooperating partners in child survival. NGOs involved include
CHAM and Save the Children Fund (Malawi, United
States and the United Kingdom).
Key international donors include the World Health Organization, the European
Union, the International
Development Association, the African Development Bank,
the United Kingdom Department for International Development, KfW and the
Government
of Japan.
C. Child development (art. 6)
1. Constitutional provisions
- Section
13 (h) provides for the State to encourage and promote conditions conducive to
the full development of the health of children as members
of society. Section
30 provides for the right to development. It states that children should be
given special consideration in accessing basic resources,
education, health
services, food, shelter, employment and infrastructure and that the State has a
responsibility to justify its policies
in accordance with this
responsibility.
2. Other legal provisions
- Currently,
there is no other legislative provision for child development, even in the form
of an early childhood development act.
3. Policies and programmes
- Malawi’s
first ever programme which has a direct link to the Convention on the rights of
the Child is the National Programme
of Action for the Survival, Protection and
Development of Children in the 1990s adopted in 1993. The Community Based Child
Care
(CBCC) Programme is part of this National Programme of Action. It focuses
on child nutrition, primary health care, early stimulation,
pre-school
education, parent education in early childhood development and reducing the
childcare burden of mothers.
- As
part of the CBCC, the Government formulated and adopted, in October 1998, the
National Policy on Early Childhood Development (ECD).
The policy promotes a
holistic approach to child development. Its strategies
include:
Encouragement of family and committing participants;
Promotion of child health and nutrition;
Advocacy of child rights law reform;
Provision of basic education;
Special measures for children in difficulties;
Facilitation of recreation and play;
Training as a means of capacity building.
4. Progress and constraints
- Since
the early 1990s there has been increased supply of and demand for ECD services.
Although statistics on the numbers of children
receiving and institutions
offering the services are not available, these services are common in urban
areas. English is the main
language of instruction in these institutions.
Children who go through these have a very good head start in primary
school.
- Despite
the popularity of ECD, government priority has been primary education. This is
evidenced by the late adoption of the ECD
Policy and inadequately planned,
funded and weak ECD institutions. The result has been marginalization of the
majority of children
who do not have access to or can afford the fee-paying
privately run ECD centres.
- The
privately run pre-school ECD centres have also had problems of quality and
efficiency, as well as inadequate coverage. Research
shows that from 1970 to
date, only 0.1 per cent of the target population group has
benefited from ECD services.
5. Cooperation with other stakeholders
- Achievements
in ECD have been due to close cooperation with a number of stakeholders. Key
stakeholders include UNESCO, UNICEF and
Save the Children. Other agencies
include Plan International, Church NGOs and the Bernard Van Leer
Foundation.
- UNESCO
focuses on capacity-building through training of ECD personnel, campaigning for
policy development and adoption, production
of pre-school education materials
including the curriculum, syllabus, IEC materials as well as material on special
needs education
at the preschool level and promotion of inter-agency cooperation
through the creation of a national network in ECD.
- UNICEF
mainly focuses on the mother and child. Its support facilitated the
implementation of the CBCC programme, as well as safe
water, immunization and
nutrition projects. The Save the Children Fund has worked to ensure the
realization of the Convention for
all the children of Malawi.
D. Children with disabilities (art. 23)
- Article
23 states that a disabled person has the right to special care, education and
training to help him or her enjoy a full and
decent life in dignity and achieve
the greatest degree of self-reliance and social integration
possible.
1. Constitutional provision
- Section
13 (g) of the Constitution provides that people with disabilities should be
facilitated and assisted to have greater access to public services, fair
opportunities
in employment and the fullest possible participation in all
spheres of Malawian society. Section 30 of the Constitution states that
“children and the disabled in particular shall be given special
consideration on the application of this right
[of
development]”.
2. Other legal provisions
- The
1971 Handicapped Persons Act (cap. 33:02) provides for the establishment of the
Malawi Council for the Handicapped (MACOHA) with
the mandate to improve the
welfare of people with disabilities.
3. Policies and programmes
- There
is not policy yet on people with disabilities. However, the Government, through
the Office of the Minister Responsible for
People with Disabilities, has
commenced a consultation process to formulate a policy on people with
disabilities. The aim of the
policy is to make people with disabilities equal
partners in the creation and sharing of economic development and wealth. Its
objectives
are (i) to promote effective measures for the rehabilitation of
persons with disabilities so that they fully participate in social
life and
development as equals and (ii) to promote effective measures for the prevention
of disability.
4. Progress and constraints
- A
few children with disabilities enjoy the rights stipulated in the Convention.
These are those who were privileged to go through
the education system and
vocational training programmes. Some of the agencies that contributed to this
are the Malawi Council for
the Handicapped, NGOs like Malawi Against Polio and
the Cheshire Homes. Mission schools and colleges have enabled a number of
people
with disabilities to be productive contributors to the country’s
development. A few others have acquired some technical skills
of their own and
are mostly integrated.
- However,
the majority of children with disabilities face problems of access to public
services. The main stumbling block is attitudes
of the society. Culturally, a
child with disabilities is considered a “curse”. Consequently, care
for such a child
is not optimal. Other problems faced by children with
disabilities include:
(i) Less friendly infrastructure;
(ii) Low coverage of other specialized assistance;
(iii) General unwillingness by community members to integrate children with
disabilities in their various activities.
- Just
as in many other areas, targeting of resources to children with disabilities is
rather problematic because of the lack of disaggregation
of data by gender, age,
rural/urban area, social level and region.
E. Access to effective health services (art. 24)
1. Legal provisions
- Section
13 (b) provides for the State to achieve adequate nutrition for all in order to
promote good health and self-sufficiency,
while section 13 (c) provides for the
State to provide for the health needs of Malawian society and international
standards of health
care.
Box 2. Health delivery system
There are several tiers in the
health delivery system. The first tier is at community level where the
Government has health surveillance
assistants that serve a catchment area with
growth monitoring kit and other health-related services like immunization, water
and
sanitation. Health personnel from health centres in the third tier service
health posts. The second tier is health units, which
have skeleton health
personnel basically to serve as a first stop for minor cases. The third tier is
the health centres, which have
medical assistants, health assistants and
community health nurses. Health centres are the major service providers to the
rural communities.
These first levels are categorized as primary health
facilities. There are about 400 primary health facilities.
The
fourth tier is district hospitals. Apart from serving as primary health service
providers for those around them, these hospitals
are referral hospitals for the
health centres. There are currently 21 district hospitals. The fifth tier is
central hospitals that
are meant to be referral hospitals although they also
serve populations surrounding them. Currently, there are three central
hospitals
and one central mental hospital.
|
2. Policies and programmes
- Primary
health care (PHC) has been the key area on which the Ministry of Health has been
concentrating. PHC focuses on preventive
health, maternal and child health,
provision of safe water and sanitation using strategies like drug revolving
funds, vulnerable
group feeding and basic curative services offered in health
centres, health units and district hospitals. Programmes such as vulnerable
group feeding, immunization programmes, ante-natal clinics and growth monitoring
services fall under preventive health services.
The primary health care concept
has been a central mechanism through which most of the policies and plans for
women and children
have been delivered.
3. Progress and constraints
- There
are just over 300 primary health facilities. In 1996, there were 302 facilities
with 450 enrolled nurses/midwives, 236 medical
assistants and 152 health
assistants. There were 124 enrolled community nurses, 23 assistant
environmental health officers and 2,627
health surveillance assistants in all
these facilities. These numbers leave a shortfall of 46 nurses, 344 medical
assistants and
138 health assistants.
- There
were only 20 medical specialists, all stationed in central (referral) hospitals.
There were also 58 medical officers at the
central hospital. The country had
only three pharmacists. Two of these are in administrative positions. In fact,
it is only enrolled
nurses that are in good supply, although not necessarily
adequate.
- The
median distance to a health facility is about five kilometres, while about 50
per cent of the population have access to safe drinking
water within one
kilometre. The major constraints are availability of drugs and paramedicals and
lack of materials in general.
Most rural facilities lack basic materials and
operate below minimum levels. In terms of access to a mere health facility, the
situation
is still worse. There are currently 922 health facilities for a
population of 10 million. (See table 6.)
Table 6. Health facilities in Malawi, 1998.
|
MOHP
|
NGOs and private
|
TOTAL
|
%
|
|
|
CHAM
|
Others
|
|
|
Central hospitals
|
3
|
0
|
0
|
3
|
0.33
|
District hospitals
|
21
|
0
|
0
|
21
|
2.39
|
Mental hospital
|
1
|
0
|
0
|
1
|
0.11
|
Rural hospitals
|
20
|
21
|
0
|
41
|
4.34
|
Other hospitals
|
0
|
19
|
9
|
28
|
3.04
|
Health control
|
236
|
87
|
66
|
389
|
42.19
|
Maternity units
|
12
|
10
|
48
|
70
|
7.59
|
Dispensaries
|
54
|
14
|
277
|
345
|
37.42
|
Health posts
|
15
|
0
|
9
|
24
|
2.60
|
|
|
|
|
|
|
Share (%)
|
39.3
|
16.4
|
44.4
|
100
|
|
Source: Ministry of Public Health, Health Information/System
Database.
F. Social security (art. 26)
1. Policies and programmes
- The
Government and NGOs have been running programmes that target vulnerable groups
like children and expectant and lactating mothers.
The common ones are the
vulnerable group feeding, supplementary feeding, school feeding and free food
distribution programmes.
The Government also offers free medical services to
the population. In emergency situations, the Government runs free food and
agricultural
inputs distribution programmes. There is, however, no policy or
coordinated programme for social security or social insurance.
2. Progress and constraints
- Formal
social security does not exist in Malawi. there are no unemployment benefits
and free medical services act as the country’s
health insurance.
Consequently, there are no legal provisions, policies or programmes. The main
constraint is financial resources.
Notwithstanding the funding problems, the
Government has a full-fledged agency that deals with emergency situations like
floods,
drought and other disasters.
- On
the personal level, what are available are insurance schemes and programmes that
assist the poor. A proportion of the employed
have private and company
sponsored insurance schemes and retirement benefits. In some rural areas the
poor have access to NGO or
government sponsored public works programmes for cash
or food and free distribution of food and inputs. However, the coverage of
these programmes is very low. Currently, the Government is developing a safety
nets programme that will act as a social security
measure for the
poorest.
- The
Government has recognized the chronic nature of poverty in the country. As a
result, it is formulating a policy and programme
that would address the basic
needs of the poorest of the poor and those that may be affected by
disasters.
G. Standard of living (art. 27)
1. Legal provisions
- Section
13 of the Constitution recognizes the need to promote the welfare and
development of children so as to ensure to them an adequate standard of living.
Specifically,
section 13 (e) provides for the State to enhance the quality of
life in rural communities and to recognize rural standards of living as a key
indicator of the success of government policies. Apart from the Constitution,
the Affiliation Act ensures that children have an adequate standard of
living.
2. Policies and programmes
- Almost
all economic policies have the raising of the standards of the living of the
population as their objectives. The Government
and NGOs have been addressing
problems faced by vulnerable children through programmes like the vulnerable
group feeding, school
feeding and free food distribution programmes. There is,
however, no policy or coordinated programme for social security or social
insurance. Other programmes that may fall under social security include free
medical services, and free and subsidized agricultural
inputs. The proposed
policy and programme on safety nets will assist in addressing the problem of the
low standard of living.
3. Progress and constraints
- The
standard of living in the country is very low. Income distribution is very
skewed against the majority of the poor. Income inequality
as measured by the
gini-coefficient is at 0.62. This is very high by international standards.
Again, about 60 per cent of the population
are poor. Children in poor families
suffer, as manifested by high malnutrition levels, and high infant and child
mortality rates.
VIII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES
A. Introduction
- This
chapter discusses the position of Malawi vis-à-vis articles 28, 29 and 31
of the Convention on the Rights of the Child.
It presents a situation analysis
of the rights of the child to leisure and education that is relevant to
cultural, national and
international standards. The discussion centres around
what instruments, institutional set-up and collaboration strategies the country
has put in place to ensure that the set rights are
fulfilled.
- The
main instruments are the Constitution of Malawi, the laws of Malawi and relevant
policies and programmes. As regards institutional set-up, the emphasis is on
monitoring
strategies and mechanisms that have been put in place, progress
achieved in the implementation of the Convention and factors that
have affected
or continue to affect the implementation of the Convention.
- The
discussion also highlights the cooperation between government
ministries/departments, the Government and NGOs, the Government
and local
authorities and the Government and donors regarding the issues raised by these
three articles of the Convention. The emphasis
is on the nature and extent of
the cooperation.
B. Right of a child to education (art. 28)
- This
chapter will discuss all levels of education since article 28 refers to all
levels of education. This implies that the discussion
will ignore the fact that
some students in higher education are not children as defined in the
Convention.
1. Legal provisions
- The
Constitution sufficiently provides for this right. For example, section 25 (1)
entitles all persons to education. Likewise, section 13 (f) of the Constitution
calls upon the State to provide adequate resources for free and compulsory
education, while section 23 (4) provides for protection from any form of
activity or punishment that would interfere with their
education.
- The
Education Act, however, is out of date. Enacted in 1926 and revised in 1968, it
does not provide specifically for primary education, let alone
free and
compulsory education. What it provides are general principles, like promoting
education, educating the inhabitants, progressively
developing schools and
ensuring effective execution of the education policy of the Government. This
Act is under review.
Box 3. Structure of the education system in Malawi
There
are three levels of formal education in Malawi, namely, primary, secondary and
tertiary education. Pre-school education which
is part of Early Childhood
Development is considered as a vital element of education, although it is
informal. Pre-school education
in Malawi is for children between two years and
six years of age. It is loosely structured and streaming is usually according
to
age and capacity of the child. Most of the services offered fall within such
broad categories as nurseries, day care centres, crèches,
kindergartens,
play groups and pre-primary education.
Primary education has eight steps,
called standards. The eight standards are further categorized into infant (one
and two), junior
(three to five) and senior (six to eight). The secondary
school level has four forms. Forms one and two are referred to as junior,
while
forms three and four are senior. Tertiary education generally refers to any
education that is dependent on successful completion
of either junior or senior
secondary school. These include university (or higher) education, vocational
and technical education
including apprenticeships and training colleges. Up
until 1998, only the University of Malawi offered university education, through
its five constituent colleges. The minimum period for a diploma is three years
and a degree requires at least four years. Other
programmes take as many as six
years. Some faculties and programmes offer a master’s degree for a
minimum of two years. Mzuzu
University has just started and is likely to be
structured along the University of Malawi lines.
Promotion in primary
school is dependent on a pass in end-of-year examinations and secondary school
enrolment is dependent on a pass
in primary school leaving certificate
examinations (PSCLE). Secondary education is offered by conventional secondary
schools (CSS),
private secondary schools (PSS) and the Malawi College for
Distance Education through distance education centres (DECs), night schools
and
home study. CSS are government or government-assisted day or boarding secondary
schools. Enrolment in CSS depends on government
selection, unlike DECs and PSS
that only require a pass in PSCLE. Junior certificate examinations (JCE) are
taken after completing
form 2. A pass in JCE is required for enrolment in
senior secondary school and some tertiary education institutions like vocational
and technical education institutions and some training programmes like junior
primary teachers, medical and health assistantship
training programmes. Good
passes are required for selection and promotion into form three.
The
Malawi school certificate examinations (MSCE) are taken after completing form 4.
A good pass (at least six credits, including
English) enables one to be
short-listed for university entry examinations used for University of Malawi
selection. Apart from the
university, enrolment in various training colleges
including apprenticeship training at Polytechnics Board of Governors depends on
performance in the MSCE. Some training colleges are subject-oriented. Key ones
are the Natural Resources College (agriculture),
Magomero Training College
(community development), teacher training colleges (primary education), Malawi
College of Forestry (forestry),
Malawi College of Health Sciences and nursing
schools and colleges (health). Others colleges include the Malawi College of
Accountancy
and technical colleges.
The recommended age for starting
primary education is six years. If a child starts at age 6, she/he gets a
diploma from a university
college at 20 years of age and a degree at 21 years.
However, the proportion of those that make it at that age is small because
the
education system is saddled with internal inefficiencies and poor quality. Many
rural children, for example, start when they
are older than six to ensure that
they are old enough to walk the long distance to and from school. For instance
in 1995, only 51
per cent of children entered school at the correct age.
Further, repetition rates are very high, as high as 20 per cent for standard
8
and primary-secondary transition rates are very low, only 14 per cent in 1997.
Even in secondary education there are some problems
as evidenced by pass rates
of 80 per cent for JCE and less than 40 per cent for MSCE in
1997. Some who fail are forced to repeat
if they are to progress with their
education. It is not uncommon to find first degree graduates in the age
group of 25-30 years.
(At university level, there is some repetition but to a
small extent, i.e. less than 5 per cent in 1997.)
|
2. Policies and programmes
- Policies
outlined herein are from the current official education policy, namely the
Policy and Investment Framework (PIF) 1995-2000.
Some reference is made to the
draft education policy that is to take effect in 2000, i.e. PIF
2000-2005.
Primary education
- The
PIF policies and strategies relate to access, equity and internal efficiency.
Free and compulsory primary education falls under
access and equity. One of the
targets in the PIF is directly related to article 28 of the Convention. The
policy target is to achieve
a 90 per cent coverage of children by the end of the
century by introducing free and compulsory primary education for children aged
6
to 13 years, i.e. standards 1 to 8, among other strategies.
- After
the ratification of the Convention, the Government introduced a school fees
waiver scheme, in 1991-1992 for standard 1 and up
to standard 4 by 1993-1994.
At the same time, the Government, with donor support, embarked on a project
(Girls Attainment in Basic
Education and Literacy, popularly known as GABLE)
that was meant to encourage girls’ school enrolment and reduce their
dropping
out. The project paid school fees for all non-repeating primary school
girls and also mounted a vigorous social mobilization campaign
to encourage
girl-child education. In 1994, the new Government introduced a programme called
Free Primary Education (FPE). The
FPE programme abolished the payment of
tuition and all forms of charges and also abolished a school uniform
requirement.
Secondary school
- The
PIF encourages the development of conventional secondary schools (CSS), distance
education centres (DEC) and private secondary
schools (PSS). Under CSS, the PIF
is encouraging the development of day (non-residential) and boarding secondary
schools. Special
emphasis is, however, on community day secondary schools. It
also advocates the decentralization of secondary school management
and the
establishment of private secondary schools.
- The
current policies do not provide for free secondary education. If anything, the
move is towards increased parent contribution.
Currently, the
Government’s subsidy of secondary education is well above 50 per cent.
The policy on cost sharing states that
school fees should be reviewed with the
intention of decreasing government subsidy to 50 per cent of the cost of
providing secondary
education; and that book user fees should be constantly
reviewed to increase the parental contribution to 50 per cent. Thus free
secondary education is not being envisaged in the policy.
- The
provision of financial assistance to needy children for secondary education is
not mentioned in PIF. The Government and local
government offer some bursaries
to needy children, but this is to a very limited extent. Many needy children
have failed to continue
with their education despite this bursary scheme. What
is apparent is that the Government is concentrating its efforts on primary
education.
- The
sub-issues of access and equity are adequately provided for in PIF. The targets
for access to secondary education include:
(a) Achieving a net
enrolment ratio of 10 per cent by 2005 from a net enrolment rate of 1.5 per cent
and a gross enrolment rate of
4 per cent in 1995; and
(b) Achieving a
transition rate of 15 per cent by 2000 and 30 per cent by 2005 for each
district, from a transition rate of about
11 per cent in 1995.
- The
strategies and programmes to achieve the targets include:
Conventional secondary schools
(i) Giving priority to the provision of only day
secondary schools;
(ii) Building 63 more schools in rural areas with 8,760 places by 2000;
(iii) Building 10 urban and peri-urban day secondary schools with 2,400
form 1 places by 2000;
(iv) Building a total of 250 day secondary schools by 2005;
(v) Encouraging the establishment of quality private
schools.
- The
Government is also committed to improving access to school, especially for
girls. To demonstrate this, it has abolished the policy
of expelling pregnant
girls from school. Instead they are allowed to come back after delivery.
Research had revealed that the policy
alone was responsible for 76 per cent of
school drop-out by girls.
Distance education schools
(i) Encouraging community
involvement in building school blocks and teachers’ houses, with the
Government providing materials;
(ii) Exploring the possibility of establishing private distance education
centres.
- With
regard to equity, the target is to reach a girls’ quota of 50 per cent in
secondary schools by constantly increasing the
quota from 33 per cent in 1995
and continuing to pay for needy girls.
Other strategies include:
- (a) Continuing
to integrate children with special needs in conventional secondary schools and
adopting the architectural design of
new schools to take into account children
with special needs;
(b) Revising the curriculum and developing
instructional materials to cater for girls and children with special
needs;
(c) Redesigning and increasing school facilities to cater for the
increasing numbers of girls and children with special
needs;
(d) Strengthening guidance and counselling services in order to
address the academic, psychological and socio-cultural needs of the
youth,
especially girls and children with special needs, by offering training courses
to teachers in guidance and counselling techniques.
- Thus
the strategies and programmes under access and equity are meant to ensure equity
in access to secondary education. However,
it is clear that the poor who cannot
afford secondary education have not been taken care of.
Vocational and technical education
- Technical
and vocational training in Malawi received low priority in the past and was
characterized by minimal involvement of the
private sector, non-responsive
institutional structures, outdated curricula, inappropriate legislation and an
unsuitable financial
base. In October 1998, the Government, through the
Ministry of Labour and Vocational Training, in cooperation with key
stakeholders,
formulated a new policy and programme. Its aim is to provide
requisite competencies necessary for full participation. Government
has
established an independent and autonomous Technical, Entrepreneurial and
Vocational Education and Training (TEVET) system. The
idea is to have an
integrated, demand driven and sustainable system that responds to personal
development needs, as well as labour
market trends.
- Vocational
training has been offered through technical colleges run by the Government, NGOs
and private organizations. Other specialized
government agencies such as the
Development of Malawian Traders’ Enterprises (DEMAT), the Small Enterprise
Development Organization
of Malawi (SEDOM) and the Malawi Entrepreneurs
Development Institute (MEDI) focus on combining the provision of basic
vocational
and technical skills with training in management and marketing.
However, only very few youths have benefited from such courses because
of high
fees, and inadequate facilities. The Malawi Council for the Handicapped
(MACOHA) also targets youth with disabilities.
MACOHA offers literacy classes
and training in weaving, soap making, knitting, tailoring, carpentry and
joinery, metal work, welding
and agriculture. It also offers career guidance
for those with high levels of literacy.
Higher education
- Policies
and strategies on university mention access. The current mission statement for
the university calls for diversification
of programmes to cater for a wide cross
section of society. Strategies on access
include:
(a) Diversifying university programmes to increase
enrolment;
(b) Encouraging women to enrol in male-dominated
courses;
(c) Providing learning and teaching materials and facilities
for children with special needs, so as to increase their
enrolment;
(d) Encouraging the establishment of private institutions of
higher learning;
(e) Introducing correspondence courses and a credit
system to allow for home study.
- While
these are positive strategies for access, the policy of increased cost-sharing
(increased contribution paid by the student)
is also being emphasized. It
cannot be said that costsharing will reduce general access to higher education
because the implementation
of this policy is to be accompanied by some loan
schemes for the needy.
4. Progress and problems
Primary school
- The
policies and programmes prior to free primary education (FPE) programme did not
have a significant impact on primary school enrolment.
Since 1994, with the
introduction of FPE, enrolment increased tremendously. However, the disparity
between boys’ and girls’
enrolment, despite some improvements over
the years, has stagnated at 53:47. The introduction of community schools is
also having
a major impact on rural children, who were otherwise cut off from
education facilities. (See table 7 for the details.) In 1994-1995
the net
enrolment ratio was 71 per cent and it is estimated that by 1997 the ratio had
gone to 100 per cent. The gross enrolment
ratio has been over 100 per cent
since 1994-1995.
- There
has been little progress made in the area of access and equity, especially for
children with special needs. Even for those
with some access, the
infrastructure is not user friendly and most of the teaches are not trained to
cater for children with special
needs.
- Further,
the quality of education has deteriorated as resources are over-stretched. The
increased enrolments overwhelmed the primary
school system in terms of teaching
and learning materials, classrooms and teachers. Most of the schools are in a
poor state of repair
and they are unevenly distributed.
Table 7. Primary school enrolment since 1988-1989
|
Total (No.)
|
Growth (%)
|
Boys (%)
|
1980/90
|
1 325 453
|
10.2
|
55
|
1990/91
|
1 400 682
|
5.7
|
55
|
1991/92
|
1 662 583
|
18.7
|
54
|
1992/93
|
1 795 451
|
8.0
|
53
|
1993/94
|
1 895 423
|
5.6
|
52
|
1994/95
|
2 860 819
|
51.0
|
53
|
1995/96
|
2 887 107
|
1.0
|
53
|
1997
|
2 905 590
|
0.6
|
52
|
Source: Education Basic Education Statistics, Ministry of
Education (various issues)
- Apart
from having a high proportion of untrained teachers (almost 50 per cent),
teachers are also unevenly distributed across regions
and between rural and
urban areas, as well as classes in a particular school. Table 8 provides the
range of pupil-teacher ratios
for the various regions and
classes.
Table 8. Pupil-teacher ratios by area and teacher quality,
1997
|
All teachers
|
Qualified teachers
|
Northern Region Lowest Highest
|
53 38 (Mzuzu city) 60
(NB)
|
85 71 (Mzuzu city) 104 (NB)
|
Central Region Lowest Highest
|
58 37 (Lilongwe urban) 64
(KK)
|
90 48 (Lilongwe urban) 129 (Lilongwe rural)
|
Southern Region Lowest Highest
|
62 49 (Blantyre urban) 95
(Machinga)
|
87 62 (Blantyre urban) 203 (Machinga)
|
Standard 1 (1997) Standard 4 (1997) Standard 8 (1997)
|
173 64 40
|
Not applicable
|
Source: Ministry of Education.
- On
the basis of this year alone, the Northern Region is better off than all other
regions and the Southern Region is the worst off.
In almost all regions, urban
areas are much better off than rural areas. In terms of classes, infant classes
are worse off than
senior classes. In 1997, for example, only 15 per cent of
schools met the recommended 60:1 pupil-teacher ratio in standard 1 as
opposed to
93 per cent in standard 8.
- In
general, the quality indicators are not favourable as can be seen in table 9 for
the 1997 academic year.
Table 9. Some primary education quality indicators,
1997
|
Value
|
Enrolment
|
2 905 950
|
Number of teachers Qualified Required
|
47 370 24 353 48 433
|
Number of teacher houses Permanent Temporary
|
15 797 9 828 5 969
|
Number of classrooms Permanent Temporary
Required
|
24 425 18 596 5 829 48 433
|
Number of schools Local education authority Mission
Government Private
|
3 761 1 132 2 549 49
31
|
Number of schools with water with safe water
|
3 761 750
|
Pupil-teacher ratio Pupil-qualified teacher
|
61 119
|
Pupil-classroom ratio Pupil-permanent classroom
|
119 148
|
Pupil-textbook (English, maths, Chichewa) Pupil-desk
Pupil-chair
|
24 38 48
|
Teachers per house Permanent
|
2 (1995/96) 3 (1995/96)
|
Pass rate Transition rate Repetition rate (all
grades) Repetition rate (standard 8) Drop-out rate (all
grades)
|
77 9.3 (1996) 15 21
17
|
Pupils per school
|
773
|
Source: Ministry of Education.
- The
low pass and repetition rates and high drop-out rates are largely attributed to
the low quality of primary education. Other factors
contributing to the low
standards include poor working conditions for primary school teachers, lack of
relevant supplementary reading
materials, libraries and sick bays. The poor
teacher working conditions include shortage of teacher houses. Almost half of
the
teachers are not housed, while only a third are housed in permanent
structures.
- Although
the average school population is below the Malawi recommended one thousand, most
of the urban schools have over one thousand
pupils. For example in 1995-96
Blantyre Urban had 127,241 pupils in 47 schools, giving an average school size
of 2,707 pupils.
The average for Lilongwe Urban was 1,853 pupils and 4,092 for
Zomba Urban in the same year. For comparison purposes, Blantyre Rural
had an
average of 753 pupils, Lilongwe Rural 852 pupils and Zomba Rural 1,084
pupils.
- Another
aspect of access is that poor children’s participation is low, measured by
the gross enrolment rate. Gross enrolment
for the richest quintile is estimated
to be 133 per cent, as opposed to 74 per cent for the poorest quintile. In
general, there
is unequal access to primary education.
Secondary school
- It
is estimated that the net enrolment rate in secondary school is no more than 6
per cent. However, the enrolment levels have been
increasing lately and the
estimate is actually an improvement. It is also estimated that only 4 per cent
of the primary graduates
go on to CSS and about 8 per cent of the successful
candidates acquire secondary education through DECs. Table 10 presents the
transition
rates since 1992, using the number of form 1 places as a proxy for
the number of standard 8 children who are selected to secondary
school. It
should be noted that the places are only for CSS. There are many more places in
DECs and PSS, as can be seen from table
11.
Table 10: Transition rates, primary-secondary school,
1992/1997
|
Examined
|
Passed
|
Selected
|
Transition rate
|
1992
|
96 634
|
60 418
|
7 550
|
8.0
|
1993
|
97 600
|
65 535
|
7 550
|
8.7
|
1994
|
103 833
|
82 288
|
7 620
|
10.8
|
1995
|
116 992
|
84 956
|
7 700
|
11.0
|
1996
|
120 881
|
74 644
|
8 004
|
0.3
|
1997
|
|
|
|
|
Source: Government of Malawi and UNICEF (1998).
Table 11: Enrolment in secondary education,
1991/92-1997
|
Total (No.)
|
Growth (%)
|
GSS* (%)
|
Private (%)
|
DECs (%)
|
1988/89
|
44 961
|
16.9
|
63.5
|
|
26.5
|
1989/90
|
48 922
|
8.8
|
64.4
|
|
35.6
|
1990/91
|
55 715
|
13.9
|
56.5
|
|
43.5
|
1991/92
|
68.956
|
25.6
|
49.1
|
|
50.9
|
1992/93
|
72.329
|
4.9
|
50.5
|
|
49.5
|
1993/94
|
88.752
|
22.7
|
36.7
|
15.6
|
47.7
|
1994/95
|
105 841
|
19.3
|
31.1
|
14.6
|
54.3
|
1995/96
|
136 386
|
28.9
|
27.6
|
12.6
|
59.8
|
1997
|
175 487
|
28.7
|
25.0
|
12 4
|
62.6
|
1988-94
|
63 273
|
15.5
|
56.8**
|
15.6**
|
37.9
|
1994-97
|
139 238
|
25.6
|
27.9
|
13.2
|
58.9
|
1988-97
|
88 594
|
18.9
|
44.9
|
13.8
|
44.9
|
Source: Ministry of Education.
* This included PSS up
to 1992/93.
** Only up to 1992/93 (CSS) and 1993/94 (private).
- The
average increase in the total enrolment was certainly higher than population
growth rate of the secondary school age group. As
the growth in the number
of pupils who completed primary school increased, the supply of CSS schools
could not keep pace. This resulted
in increased opening up of PSS and DECs. In
fact, the share of DEC in the total enrolment rapidly increased from an average
of 37.9
per cent in the period 1988/89-1993/94 to nearly 60 per cent in the
period 1994/95-1997. This shows that demand forced the education
system to
develop various forms of secondary education in order to increase access and
provide some equity. By 1997, there were
62 government secondary schools,
24 mission secondary schools, 401 DECs and 137 PSSs, making a total of 624
secondary schools.
- The
quest for increased access brought with it depressed quality of secondary
education. Table 12 presents some key indicators for
secondary
education.
Table 12. Key indicators at secondary education level
|
|
PSS*
|
MCDE
|
Total
|
1993/94
|
|
|
|
|
Pupil-teacher ratio
|
28
|
39
|
41
|
35
|
JCE pass rate
|
89.4
|
|
|
89.4
|
JCE transition rate
|
82.6
|
|
|
|
MSCE pass rate
|
65.4
|
|
|
65.4
|
1994/95
|
|
|
|
|
Pupil-teacher ratio
|
12
|
127
|
47
|
26
|
JCE pass rate
|
91.2
|
|
|
91.2
|
JCE transition rate
|
74.0
|
|
|
|
MSCE pass rate
|
54.6
|
|
|
54.6
|
1995/96
|
|
|
|
|
Pupil-teacher ratio
|
14
|
58
|
41
|
28
|
JCE pass rate
|
87.7
|
|
84.5
|
86.1
|
JCE transition rate
|
74.0
|
|
|
|
MSCE pass rate
|
51.9
|
|
12.0
|
51.9
|
1997
|
|
|
|
|
Pupil-teacher ratio
|
15
|
74
|
44
|
31
|
JCE pass rate
|
87.4
|
86.7
|
83.4
|
85.8
|
MSCE pass rate
|
36.2
|
34.3
|
7.9
|
26
|
Source: Ministry of Education.
* Pass rates are
combined with CSS.
- Transition
from form 2 to form 3 in CSS is dependent on performance in JCE. Since there
are limited numbers of form 3 places only
those who are selected proceed. In
some cases, pupils from DECs, who perform better in JCE are selected to CSS
replacing regular
CSS pupils who performed poorly. Transition in PSS is not
very much a problem as PSS are renowned for being “expandable”.
Although DECs are constrained by the number of teachers and classrooms, those
DECs with forms 3 and 4 are also expandable. The
major constraint in the DEC is
that some offer only junior secondary education. Those who pass JCE and fail to
be selected to CSS
mostly end up in DECs or PSS. Previously, before DECs and
PSS were in large numbers, most of these enrolled in vocational and technical
colleges, teacher training and health sciences colleges.
- JCE
and MSCE pass rates for girls in all the three types of secondary education are
low. In 1997, for example, only 33 per cent
and 30 per cent of girls who sat
for JCE and MSCE, respectively, in CSS passed the corresponding ratios were 43
per cent and 37 per
cent for PSS and 33 per cent and 14 per cent for
DECS.
- The
differences in pass rates among CSS, PSS and DECs are also a reflection of
quality of teachers, facilities and average sizes of
classes, apart from
differences in intelligence. For example, in 1977 the average school sizes were
273 for DECs, 158 for PSS and
379 for CSS. In terms of facilities, science
laboratories and libraries are under-equipped and out of date in CSS,
non-existent
in DECs and almost all PSSs. Further, in DECs only 18 of the 2,470
teachers for the 109,846 pupils (i.e. 0.7 per cent) have degrees.
In fact, the
bulk of them (2,449) are primary school teachers. These teachers are not
trained in the secondary school curriculum
and teaching methods and are
therefore unqualified and inappropriate.
- Private
secondary schools also have unique problems that affect quality. Most of these
stem from the fact that the schools are set
up for simple business purposes. In
the quest to maximize profits, fees are very high, but proprietors and mangers
provide only
very basic facilities and inputs. Key problems
include:
(a) Use of untrained and unqualified
teachers;
(b) Overcrowding and unhygienic conditions;
(c) Use of
makeshift structures;
(d) Lack of teaching and learning materials,
including libraries and laboratories;
(e) Rigidity in the school
curriculum;
(f) Lack of professionalism due to lack of supervision,
inspection and quality control mechanisms;
(g) Indiscipline of pupils as
scholarship is determined by ability to pay and not merit as is the case with
CSS.
- However,
the role of PSS and DECs in increasing access is recognized. What is clearly
lacking in terms of the requirements of the
Convention is free secondary
education.
- The
need for free secondary education is clearly vindicated by the low transition
rates. The high costs of DECs and PSS make it difficult
for poor households to
send their unselected children to school and are likely reasons for the low
transition rates.
- It
is very ironic that DECs and PSS, which are clearly more expensive than CSS, use
low quality teachers and have low pass rates as
compared to CSS. Further, the
high unemployment rate of secondary school graduates, combined with high cost
and failure rates conspire
against investment in children’s secondary
education. Clearly, short-run returns on secondary education are diminishing,
making
the opportunity cost to poor households of the high contribution too high
even for the few households whose children are in secondary
schools. The
opportunity cost can only come down with high pass rates and gainful employment
of their wards, given the high contributions.
However, the high incidence of
poverty and the obvious long-term benefits of secondary education to the country
call for the provision
of free secondary education.
Vocational and technical education
- The
major problems have been lack of access due to inadequate space available and
high fees. Where access has been guaranteed for
a few, the lack of appropriate
learning/teaching materials has also hampered achievement. Another problem was
lack of policy direction
and coordination among providers of vocational and
technical training. There is need to promote the participation of girls and
young
women in vocational and technical education and training whose
participation is almost non-existent.
- The
major problem with courses offered by churches is poor quality. The main reason
is that the course trainers are mostly under-qualified.
Another problem of NGO
and church offered training is that there their coverage is very minimal
coverage, due to the fact that the
NGOs could only target specific
areas.
Higher education
- Access
to university is low despite a steady increase in enrolment. The net
enrolment ratio at this level is less than 1 per cent,
even when
other non-university colleges and schools are included. University enrolment
increased from 180 in 1964 to 4,124 in 1997,
averaging 20.3 per cent
per annum over the period.
- By
1997, the University of Malawi awarded 680 certificates, 7,067 diplomas, 6,039
first degrees, 307 first degrees (honours), 121
masters’ degrees and 5
doctorates, giving a total of 14,219 for all awards. The three main areas
were education (16 per cent),
social sciences (9 per cent) and
business (9 per cent). Only 20 per cent of these awards went to
females. Data for other non-university
higher education is not readily
available. However, using teacher training as an example, the growth in
enrolment has been slow
as the Government wanted to match the output of these
colleges with its teacher needs. From 1964 to 1997, enrolment increased from
1,368 to 3,100 with a total of 62,244 and an average annual growth
of 3.2 per cent.
- Low
access and an increasingly irrelevant curriculum are the key problems in higher
education. There are very few places for MSCE
graduates to pursue further
education and training. There is also a mismatch between the graduates of the
university and the job
market requirements in terms of quality and quantity.
This has resulted in unemployment of graduates in the presence of job
opportunities
in some areas.
5. Cooperation with other stakeholders
Primary education
- The
achievements in the education sector have been as a result of close cooperation
within the Government, and between the Government
and local communities, NGOs
and donors. The improvements in most of the indicators are attributed to this
cooperation. Below are
some of the collaborators and areas of collaboration
since 1994/95. Key government agencies that
cooperate with the Ministry of Education include the Malawi Institute of
Education on curriculum development, the Ministry of Gender,
Youth and Community
Services on girl-child education and the Ministry of Health and Population on
the provision of school health
services, pilot school feeding and curriculum
development.
- The
Ministry of Education also collaborates with the media in disseminating
information. The Government and private sector collaboration
includes the
provision of teaching and learning materials and the distribution of the
materials under the IMPACT Initiative. The
private sector also contributes
towards the Malawi Education for All Initiative, in particular the Universal
Industry’s assistance
in primary education improvement through the
Milk-O-Fund.
- The
Government also collaborates with NGOs in many aspects of education. It also
works with religious organizations in the joint
management of government
grant-aided secondary schools. Donors also have a crucial role in the education
sector. Table 13 outlines
key local and international partners in this
sector.
Table 13. Cooperating partners in
primary education: donors and NGOs
NGO donor
|
Area or activities
|
Save the Children Fund/US
|
Established 44 village based schools Trained 44 school management
committees Employed and trained para-professional teachers for the
schools
|
Plan International
|
Constructed the country’s largest school complex of 16
classrooms Donated reading and learning materials Funded in-training of
teachers
|
World Vision
|
Constructed 126 classrooms and 140 teacher houses
|
Action Aid
|
Constructed 12 classrooms and teacher houses
|
The Samaritan
|
Extends primary education to street children
|
UNICEF
|
Provision of learning materials Formulation and promulgation of
MEFA (community schools, para-professional teacher training, etc.)
|
GTZ
|
Development of science curriculum (basic education, teacher training,
training of school committees and coordinators, etc.)
|
IDA
|
Infrastructure development Teacher training Text
distribution Formulation of PIFs
|
DfID
|
Support of primary community school project (community school building,
training and supporting teachers, etc.) Support of Malawi School Support
Systems Programme (school supervision and training of school heads)
|
Table 13. (continued)
CIDA
|
Rehabilitation of schools
|
USAID
|
Support of GABLE Reprinting of teaching and learning materials for
standards 5-8
|
EU
|
Construction of low-cost classrooms and teacher houses
|
ADB/ADF
|
Building and equipping urban primary schools and DEOs and Division
Education offices
|
UNESCO
|
Curriculum review, policy development, development of teacher/learning
materials
|
- The
Government also collaborates closely with communities, especially for primary
education, as evidenced by the number of local education
authority schools in
the country. It can then be concluded that part of article 28 has not been
taken care of. Since the absence
of this aspect in PIF is more a question of
affordability than anything else, the Government would require external
assistance from
the international community on how free secondary education or
financial assistance to needy children could be implemented.
Secondary education
- Cooperation
between the Ministry of Education and other government ministries is similar to
that for primary education; except for
feeding programmes. This is true for
government and mission schools cooperation. However, the cooperation with
missions is getting
thinner and thinner as the Government continuously
reduces subsidies to the schools and the missions demand more and more autonomy.
In fact, more and more previously governmentaided secondary schools have been
handed over to the missions and are run as private
secondary schools. The only
other cooperation that exists is between the Government and donors. At the
secondary school level,
there are fewer donors than at the primary level. These
include IDA, ADB and USAID.
Vocational and technical education
- The
Government, churches and other NGOs are the main cooperating partners in this
area. The most active churches and NGOs active
in this area are the Roman
Catholic Church, the Church of Central Africa Presbyterian Mission, the Anglican
Church, the Lutheran
Development Programme, Save the Children Fund (US) and
World Vision International.
Donor support mostly comes from the
Governments of Germany and China. However, a lot still needs to be done to
strengthen international
cooperation with other partners for the benefit of this
sub-sector.
Higher education
- There
are a number of areas where there is cooperation between higher education
institutions and the private sector. The National
Bank, for example, offers
some awards/scholarships to students with high performance records. Some
faculties have some cooperation
with the private sector in terms of vocational
employment or attachments. In particular, Polytechnic’s the Board of
Governors
students in various trades are attached to companies throughout their
period of study. Kamuzu College of Nursing has very strong
cooperation with the
Blantyre and Lilongwe Central Hospitals, when it is in session as students go to
the hospitals for practicals.
During vacations, students are also attached to
various district hospitals. Other than in institutionalized cases, there is no
formal cooperation between university colleges and the private sector.
- Donor
involvement in higher education is mainly through the development budget. DfID
(ODA) and IDA have been key donors in university
education. Some donors fund
technical assistance programmes whereby lecturers from their countries teach at
various university colleges.
This is also true for the other post-secondary
education institutions. All in all, the cooperation at this level is relatively
getting less and less. One of the reasons is the Government’s focus on
basic education.
C. Educational and vocational information and guidance (art.
28.1 (d))
1. Legal provisions
- There
is no legislation governing educational and vocational information and
guidance.
2. Policies and programmes
- There
are no legislation, policies or widespread institutional measures that can be
described as making educational information and
guidance available and
accessible to all children. While it is true that almost all children are aware
of the availability of education
facilities and that these are increasingly
being made accessible, the same is not true of vocational education and
training. Vocational
education and training is inaccessible.
- The
Government formulated a programme in cooperation with other African States
entitled “The guidance and counselling and youth
department
programme”. This programme aims at developing the child’s
personality and equipping him/her with skills and
information to enable him/her
to make correct and informed decisions on education, career, sexuality, family
life and ideologies,
among other things. The programme is currently training
teachers, young people themselves and social workers.
3. Progress and constraints
- The
situation in Malawi is that whatever information children have, in terms of
educational information and guidance, is from schools.
The almost inaccessible
educational facilities make the issue of making information on education and
guidance available and accessible
of little priority. What is of importance is
making the educational facilities available. Once these are in abundance,
advertising
them would make a lot of sense.
- The
foregoing does not imply that educational and vocational information and
guidance is not available. What is true is that it is
not yet
institutionalized. Most parents, for example, are not effective role models and
promoters of education because of the high
adult illiteracy rates. Further, the
high unemployment and underemployment of educated children put parents and
promoters of education
in an awkward position. Notwithstanding, communities are
aware of the usefulness of vocational education and training. For example,
during the Vision 2020 process communities stated that the country would develop
much faster if there were widespread technical schools
at the local community
level. There is a lot of demand for vocational education and training. This
training would assist in absorbing
some of the unemployed school
graduates.
- Of
late, though, efforts have been made through Information, Education and
Communication (IEC) messages on radio and other media to
stress the importance
of sending children to school. This has been in the form of radio plays,
posters and magazines. There is
little done on vocational education, basically
because of limited facilities.
D. Regular attendance and drop-outs (arts. 28 (e))
1. Legal provisions
- The
Constitution and the Education Act are both silent on these
issues.
2. Policies and programmes
- Some
direct policies are in place that “force” children to attend school
regularly. A pupil is dismissed if she or he
is absent from school without good
cause for five days consecutively or a total of 14 days per term. This policy
only works if the
pupil values school.
- There
have been a number of policies, strategies and programmes proposed or
implemented to address factors that lead indirectly to
absenteeism and dropping
out. Policies, strategies and programmes have been designed to improve the
quality of education and make
lessons more interesting and relevant. Other
programmes specifically deal with keeping children in class. Discussions are
under
way to introduce automatic promotion to reduce repetition rates. This is
meant to encourage children to stay in school as opposed
to dropping out when
they are required to repeat.
- Dropping
out in primary education is likely to be reduced once compulsory primary school
backed by appropriate legislation is introduced.
Regular attendance and
drop-out rates are to be addressed by school feeding. Results from pilot school
feeding programmes show
that pupils are encouraged to attend school and
generally become more attentive. The Government is seriously considering making
school feeding a primary school policy and programme.
3. Progress and constraints
- The
incidence of absenteeism is high, especially at the primary school level.
Likewise, dropping out of school is rampant at the
primary school level.
Absenteeism and dropping out are closely related. It is highly likely that
those who absent themselves drop
out. On average,
only 23 per cent of a cohort completes the eight years of primary
schooling. Further, only 80 per cent reached
standard five in
1993/94. National averages for drop-out rates hover between 15 and
20 per cent. The exception was 1994/95 when
the FPE campaign
attracted
illprepared or overaged children who dropped out en masse (25 per cent).
The repetition rate also hovered between 15 and 20 per cent
in the 1990s except,
again, in 1994/95 when it increased to 28 per cent.
- The
major causes of these problems are basically the same. The most cited ones are
the opportunity cost, especially for poor and
rural households; the low value
attached to education, especially among uneducated parents and girls; and the
quality of the learning
environment (lessons and curriculum). It has also been
found that pupils are mostly absent during agricultural peak periods, when
labour is in high demand, and also during initiation ceremonies. Girls are more
absent than boys as they are forced to take care
of the household chores in
times of need. Children of poor household tend to suffer from ill-health and
hunger, which force them
to be absent. Girls are also more likely to drop out
than boys due to pregnancy, early marriage and fear of sexual abuse. With
regard to the school environment, factors such as untrained, unqualified and
ill-motivated teachers also contribute to absenteeism
and drop-out. Apart from
absenteeism, the high repetition rates in standards 1 to 7 are related to
quality factors.
E. School discipline (art. 28.2)
- Article
28.2 requires Governments to take all appropriate measures to ensure that school
discipline is administered in a manner consistent
with the child’s human
dignity and in conformity with the Convention.
1. Legal provisions
- Chapters
III and IV of this report have already outlined the provisions on child
punishment.
2. Policies and programmes
- Malawi
school policy discourages corporal punishment. School discipline is instilled
through counselling, manual work and deprivation
of certain services and
privileges. Despite the policy which discourages corporal punishment, most
parents and school administrators,
especially at primary school, still advocate
it. The argument is that it is more effective than the other forms of
punishment.
3. Progress and constraints
- At
the primary school level, pupils are sometimes whipped, slapped, pinched or
given some other form of corporal punishment when they
are in the wrong,
depending on their age, on the teacher and sometimes on the sex of the child.
In many cases, though, school punishment
entails some form of manual work like
sweeping the school premises, tending the school garden, digging a school trash
pit, etc.,
as deemed necessary by the teacher or headmaster and depending on the
severity of the offence. Public humiliation of an offender
is found, but is
uncommon. There are also cases where the offender is expelled from
school.
- Punishment
at secondary school is rarely corporal. Light offences lead to manual work. In
general, the commonest punishments are
rustication, suspension or expulsion,
depending on the severity of the offence. At university and other institutions
of higher learning,
offences have to be very severe to warrant punishments.
Counselling and other methods are more in use. In severe cases, students
are
suspended or expelled.
- Currently,
there is increased indiscipline in schools and institutions of higher learning.
Teachers, parents and school authorities
are blaming this trend on the advent of
respect for human rights, democracy and the attendant freedoms. School
indiscipline has
been frequent and has resulted in expulsions and the closure of
schools and colleges, both of which affect the child
negatively.
F. Universal aims of education (art. 29)
1. Legal provisions
- The
provisions of this article are not legislated. The Malawi Constitution does not
specifically provide for this. Likewise there is no operational law that
provides for broad-based education as articulated
in this
article.
2. Policies and programmes
- The
policy currently governing education does not provide for this type of
education. However, the curriculum review has incorporated
most aspects of this
article. The Youth Policy has incorporated some aspects of this article. The
Youth Policy addresses one of
the aims of education articulated in the
Convention, namely, the conservation of the natural environment. One of the
objectives
of the policy is to institute and promote environmental education and
active participation in environmental conservation among young
people. Further,
the policy establishes respect for the environment and for sustainable
development as one of the values for young
people and conserving the environment
as one of the responsibilities of young people.
- The
Youth Policy also stipulates promotion of national unity, respect for the
principles of democracy and human rights, and promotion
of a spirit of
self-reliance as other values for young people. It also stipulates promotion of
the spirit of tolerance, active participation
in the development process,
promotion and defence of democracy, promotion of patriotism and respect of
others’ rights as other
responsibilities of young people.
3. Progress and constraints
- The
current primary school curriculum has incorporated most of the issues in article
29 of the Convention; the carrier subjects are
social studies, languages and
religious studies. However, the current secondary school curriculum has not
done so. But as already
stated, it is expected that the revised curriculum will
be more responsive to the provisions of this article. It is interesting
to
note, however, that respect for parents has been problematic probably because
the parents themselves have failed to recognize
and take into account the
evolving capacities of their children.
- Other
problematic issues have been respect for the child’s own cultural
identity, language and values, essentially because of
influences from other
supposedly “superior” cultures inherited from the colonialists and
imported through videos, radio
and television. Efforts are being made to put
into place mechanisms that would increase the value of the country’s
culture
and languages.
G. Leisure, recreation and cultural activities (art.
31)
1. Legal provisions
2. Policies and programmes
- The
current PIF does not have any provisions related to this subject. However, the
draft 1999-2009 PIF includes some aspects of this
article. Strategies of
interest in the draft PIF are outlined below.
(i) Utilize sports as a tool to promote social relationships and discipline in
schools and colleges;
(ii) Assist in the provision and development of accessible sports facilities and
infrastructure in schools and colleges;
(iii) Provide opportunities for persons with different abilities to perform to
the best of their abilities in their chosen sports
as a means of selffulfilment
and recreation;
(iv) Facilitate the provision of opportunities for pupils with talent to excel
in their chosen sports as a means of self-fulfilment
and developing professional
careers;
(v) Promote research and participation in traditional games and sports at school
and college levels.
- The
current primary school curriculum has incorporated aspects of environmental
conservation through such subjects as Science and
Technology.
- The
Youth Policy also has some aspects that fall under leisure, recreation and
cultural activities. Two of its objectives fall within
the provisions of the
article. The first is to promote, preserve and develop the ethnic cultural
heritage of Malawi; and the second
is to provide and sustain adequate
recreational and sporting facilities for young people in communities and schools
for healthy minds
and healthy bodies.
- Two
of its values, namely (i) pursuit of excellence to one’s maximum potential
and (ii) development of youth’s unique
potential, also address some
aspects of the article. One of its priority action areas is recreation,
leisure, sports and culture.
Issues highlighted in this priority area include
(i) the provisions of sporting and recreation facilities, entertainment centres,
libraries and parks, (ii) participation in cultural activities and (iii)
incorporation of traditional dances, games, arts and craft,
and music in the
school curriculum and their teaching.
3. Progress and constraints
- At
home, many children are allowed to rest and play especially if they are staying
with their parents. In general, children are not
denied their right to rest and
play. However, children are adopting foreign lifestyles and discarding
traditional ones wholesale.
The traditional oral literature and oral skills are
being replaced by written literature and writing skills as more and more people
become literate. The traditional fireplace folk narratives, riddles and
proverbs, and the moonlight dances and village dance competitions
(chioda),
music and play have all become almost history. Most parents who were the
custodians of these cultural practices have become
less attached to them in
pursuit of a literate culture, thereby breaking the intergenerational cultural
link.
- There
are virtually no sporting and cultural activities in schools. The only time
school children are seen playing is during break
time. Sports, plays (drama)
and traditional dances are not commonly available to children, even as
extracurricular activities.
The school curriculum inherited from the colonial
government had leisure, recreation and cultural activities. Subjects and
activities
included physical education, sports, arts and crafts, music, drama
and traditional dances. By the late 1970s, these had died. The
main reasons
are (i) lack of basic equipment, amenities and school sports competitions for
the promotion of sports in school, (ii)
lack of trained school sports trainers
and (iii) lack of resources, compounded by a lack of creativity and a bad
attitude towards
promoting cultural activities in schools.
- The
results of this neglect has been poor performance of the country in sports and
lack of cultural activities. Most musicians and
artists fail to promote the
country’s culture, music and traditional dances. There have been problems
in promoting traditional
music and dance as artists seem to believe that their
genre is inferior.
IX. SPECIAL PROTECTION MEASURES
A. Introduction
- This
chapter provides information about implementation of the Convention with respect
to children in situations of disadvantage.
This information is on policies and
programmes and progress and constraints. The areas covered are child labour,
refugee children,
children in conflict with the law, sexual exploitation and
child abuse, substance abuse, sale, trafficking and abduction, children
of
minorities and children in armed conflict.
B. Child labour (art. 32)
1. Constitutional provision
- Section
23 of the Constitution of Malawi stipulates that children must be protected from
any work that is hazardous and likely to cause interference with their
education, health or development.
2. Other legal provisions
- The
relevant statute on child labour is the Employment of Children and Young Persons
Act. The Act restricts the employment of children
and specifies the contractual
conditions for the employment of children. The Act provides that there should
be no written contracts
for children under 12 years. It also provides that a
child must not be employed to work at night and that neither a child nor a
young
person must be employed in heavy work. The Act defines a child as a person
under 12 years of age and a young person as a person
between 12 and 14
years.
- There
are three exceptions to these restrictions. The first is that a child or a
young person may work as long as the employment
contract is not in written form.
The second is that work in a family business is allowed. The last is that
children and young persons
are allowed to work in agriculture. However, the
illegal child labour in tea and tobacco estates has been of concern to trade
unions
and educationists. Further, Malawi, in 1999 ratified the International
Convention on the Prohibition and Elimination of the Worst
Forms of Child
Labour. The Act is consequently under review, coordinated by the Ministry of
Labour.
- Another
relevant statute is the Labour Legislation (Miscellaneous) Act, which provides
for labour inspections.
3. Policies and programmes
- There
is no defined policy on child labour and no specific government programmes
against child labour. There are, however, two notable
programmes that have the
effect of curtailing child labour. The first is the Community-Based Population
Education Programme. One
of its objectives is to sensitize communities about
the dangers of child labour. The second is the free primary education policy.
Free primary education allows children to spend some time at school instead of
working in hazardous or detrimental work.
4. Progress and constraints
- By
and large, child labour exists in Malawi. Most children work to supplement
family incomes. Orphans, an increasing and vulnerable
group, are the major
contributors of child labour. The child labour market is also dominated by
domestic workers, especially girls.
Children are also involved in hazardous and
detrimental work on tobacco and tea estates. Although no research has been
carried
out and the actual number of children involved in various sectors of
employment is not known, some small studies on child labour
have been
done.
- Child
labour is found to be highest amongst tenant farmers. About 20 per cent of all
children under 15 years were reported by their
parents as working full time and
a further 21 per cent were working part time. Children from tenant
households were found, in another
study, to be involved in all tasks related to
tobacco production. Children under 10 years of age were found working alongside
their
parents as full-time workers in almost all the tasks of tobacco
cultivation. Further, 20 to 30 per cent of children under 15 years
living on
the estates carry out household activities such as food preparation and
processing. Women reported that their children
are mere assistants in domestic
work, but full workers in fieldwork.
- Labour
inspectors envisaged by the Labour Legislation (Miscellaneous Provisions) Act
are in short supply and often without resources
to undertake inspection of child
labour. The Trade Unions, UNICEF, the Young Voices and some NGOs have, however,
conducted advocacy
campaigns against child labour. For example, the theme for
the Day of the African Child for 1997 was child labour.
C. Children in conflict with the law (art. 40)
1. Legal provisions
- The
law, both in the Constitution and the statutes, provides for a separate juvenile
justice system. The Constitution has, however, not defined a juvenile, despite
providing a framework for the protection of children who transgress the
law.
- Section
42 (g) of the Constitution specifically provides that where a child is in
conflict with the law he or she should be accorded treatment consistent with his
or
her special needs, which must include the rights.
(i) Not to be sentenced to life imprisonment without possibility of
release;
(ii) To be imprisoned only as a last resort and for the shortest period of
time;
(iii) To be separated from adults when imprisoned, unless it is considered not
to be in his/her best interests, and to maintain contact
with his or her family
through correspondence and visits;
(iv) To be treated in a manner consistent with the promotion of his or her sense
of dignity and worth which reinforces the rights
and freedoms of others;
(v) To be treated in a manner which takes into account his or her age and the
desirability of promoting his or her reintegration
into society to assume a
constructive role;
(vi) To be dealt with in a form of legal proceedings that reflects the
vulnerability of children.
- The
Children and Young Persons Act establishes the procedure to be followed when
dealing with juvenile offenders. The Act requires
that the parents or guardian
should be in attendance when the case is heard and that such cases be heard in
camera. There is also
a restriction on newspaper reports of proceedings in a
juvenile court.
- The
age of criminal responsibility for the child in Malawi is seven years. The
Penal Code stipulates that any person under this age
cannot be criminally liable
for any act or omission. Although this is the legal age of criminal
responsibility, it is felt that
it is too low and that there is need to put the
age up to between 10 and 12 years. In practice, however, there is no record of
a
child of such a young age being taken to court. Further, the Law Commission
has taken this issue up and is to look at this age.
- Section
7 (1) (2) of the Children and Young Persons Act provides for a separate juvenile
court. The court should either be in a different
building/room from that in
which sittings of courts other than juvenile courts are held or have sittings on
different days from such
other
courts. This Act has important
principles in relation to the Convention. The first is that a child should be
treated humanely and
in a manner consistent with his or her vulnerability. The
second is that a child should not be imprisoned unless she/he is of such
depraved character or so unruly that it would be in her or his best interest to
be imprisoned.
2. Policies and programmes
- There
is no specific policy developed for juvenile offenders. However, there are some
programmes running in the two approved homes
that aim at building skills among
young offenders. These include provision of education and education materials,
provision of vocational
skills courses, like carpentry, agriculture related
courses, bricklaying, leather crafts, tailoring and painting, up to the Grade
3
Trade Test. These schools are meant to prepare the offenders for reintegration
after their reformation.
- The
Malawi Government and the European Union are running a joint programme on penal
reform which aims at improving the general conditions
in prisons, including the
juvenile wings and approved schools, and facilitating the rehabilitation of
offenders through various services.
3. Progress and constraints
- The
provisions of the Children and Young Persons Act are rarely followed. In most
cases arresting officers do not follow the required
procedures. Some children
are placed in prisons without charge. Many are not informed of their right to
bail, trials are delayed,
lay magistrates rarely constitute themselves into
juvenile courts and children are tried as adults as presiding magistrates do not
declare that they are presiding over a juvenile court. Mostly, juveniles are
not aware of the type of the court they are being tried
in.
- Conditions
in prisons are appalling and many children frequently suffer from scabies and
diarrhoeal diseases. In some prisons children
are mixed with adults. Recently,
however, certain organizations, such as UNICEF, the European Union and Penal
Reform International,
have assisted with drugs. Other partners include Penal
Reform International, CARER, Young Voices, Save the Children Fund of Malawi
and
the CEYCA.
- Recently,
some children have been released while others have been moved to approved homes.
The basic services in the approved schools
have been improved and their capacity
increased. Reports indicate that 60 per cent of the juveniles discharged from
Mpemba Boys
Home are able to reform and become productive.
- The
approved schools’ reintegration programme for discharged offenders is
currently not assisting the young people, since they
are not provided with
start-up tools. Further, when they return to the community, members of the
community do not welcome them wholeheartedly.
While close family members are
able to accept them, other members of the community are
reluctant as they still associate them with the offences they committed. So
far, the Rotary Club of Blantyre, Round Table International
and the Red Cross
have assisted the reintegration programme. However, there is a lot that needs
to be done.
D. Refugee children (art. 22)
1. Legal provisions
- The
Constitution does not have any specific provision dealing with refugees or
refugee children. The Refugee Act was enacted in 1989 when the country
hosted
about a million refugees. That Act, however, does not provide specifically for
refugee children.
2. Progress and constraints
- Malawi
does not have official refugees residing outside the country since the
amnesty announced after the introduction of multiparty
democracy in 1994.
She is currently hosting 1,090 refugees from Rwanda, Burundi, Ethiopia, the
Sudan, Angola, Sierra Leone, the
Democratic Republic of the Congo and Uganda, 73
per cent of whom are women and children. At the peak of the Mozambique civil
war
she hosted close to a million refugees.
- In
1987, Malawi acceded to the 1951 Convention relating to the Status of Refugees
and the 1969 OAU Convention, which calls upon States
parties to host refugees
and give them special protection. It enacted a Refugee Act in 1989. Malawi
also ratified the Convention
on Refugees with a number of reservations. The
reservations were on the provision of public education to refugees. This was on
the basis of the numbers of refugees at that point in time. The reservation
meant that Malawi could not allow refugee children to
attend any public school
in Malawi. Another reservation was refugee employment. Considering the high
unemployment rate, it has
been felt that refugees should not be allowed to seek
employment in the country.
- While
these reservations still stand, Malawi has allowed the provision of education to
refugees. Currently, refugee children have
their own primary school, running
from standard 1 to 6, at the Dzaleka camp in Dowa district. Currently, the
Malawi Red Cross Society
has opened a pre-school at the camp. The Government
has also allowed Malawian children and refugee children to integrate. The
refugee
camp school has since January 1999 admitted 300 Malawian children; on
the other hand, 20 refugee children have been admitted to Mpalankhwali
primary
school, the nearest government school to the camp.
- There
are other refugee-specific programmes that benefit refugee children directly and
indirectly. These include:
(a) Provision of clean water
(boreholes) and toilets;
(b) Provision of health facilities and services
by the Government and other agencies, include building of health clinics and
supply
of drugs, equipment, medical personnel and other staff. The present
refugee clinic at the Dzaleka camp is part of the Dowa District
Hospital. When
the Government carries out its routine immunization campaign, the refugee
children benefit from such a programme
as well;
(c) Provision of a special feeding programme for malnourished refugee
children. This feeding programme takes place at the Dzaleka
camp. Following
this programme, two nutritional surveys were conducted and both revealed that
there were no significant health deficiencies
among the refugee
children;
(d) Provision of a good road network for proper access to
refugee camps. This helped to facilitate food
distribution;
(e) Introduction of home craft lessons, vocational
training, veterinary services and reforestation.
- The
Government is currently reviewing the Refugee Act. The draft bill, which is
being prepared for presentation in the National Assembly,
has withdrawn all the
reservations including the one on education.
3. Cooperating partners
- The
agencies which helped the Government on this programme included: Save the
Children Fund UK, Malawi and USA, the Norwegian Refugee
Council, Zoa Refugee
Care, the Malawi Red Cross Society and UNHCR.
E. Sexual exploitation (art. 34)
1. Legal provisions
- Section
23 (4) of the Constitution stipulates that children are entitled to be protected
from any treatment that is likely to be harmful to their physical, mental or
spiritual, or social development. Section 138 of the Penal Code states that
“any person who unlawfully or carnally knows any
girl under the age of
thirteen years shall be guilty of a felony and shall be liable to imprisonment
for life, with or without corporal
punishment” and “any person who
attempts to have unlawful carnal knowledge of any girl under the age of thirteen
years
shall be guilty of a felony and shall be liable to imprisonment of
fourteen years, with or without corporal punishment”.
2. Progress and Constraints
- A
number of cases of child sexual abuse are being reported in the media. Cases on
the increase are those of rape and defilement.
The other form of sexual abuse
is incest. Cases of incest are surfacing, despite the culture of suppressing
this kind of offence.
Some incest cases have been associated with superstition,
especially those involving father and daughter.
- There
has been no research on sexual exploitation to establish the magnitude of the
problem. The causes of sexual exploitation include
poverty, growth in tourism
and cultural practices. For example, it is believed that initiation rites give
children a false sense
of maturity and they are encouraged to engage in sex
after the rites. Other cultural practices force a girl to have sex with an
older person after her puberty as a proof of her maturity. These practices are
not very common however.
F. Drug abuse (art. 33)
- Article
33 states that children have the right to be protected from the use of narcotic
and psychotopic drugs, and from being involved
in their production and
distribution.
1. Legal provisions
- The
Liquor and Licencing Act, among other protective measures, bars a young person
under the age of 18 years old from access to public
bars and further prohibits
children from carrying beer.
2. Policies and programmes
- There
is no specific policy regarding drug abuse by children in Malawi. However, the
Government established an Anti-drug and Alcohol
Resources Centre to reduce
demand for drugs and alcohol and create a drug free mental retardation. The
resource centre also offers
education on the dangers of drug and alcohol abuse.
Anti-drug clubs have been established in some secondary schools. In addition,
a
strong anti-drug Community Based Programme (CBM) has been established in the
three cities.
3. Progress and constraints
- Both
the Government and NGOs, especially youth NGOs have paid special attention to
the problem of drug and alcohol abuse among young
people. Lack of resources
affects the effectiveness of their programmes. The churches also play an
important role in providing
counselling services.
- There
has been no research to establish the causes of drug and alcohol abuse among
young persons. However, anecdotal evidence shows
that boys, especially in
secondary schools, are more affected than girls. Indiscipline in schools is one
indicator of students’
increased alcohol and drug abuse. The indiscipline
mostly results in suspensions and expulsions. Some of the problems are due to
lack of enforcement of the laws.
G. Street children
1. Legal provisions
- There
are no legal provisions for street children, since this is a recent phenomenon.
Most of the issues are being dealt with at
the programme level.
2. Policies and programmes
- The
Government has not developed a specific policy and has no programmes on street
children. However, NGOs, working with the Government,
have programmes dealing
with various aspects of the problem of street children. A number of
interventions target street children.
The key ones are the provision of shelter
as an alternative home, the provision of health care services, the provision of
food,
rehabilitation in the form of skills training, e.g. carpentry,
tinsmithing, welding, etc., the provision of informal education, e.g.
numeracy
or literacy lessons for those who have never been to school, counselling,
spiritual or otherwise, farming, facilitation
of reunification with parents,
sport and others.
3. Progress and constraints
- According
to a survey on street children conducted in 1991, 400 children were living on
the streets of Lilongwe City. A recent survey
commissioned by UNICEF Malawi
established an estimate of 2,400 children living in the streets of Blantyre,
Lilongwe and Mzuzu: 1,500,
800 and 100, respectively. Reasons for living on
the street include poverty, broken or unstable homes, domestic violence,
parental
abuse and mere adventure.
4. Cooperating partners
- Key
players and areas of operation include the Samaritans in Blantyre, Ana a Malawi,
the Adventist Development and Relief Agency (ADRA)
project in Blantyre, the
Bangwe drop-in centre in Blantyre, the Blantyre drop in Centre in Blantyre, the
Stella Maris camp in Blantyre,
the Chisomo Children’s Club in Blantyre,
Yamikani House in Blantyre, the Catholic Diocese of Lilongwe in Lilongwe and
Task
Force for Homeless in Mzuzu.
H. Sale, trafficking and abduction (art. 35)
1. Legal provisions
- Sections
135, 167 and 265 of the Penal Code establish various offences in relation to
abduction, trafficking and sale. Any person
found committing these offences is
punishable by law. Penalties range from five to seven years’
imprisonment.
2. Policies and programmes
- There
is no specific policy or programme regarding the sale, trafficking and abduction
of children in Malawi and no domestic legislation
has been
passed.
3. Progress and constraints
- Of
late, Malawi has experienced abductions of children under 10 years, smuggling of
girls of under 18 years and kidnapping of young
children. The magnitude is,
however, not high.
-----
[1] The major source of
these indicators is the Human Development Report 1999 published by the
United Nations Development Programme. Most of the statistics are for
1997.
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