MALAWI’S LEGAL STRUCTURE MUST BE HARMONIZED WITH INTERNATIONAL STANDARDS, SAY EXPERTS ON WOMEN’S ANTI-DISCRIMINATION COMMITTEE

19 May 2006
WOM/1560

MALAWI’S LEGAL STRUCTURE MUST BE HARMONIZED WITH INTERNATIONAL STANDARDS, SAY EXPERTS ON WOMEN’S ANTI-DISCRIMINATION COMMITTEE

19 May 2006
General Assembly
WOM/1560
Department of Public Information • News and Media Division • New York

Committee on Elimination of

Discrimination against Women

727th & 728th Meetings (AM & PM)


Malawi’s legal structure must be harmonized with international standards,

 

say experts on women’s anti-discrimination committee

 


Concluding Day-Long Review of Country’s Report, Committee Members

Call for Clearer Definition of Gender Equality in Malawi ’s Constitution


Malawi needed a clearer definition of gender equality in its Constitution and must harmonize the country’s tradition-bound legal structure with international standards, members of the Committee on the Elimination of Discrimination against Women stressed today as they considered Malawi’s combined second, third, fourth and fifth report.


In their dialogue with the country’s eight-member delegation, expert members learned that Malawi followed a system of “dualism” with regard to the application of international standards.  Under that system, the provisions of the Convention on the Elimination of All Forms of Discrimination against Women must first be incorporated into domestic law before they could be applied, but courts were nevertheless allowed to refer to those provisions when interpreting the Constitution.


Committee members questioned the Convention’s effectiveness under such a system, and emphasized the Government’s need to reconcile the existence of discriminatory cultural norms that were sanctioned by law -- such as polygamy -- with international standards, and to do so without delay.


In fact, a special Law Commission had been created and tasked with reforming Malawian law; gender-related issues would be covered under a Gender Equality Statute.  However, one representative admitted that the process of harmonizing international and domestic laws was “slow”, but said that the country was doing its best given the lack of resources at its disposal.


The delegation from Malawi was headed by Joyce Banda, Minister of Gender, Child Welfare and Community Services, whose ministry had formerly been known as the Ministry of Women and Children Affairs, Community Development and Social Welfare.


Introducing her country’s report to the Committee, Ms. Banda said that awareness of human rights, particularly those of women, had been raised in both rural and urban areas, resulting in the increased reporting of violence and discrimination against women and children.  But despite those achievements, Malawi still faced a persistence of stereotypical attitudes, beliefs and practices and negative cultural norms.


She said the Ministry depended heavily on a gender coordination network -- a non-governmental organization that functioned as a lobby group -- for support in passing a recent domestic violence bill through Parliament.  Only 27 of Malawi’s Members of Parliamentarians were women compared to 193 men.


Member experts learned that women could turn to constitutionally approved bodies, such as the Office of the Ombudsman or Human Rights Commission, for assistance in protecting or enforcing their rights through the court.  The Human Rights Commissions also offered training programmes for the judiciary and magistrates on the Convention.


However, most women in Malawi lived in rural areas, where courts and related bodies were not easily accessed.  The delegation, too, openly admitted Malawi’s lack of resources to scale up best practices in disseminating, promoting and protecting women’s and children’s human rights and the economic and social empowerment of women.


The Committee will meet again on Tuesday, 23 May, to take up the situation of women in Saint Lucia.


Background


The Committee on the Elimination of Discrimination against Women had before it Malawi’s combined second, third, fourth and fifth periodic reports (document CEDAW/C/MWI/2-5), which discuss the country’s progress in implementing the provisions of the Convention on the Elimination of Discrimination against Women.  The reports were due on 11 April 1992, 1996, 2000 and 2004, respectively, but because of “circumstances beyond the Government's control” the second, third and fourth reports could not be submitted on time resulting in the current combined report.


The report explains that all international standards -- such as the Convention -- must first be incorporated into the Malawi legal system before any provisions can be directly invoked.  However, that restriction is mitigated by a rule that states that courts are allowed to “have regard to current norms of public international law” when interpreting the Constitution.  In addition, the Constitution allows two possible courses of action for human rights infringements:  protection or enforcement of those rights through the court, or application for advice or assistance from the Ombudsman or Human Rights Commission.


The report says, however, that a majority of Malawians have more confidence in traditional justice forums over bodies provided for by the Constitution even though there was acknowledgement that “some traditional laws, procedures and practices infringe human rights principles, more especially of women”.  Customary law, for instance, allows polygamy.  Domestic violence against a wife is acceptable within the customary law, which expects the husband to exercise a disciplinary role.  Low literacy levels among women and men are said by the report to hamper the effectiveness of human rights education.


The Ministry responsible for issues relating to women is the Ministry of Women and Children Affairs, Community Development and Social Welfare, which adopted a “Women In Development (WID) Policy and Plan of Action” in 1993, followed by the sensitization of all Ministers on the advancement of women, population and development and women’s rights.  During this period, the Government also embarked on an education programme on sexual reproductive health and gender roles, which reached 3.7 million people (1.5 million women, 1 million men, 500,000 women and 700,000 boys).  Activities on family planning and safe motherhood are conducted by the Ministry of Health and Population.


The report discusses the legal embodiment of the principle of equality between men and women, including the adoption of the first piece of legislation that addresses discrimination -- the Employment Act of 2000 -- which adds “family responsibilities” as “a prohibited factor in the treatment of employees”.  The adoption of anti-discrimination measures, State restraint from engaging in discrimination, and ways of institutionalizing the concept of “protection of women and men” in Malawi are also discussed.  Measures taken for the advancement of women in civil, political, economic social and cultural matters are listed, including affirmative action in the education of girls, as well as efforts to modify sociocultural patterns resulting from sexual stereotypes and to prevent sexual exploitation through customary law and cultural practices.


Introduction of Reports


Introducing her country report to the Committee, JOYCE BANDA, Minister of Gender, Child Welfare and Community Services of Malawi, said that, although there was neither “a legislative nor judicial definition” of discrimination in the country’s Constitution, it nevertheless prohibited discrimination against persons in any form (Section 20 (1)), including discrimination against women (Section 24 (1)).  Efforts to lobby for the elimination of violence and discrimination against women had relied on those constitutional provisions.


In December 2004, the Government launched a National Gender Programme that focused on gender mainstreaming and women’s empowerment, she said.  Its eight thematic areas were:  capacity-building and institutional strengthening, including the creation of gender guidelines, a monitoring and evaluation system, and gender focal points in both the public and private sector, as well as in non-governmental organizations; increasing access to education at all levels and bridging the gender gap in enrolment; improving women’s and girls’ access to health services and mainstreaming gender in all health policies; mainstreaming gender in HIV/AIDS programmes; increasing women’s access to land, credit and capital and improving food and nutrition security of households; mainstreaming gender management of natural resources; provision of entrepreneurial skills, appropriate technology and access to markets to women; and advancing women’s participation in politics and decision-making.


She also said that in April, Parliament had passed a Prevention of Domestic Violence Act, while draft bills on the law of inheritance, as well as marriage and divorce, would be considered during its next sitting.  A Law Commission was currently developing a Gender Equality Statute.


Awareness of human rights, including those of women and children, had been raised in both rural and urban areas, resulting in the increased reporting of violence and discrimination against women and children, she continued.  But despite those achievements, Malawi still faced a persistence of stereotypical attitudes, negative cultural norms, beliefs and practices, which she said had undermined women’s advancement.  In addition, service providers in both public and private sectors and among civil society organizations were thought to be inadequate.  Malawi also faced limited resources to scale up best practices in disseminating, promoting and protecting women’s and children’s human rights and the economic and social empowerment of women.


The Government understood that there was a need for technical and financial assistance to “competently deal” with violence and discrimination against women and children, as well as to promotion gender equality generally.  She said it also realized that there was a need for coordinated action among governmental bodies, civil society and Malawi’s development partners.


Also in her remarks to the Committee, Ms. Banda introduced the other members of her delegation, who included Andrina Mchiela, Principal Secretary for the Ministry of Gender, Child Welfare and Social Development; Trifonia Dafter, Chairperson of the Parliamentary Committee on Community and Social Affairs of the National Assembly of Malawi; Dorothy Nyasulu, Chairperson of the Malawi Human Rights Commission; Alexina Chimzimu, Director of Finance and Administration, Ministry of Education; Peter Msefula, Acting Director for Gender Affairs, Ministry of Gender and Social Development; Chikosa Silungwe, Assistant Chief Law Reform Officer, Malawi Law Commission; and Jane Namasasu, Deputy Director, Reproductive Health, Ministry of Health.


Experts’ Questions and Comments


Regarding articles 1 and 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEES FLINTERMAN, expert from the Netherlands, said that in 1990, the Malawi representative addressing the Committee had said that the question of direct applicability of the Convention had not been decided.  With the 1995 Constitution of Malawi, it was understood that Malawi had reverted to dualism.  Were there any cases that could be cited about the Convention’s directed applicability?  What kind of cases had been submitted to the Ombudsman on the promotion and protection of women’s rights?


Malawi had signed the Convention’s Optional Protocol, he said.  What difficulty had women’s organizations encountered in following it?  Was the Government reviewing the 1995 Constitution to include in it a definition of discrimination against women in line with article 1 of the Convention?  Could the delegation provide specifics on human rights training for the judiciary and magistrates?  What Convention topics were being discussed?  Despite progress made, some discriminatory laws were still on the books in Malawi.  What was the time frame for harmonizing Malawi’s present laws and adopting new laws in line with the Convention?


MARY SHANTHI DAIRIAM, expert from Malaysia, said the country report revealed that, although the concept of equal rights was enshrined in the Constitution and was dealt with by the court system, people preferred to use the traditional court systems because they were more flexible.  However, traditional law was discriminatory in many ways against women.  What plans were there to reconcile this contradiction?  What would be the legal standards that would be enshrined in the proposed Gender Equality Law?  Would the definition of discrimination in article 1 of the Convention be part of the Law?  Would the Law prohibit discrimination by private actors?  Would it have provisions for temporary special measures to deal with cases of past discrimination?  What would be the time frame for the Law?


Could the delegation clarify the concept of gender in Malawi? she asked.  How did the approach to women’s issues change when the Ministry of Women was converted into the Ministry of Gender?  In its written response, the delegation did not answer question 31 regarding legal measures to end trafficking and smuggling of refugee women, gender-based violence and sexual exploitation.  Could the delegation answer that question?


NAELA MOHAMED GABR, expert from Egypt, said it was clear that the Ministry had the necessary expertise to address women’s issues.  Was there a single mechanism responsible for women’s issues?  What was that mechanism’s prerogative?  What as the relationship and what were the shared resources between that body and the Government?  What could the Government do to adopt new policies and proposals?  Were there statistics and a clear timetable to improve the status of women?  Were there any laws in that regard?


She said that in 1998, a new body had been set up to coordinate civil society activities.  What was its relationship with civil society and the Government?  How was the body’s report prepared?  Who took part in it?  How were the experts working with the body chosen?  Were there any experts from neighbouring countries?  Were there any from the African Union?  How could the concept of gender and development be promoted as part of strategies already adopted?  In its written response, the delegation did not answer question 31 and gave only brief answers to other questions.  Clearer answers to these questions were needed.


Country response


Regarding legal issues raised by experts, one delegate from Malawi said that equality for men and women was addressed in the 1994 Malawi Constitution.  Under Section 11 of the Constitution, courts could use international law, including the Convention, and foreign municipal law to interpret the Constitution.  However, there had not been any public litigation cases so far that sought to entrench the Convention’s provisions into international law.  The delegate said he did not have a response at this stage regarding the question on the Optional Protocol.


The Law Commission was in charge of the initiative concerning the Gender Equality Law, he said.  The definition of discrimination as under the Convention would have to be taken into account, as would further modifications to section 24, which covered women’s rights.  There was still much work to be done to educate judicial officials about the Convention and human rights in general, particularly among the lower ranks.


Harmonization of laws was an ongoing process in Malawi, the representative said.  The country was doing its best within available resources to factor international law provisions into national law.  The traditional court system in Malawi had been suspended in 1994 due to problems in its modus operandi.   Malawi had just finalized a review of the traditional courts act and had recommended a complete renewal of the primary justice system to ensure continuity with the Malawi legal system and international law.  Work was ongoing in terms of the Gender Equality Law, which would be finalized in September.  Issues raised by experts would be factored into the Law Commission’s work before it finalized its bill.


Another delegate said that the Human Rights Commissions had arranged training programmes for the judiciary and magistrates on the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child.  That was ongoing.  There were cases before the Ombudsman’s office on violations of women’s rights.  Most complainants were women.  Public litigation had not necessarily been used to invoke the Convention, but the Commission had used it in some cases.


Regarding question 31, she said that the Department of Poverty Disaster and Management did not have any evidence of women being trafficked through Malawi.  However, it did have evidence of men and boy asylum-seekers using Malawi as a transit point.  Such cases could be brought to court but there were only a few cases before courts of gender-based violence of migrants.  Amendment of the Refugee Act would follow.


Upon assuming office in May 2004, the President of Malawi had asked for a meeting with all Malawi women, she said.  Due to women’s public input, it had been decided to rename the Ministry of Women as the Ministry of Gender in order to deal with not just women, but also gender issues.


Another delegate said the focus of the Ministry of Women and Ministry of Gender was indeed on women.  Statistically women were lagging behind; 74 per cent of men were literate while only 46 per cent of women were literate.  Even programmes that were supposed to ensure that women were involved in decision-making were thwarted by the literacy gap.


Malawi had girls’ education programmes.  Due to globalization many countries were adopting a gender approach to programmes to advance women’s rights, she added.  In terms of the working relationship between the Ministry and other actors, like non-governmental organizations, there was a gender network for such organizations with whom it collaborated.


The Ministry of Gender was the single Government mechanism for women’s issues, she said.  However, the non-governmental organization gender network assisted with strategy and programme implementation.  The Ministry also lobbied for funding for the network.  The Ministry of Gender also coordinated its activities with the Ministry of Health.  The two Ministries held monthly forums.  A Gender Advisory Committee comprised all stakeholders of gender issues.


Another delegate added that the Ministry had depended on the non-governmental organization gender network’s support for the domestic violence bill before Parliament.  Only 27 of Malawi’s parliamentarians were women, and that support was not initially sufficient to get the bill approved.


In terms of how gender experts were appointed, she said appointments to the Human Rights Commissions and most other appointments were made by the President.  Parliament must approve the appointment of the Inspector General of Police.  Gender experts, including those from the Common Market for Eastern and Southern Africa (COMESA), had been appointed and their input had been very beneficial.  The Government, non-governmental organizations and the private sector were obligated to follow the terms of reference provided by the Convention.


Experts’ Comments and Questions


Revisiting the topic of dualism in Malawian law, Mr. FLINTERMAN, expert from the Netherlands, asked about instances where there was a clash between national law and the Convention.  In such a case, which of the two prevailed?


He also asked to what extent temporary special measures were seen as important in advancing the rights of women, as distinguished from general social policies.  It had been his impression that the distinction between the two was blurred in the report.  He remarked that Malawi’s Gender Equality Statute would be a good vehicle for the establishment of such measures in education, health, training and so on.


Finally, was it true the 30 per cent of positions at the University of Malawi were reserved for female students?  Why was that number not higher, say, 50 per cent?


Country Response


Responding to Mr. Flinterman’s question, one representative conceded that the Convention had not been fully integrated into domestic law, and that to do so was an ongoing, but slow, process.  After the country moved from the traditional justice system to “English” law, women’s access to courts at the grass-roots level was limited, she added.


Expanding on that remark, another delegate said that after the reform of the primary justice system, the jurisdiction of the local chiefs had been heavily curtailed.  The main challenge had been to present the chiefs’ forums as alternative forums and to make it understood that civil courts would take precedence over them.


Regarding how the Convention could exist within the dualist system of law, the same delegate said that Malawian courts were allowed to refer to international law to determine the constitutionality of the national law.  However, court decisions would never be directly based on international law.  Temporary special measures, too, would be instituted under the Gender Equality Statute and not the Constitution.


On why the quota set aside for female students at university was “low”, another delegate replied that the Government was currently discussing an increase in that number.


To clarify the issue further, another delegate explained that an agreement signed at a 1997 Southern African Development Community (SADC) summit had declared that 30 per cent of positions at all levels would be held by women.  The President of Malawi had since then voiced the need to increase that number.


Experts’ Comments and Questions


GLENDA P. SIMMS, expert from Jamaica, congratulated the delegation members on their efforts so far but noted that there seemed to be some confusion over the meaning of “gender”.  She said that it was an analytic tool that could be used to help modify social and cultural patterns firmly entrenched in Malawian society that contributed to prejudices against women and girls that were defined in the report.  “Girls had to bow, while boys only needed to squat”, she noted, “so that where women’s heads touched the floor men merely had to touch their knees”.  There was need to stand up against gender discriminatory socialization process, she said, including with the help of men in power.


Turning to legislation to suppress trafficking and exploitation of prostitution, she said that 8,000 refugees and asylum-seekers were being hosted in Malawi.  Women in refugee camps were the main victims of trafficking, most of whom were sent to the Republic of South Africa.  What was the Government doing to protect those women?  Was prostitution in urban centres being dealt with?  She asked the delegation to consider why the men in Malawi “needed” prostitutes.  Girls were dying of HIV/AIDS in large numbers, she remarked.


Country Response


On socialization and sensitization, a representative from Malawi said that mothers were being actively targeted because they were primarily responsible for socialization of Malawian children.  The Government had also looked at the role that Chiefs could play in that area at the grass-roots level.  Sensitization of the men was a delicate issue -- “When men become defensive they close up”, she remarked.


Regarding the women’s participation in public life, she said that at the grass-roots level that number was, in fact, close to a 50-50 split between men and women.  At teaching colleges, it was already a requirement to have 50-50 participation from both groups.


On the subject of human trafficking, a 2002 report on that subject had placed Malawi on the Tier-2 watch list, which the delegate admitted was “bad”.  However, much progress had been made in the following 12 months, as shown by subsequent reports.  In Malawi, 1.2 million children were orphans, 15 per cent of whom belonged to child-headed households.  Many of those children were driven to living on the streets and were sexually abused.  The Ministry had opened centres to house and feed those children, and provide skills training and grants to help them get off the streets.


Experts’ Comments and Questions


ROSARIA MANALO, expert from the Philippines and Committee Chairperson, opened the floor to non-task-force members.


DORCAS COKER-APPIAH, expert from Ghana, raised a question regarding the recently passed Prevention of Domestic Violence Act and asked for more details on it.  Turning to the question of trafficking, she asked whether Malawi had any monitoring mechanisms to evaluate the occurrence of trafficking within its borders.


Country Response


One representative replied that the Act prevented domestic violence against all members of the household, including the husband, wife, children and other dependents.  Under the Act, victims could apply for a protection order, prohibiting the accused from committing any more violence.  Counselling was also provided.


Amendments had been submitted that would protect women a man had deliberately not chosen to marry, and to protect a former spouse, but so far they had not been considered by Parliament.  Another delegate added that, at present, spousal rape was not considered a crime under the laws of marriage and divorce.


On the refugee problem, no monitoring mechanism existed at present although the issue was being studied by Government with the idea of creating a policy.  Malawi’s borders were extremely porous, she added.


Experts’ Comments and Questions


At this juncture, HUGUETTE BOKPE GNACADJA, expert from Benin, asked where women brought their complaints after the traditional justice forums had been suspended in 1994.  Could complaints be addressed directly to the Office of the Ombudsman, or must they first be addressed to the courts before being referred to the Ombudsman?  Was the Office able to assist those people to bring their cases back to court?


She remarked that from her reading of the report, she sensed a low degree of political will to move forward on the gender sensitization of Malawi’s laws.  Was this the case?

Country Response


A representative from Malawi replied that the office of the Ombudsman, Law Commission, Human Rights Commission and anti-corruption bureau were established by the Constitution as independent bodies to help women in the legal sphere.  The Human Rights Commission had a broad mandate, including ensuring that cases were referred to the correct bodies.  It also assisted in referring cases back to court.  In terms of remedies, there were mechanisms through which complainants could receive redress through the country’s Legal Aid Office, as well as the Human Rights Commission.


Experts’ Questions and Comments


At this juncture, DUBRAVKA ŠIMONOVIĆ, expert from Croatia, voiced her observation regarding the difficulty faced in fully integrating the Convention into the country’s legal structure.  Recent changes in Malawi’s laws, such as the abolition of customary laws, should be achieved without delay, and she urged the delegation to invoke article 2 (on Policy Measures) in calling for such action.


ZOU XIAOQIAO, expert from China, said the country report discussed bad traditional practices including discrimination but did not mention any Government actions to counter them.  To end discrimination of women in political life, what had the Government done?  Were there any education campaigns for men in the mass media?  Since the last country report there had been some increase in the number of women in political life, but percentages were still low.  In 1997, Malawi had signed the Southern African Gender Equality Declaration which aimed to have women in 30 per cent of all political posts.  What policies and programmes were there in Malawi to promote women in political life?  Were there any special temporary measures like quotas to improve women’s participation in political life?  There were no responses to that question in the written response form.


In civil service recruiting, did women have the same benefits and opportunities as men? she asked.  Were there any measures to ensure that?  Did Malawi treat tradition and social prejudice as reasons for women not participating in political life?  Did the Gender Ministry have any programmes to train women in that?  What NGOs had taken part in Government-sponsored campaigns to promote women in managerial and decision-making posts?  Did the Government have targeted plans to train young women for diplomatic careers?


DORCAS COKER-APPIAH, expert from Ghana, said that under current law, a Malawian woman married to a foreign man could not transmit her nationality to her children fathered by that foreign man.  Would the proposed citizenship and nationality bill and amendments deal with that?  The country report said that under the Immigration Act women were dependent on male figures and could not migrate unless under the custody of a man.  Would the new law remove this dependency on a man?


Country Response


One delegate said that in 2004, thanks to a high level of activism by the non-governmental organization gender network and other partners, the number of women in Parliament jumped from 8 per cent to 14 per cent.  Financial support had also been provided by the Norwegian Government.  A better electoral system was needed to boost the number of women in political life.  A quota system and affirmative action should be put in place.


Female ministers and the parliamentarian network had joined forces to promote women in Parliament and local parliament elections.  They had visited Uganda and Rwanda where women accounted for more than 40 per cent of the parliamentary network.  It was necessary to take advantage of the constitutional review process to get more into parliamentary posts in Malawi.


Another delegate added that women represented 30 per cent of Malawi’s parliamentary network thanks to meetings on gender equality issues and national radio and television campaigns promoting women parliamentarians launched by the Ministry and non-governmental organizations.


Another delegate said there was no wage discrimination between men and women in civil service posts.  In terms of programmes to end discrimination in civil service, the Government had developed the “Gender Mainstreaming of Management of Human Resources in Public Sector” manual.  In the past, women on job interviews were asked if they had husbands, which had nothing to do with their qualifications.  Women with children were denied job training.  The manual aimed to change sexist attitudes among managers.  Three training workshops had been conducted so far for top-level civil service managers, and more were planned for the future for lower-level managers.


Concerning the citizenship issue, the Malawian law had been amended.  Under the revised law, a Malawian women married to a foreign man could retain her citizenship and could pass on her citizenship to both her foreign husband and their children.  Regarding foreign travel permits for women, the requisite amendments to the Immigration Act had not yet been passed by Parliament.  However, the practice was such that Malawi women citizens held their passports in their own right and could travel outside the country in their own right without being dependent on their husbands.


Regarding the issue of affirmative action for women in diplomatic careers, another delegate said there were no career diplomats in Malawi and, thus, no affirmative action programmes.  There was no Government pool of career diplomats.


Experts’ Comments and Questions


FRANÇOISE GASPARD, expert from France, asked about women’s participation in the decision-making process at the local level, remarking that in places like India, the high participation of women in that capacity had had considerable impact on women’s lives in the field.  Indeed, several problems in Malawi affected women more acutely than men, such as access to water.


Country Response


In response to Ms. Gaspard, one representative said that local government elections would soon take place, and that a parliamentary Women’s Caucus and the Gender Coordination Network were working hard to promote women’s participation.  Also, grass-roots community-based organizations were popularly seen as training grounds for women.


At this point, MERIEM BELMIHOUB-ZERDANI, expert from Algeria, praised the near doubling of female participation in politics and public life, though small, from 8.8 per cent (1991) to 14 per cent (2004).  She understood that human and financial resources available to tackle such problems were scarce in Malawi and asked whether the delegation knew that their Government was entitled to financial assistance from several United Nations agencies, as determined by several international commitments.


Thanking Ms. Belmihoub-Zerdani for her concern, one representative from Malawi said her country regularly relied on assistance from groups such as the United Nations Population Fund (UNFPA), Oxfam and other development partners.


Experts’ Comments and Questions


Ms. SIMMS, expert from Jamaica, noted that female teachers were predominant at the primary school level.  Were they also encouraged to work in secondary schools?  In addition, were they encouraged to take up administrative positions, such as that of school principal?  She then noted that boys tended to drop out of school because of discipline problems, while girls did so because of pregnancy.  Had programmes for pregnant girls been set up, so that they could continue studying during those nine months?  Were they taught not to view their pregnancies as “wrong”?  Were men made to feel responsible when they made women pregnant, and were there laws to send men to jail for sexual relations with underage girls?


In terms of eliminating the portrayal of stereotyped roles in textbooks, she asked if attention had been paid to racial stereotyping, especially in textbooks obtained from abroad.


Ms. GABR, expert from Egypt, asked about the labour law.  What was being done to build the capacity of women in the workforce?  How were labour laws enforced, and were there any sanctions in cases on non-compliance?  Were there laws to protect women workers during times of pregnancy and childbirth?  What of protection from sexual harassment?  Regarding refugees and their ability to work, was data being collected on that issue?  What was Malawi’s “grey economy” like?  Also, were women in Malawi normally able to obtain loans and establish businesses?


Country Response


Responding to the question on textbooks, one representative said that primary-school textbooks were printed locally, making it easier to control their content.  However, books used at the secondary and university level did come from outside and did not receive the same level of scrutiny.


On the subject of pregnant schoolgirls, another delegate remarked that establishing special programmes for them was “an interesting idea” and was worth considering further.  In Malawi, there was a tendency for girls to be laughed at if they became pregnant out of wedlock, she said.  Some were made pregnant by other pupils or their teachers; when the boy or man in question was found out, they were dismissed.  In some cases, marriage was put forward as a solution.


Regarding secondary-school textbooks, she said they were presently being reviewed by a team of experts to ascertain their level of gender sensitivity.


Another delegate addressed the question on refugees and their employment, stating that they were free to run businesses such as shops, hawker stalls or drive minibuses -- “anything that a typical Malawian did”.  On the ability of women to obtain credit, she said at the medium-scale level, there was no discrimination as long as the person had enough collateral.  Microcredit schemes existed for smaller businesses as well, where women had been seen to benefit most.


The enforcement of labour law was “fairly adequate”, added another delegate.  It was the informal labour market that provided the most challenge.  In terms of sexual harassment, he said that although the law did not address the issue directly, the law provided other means with which to combat it.


Experts’ Questions and Comments


MARY SHANTHI DAIRIAM, expert from Malaysia, noted the problem of power relations in reproductive and sexual health rights and asked about the comprehensiveness of women’s health programmes.  Was there an inter-ministerial mechanism to address educational gaps, harmful traditional practices and the powerlessness of women?  Did Malawi’s political leaders have campaigns to address health issues?  Were there campaigns to distribute condoms, encourage female education and discourage female pregnancies?  Were there any plans to implement the recommendations of a study on cultural and traditional practices relative to the Convention on the Elimination of Discrimination against Women and the Convention on Rights of the Child?  Would the Law Reform Commission use recommendations of that study?


ZOU ZIAOQIAO, expert from China, asked if the State poverty alleviation policies targeted rural women.  Had the Government conducted an assessment of poverty alleviation?  What Government measures had been adopted to assist rural women?  The country report noted that, while access by women to credit had risen, generally, it had in fact declined for rural women.  Was the Agricultural Development Facility run by the Government or by a private or international organization?  The country report said that few women had access to bank loans.  Did the Government have any plans to give women access to credit or provide them with advisory services so they could use microcredit to eradicate poverty?


Did children in rural areas have access to free primary education? she asked.  Did the Government have programmes to educate primary school dropouts?  Had literacy rates increased among rural women in recent years?  Did the Government work with other organizations on literacy programmes in rural areas?  What was the biggest impact of the 2002 Land Act on women?  Had it solved the problem of women not having rights to land?  What health-care benefits did rural women have?  How many health-care centres were there in rural areas?  What percentage of rural women enjoyed free health-care services?  Were family planning services offered to rural women and, if so, by whom?


Country Response


Responding to the Committee’s questions, a delegate said Malawi had very comprehensive reproductive health programmes.  Community-based family planning programmes included oral contraceptives, injections, implants, tubal ligation and vasectomies.  Thanks to comprehensive maternal and natal health programmes, annual maternal mortality had dropped from 1,120 to 982.  Basic obstetrics care programmes and programmes for women who suffered complications from illegal abortions were also available.  Motorbike ambulances and other vehicles were used to transport women in rural areas to health centres for treatment.  Malawi provided adolescents with screening for syphilis and cancer.  A revised National Health Plan had been launched in 2004.


Girls’ education campaigns targeted rural areas, she said.  Girls were encouraged to finish school and were given career counselling to avoid their falling into the trap of teen pregnancy and being infected with HIV/AIDS and other sexually transmitted diseases.


In terms of the timeframe to reduce maternal mortality, Malawi aimed to achieve Millennium Development Goal number 5 on reducing maternal mortality by 75 per cent by 2015.  She added that, Malawi was, in fact, on target to reduce maternal mortality by 50 per cent by 2015.


She said she believed that the Government ran 46 health centres.  However, she would need to confirm that figure.  Hospital services were free for the poor.  Christian charities also ran charm hospitals, where the Government picked up the bill when poor people could not pay.

There were also health education campaigns, such as National Malaria Day, Tuberculosis Day and World Health Organization Day, and frequent radio messages on health issues.


Turning to human rights, she said the Human Rights Commission had conducted comprehensive studies on issues that affected women.  Many institutions were using such studies to formulate policy changes.  The Commission had used the findings to create women’s rights campaigns in primary and secondary schools.  Primary education was free for girls and boys in rural areas.


In terms of the Land Act and land customs in rural areas, another delegate said the Law Commission had just finalized review of Malawi’s land laws.  Land reform in the past few years was just one aspect of a broader agrarian reform.  The Ministry of Lands was trying to address the issue of land distribution.  Regarding the new Land Act’s impact on land ownership of women, she said that in parts of the country where the social system was matriarchal, land was passed down through a family’s matriarchal line.  In other parts of the country, where a patriarchal system was the norm, land was passed down through the patriarchal line.  A World Bank programme was under way to correct this imbalance and to address the issue of landless people.


She said Malawi had three major literacy programmes which had reached 10,000 women:  one was financed by the African Development Bank, another by the United Nations Development Programme (UNDP), and another by the Malawi Government and trade organizations.


Concerning the impact of poverty-reduction strategies, a delegate said the Ministry had benefited from the Heavily Indebted Poor Countries (HIPC) Debt Initiative.  With HIPC funds, Malawi had created a women’s economic empowerment programme that had provided services to 70,000 women thus far.  With assistance from development partners, the Government had created feeding and nutrition programmes for girls and boys, parents and orphans in rural areas.  Further, it had HIV/AIDS education programmes for both students and teachers in rural areas.


Experts’ Comments and Questions


ANAMAH TAN, expert from Singapore, asked about the national strategy to tackle violence against women.  Had its impact been assessed and if so, had action plans been adopted on ways to bring about improvement?  Would the national strategy continue beyond 2006?  She also asked about Malawi’s new inheritance schemes and whether they were user-friendly, particularly in light of the fact that women had limited access to the court.


REGINA TAVARES DA SILVA, expert from Portugal, said she was struck by the impact of harmful traditional practices on the sexual health of women, particularly that of rural women.  She noted that 58 per cent of adults infected by sexually transmitted diseases were women.  She asked what proactive measures the Government had taken to tackle that issue.


Ms. DAIRIAM, expert from Malaysia, asked about the link between women’s lack of control over their bodies and the high rate of transmission of HIV/AIDS.  Did the national health plan have any strategies to deal with gender power relations between women and men in the context of reproductive health?  Given the high level of migration of trained nurses out of Malawi and retaining health service providers, especially in rural areas, were any funds set aside by the Government to deal with this shortage?


Ms. SIMMS, expert from Jamaica, revisiting the issue of education, commented that many countries would not achieve their Millennium Development Goals without first achieving gender equality.  Had the Government considered giving scholarships to young women to pursue careers in science and mathematics?  Had any Malawi women been a candidate for a Rhodes Scholarship, for example?


Country Response


Responding to the questions on harmful practices, a representative admitted the existence of a close link between harmful cultural practices and the transmission of HIV/AIDS.  She said plans had been raised to undertake a study so that it could be used as a basis for further action.  Sensitization campaigns on this issue had just begun and were targeting local chiefs.


Another delegate expanded on the link between health and harmful cultural practices, including educating women at community centres on family planning methods or antenatal care.  Voluntary testing and counselling services were also provided.  In one district, a pilot programme called “Male Champion” had just begun, under which men were encouraged to escort their partner or wives to the hospital for HIV/AIDS testing, to increase the comfort level of women.


Also, a special unit was being set up at major hospitals in the country to help women in the case of rape.  Twenty-four-hour services had also begun to be offered, to benefit people living in the rural areas.


Turning to the subject of education, one delegate said that Malawi had scholarship programmes where outstanding girl students were given a chance to pursue further studies at preparatory academies.  Soon, distance learning for teachers and the out-of-school population would be provided to facilitate the study of science and mathematics.  A special fund for orphans had also been set up, which had enabled 1,500 boys and girls to go to school.


Another delegate responded to the question regarding the gender-based violence strategy, and whether it had undergone assessment.  She said that it had not, although the strategy itself was undergoing review.


Speaking on the subject of inheritance laws, another delegate explained that they had been completely overhauled.  Inheritance used to depend on ethnicity, while the new law emphasized inheritance by the immediate family.  The new law had also redefined the scope of “dependents”, which used to include entire villages.  It would now only include the immediate family or those who could demonstrate a clear link of dependency prior to the deceased’s death.  The regime of offences in relation to laws of succession had been widened and sentences enhanced, and the jurisdiction of the courts in relation to that law had been widened to include magistrate’s courts.


Experts’ Questions and Comments


Ms. COKER-APPIAH, expert from Ghana, asked for a response to her question earlier today regarding the citizenship bill.  Had it in fact been amended?  If so, then when?  Could a woman pass on her citizenship to her children if her husband and father of her children was a foreigner?  Could women enter into legal transactions without going through a male?  What male were they talking about, a husband, a father or a son?  What was the position of customary law?  Were any areas governed exclusively by customary law due to low literacy?  What was being done to simplify procedures and processes to make them friendlier to women?


She asked whether the State was working to pass legislation to address discriminatory practices against women.  Was it true that some civil society organizations were running literacy programmes?  Did Malawian law recognize common-law marriages?  Were there any plans to popularize the contents of the law?  Did registration of customary marriages confer any benefits and rights?


Country Response


In terms of the citizenship bill, a delegate said she believed she had already answered that question.  All bills were in draft form and were on their way to Parliament.


Another delegate added that, under the current law, Malawi female citizens lost their citizenship if they married foreign nationals.  The amendment would allow those women to keep their citizenship and also pass it on to their children.  Parliament would in due course consider those bills.  In terms of conducting business, a woman had rights in her own right to conduct business transactions without her husband or another male present.


In terms of customary law, he said the Malawian Constitution overrode customary law.  Customary law was not considered inferior to the Constitution but it was, in fact, subjected to the Constitution’s provisions.  Marriage and divorce laws were equally comprehensive.  But while laws recognized different types of marriages, including customary and common-law marriages, in terms of the rights and obligations to parties, the law was uniform.  The new law would require that marriages be registered.  It was in keeping with the protocol on the rights of women in Africa.


Addressing the issue of domestic abuse, another delegate said that a domestic violence bill had to address family privacy issues.  As for needing a man to conduct transactions, she said that often, a man was needed because the woman was illiterate.  Illiteracy among women was very high.  It was not necessarily true that a woman was forbidden to engage in transactions.  The Women’s Rights Commission was, therefore, trying to raise awareness and popularize some of those issues.  All the amendments had been accompanied with popularization measures, allowing for feedback from people on proposed legislation.


Experts’ Questions and Comments


HUGUETTE BOKPE-GNACADJA, expert from Benin, noting previous statements where statutory law contradicted the Constitution, said the Constitution would prevail.  The report indicated that the Constitution allowed for child marriage, which was in contradiction with article 19 of the Marriage Act.  She asked how that issue was going to be addressed.


Ms. GASPARD, expert from France, asked whether there would be a uniform system with respect to divorce and marriage.  Also, would that uniform system only apply to marriages engaged in after adoption of the law, or also to marriages or registered customary cohabitation engaged in before adoption?  She said a standard system for the law was necessary in order to prevent a discriminatory system.


In supporting the two previous speakers, ANAMAH TAN, expert from Singapore, noted that according to the report, there were five different types of marriages.  There did not seem to be any laws governing the matrimonial property rights in marriage.  Would the law commission look into matrimonial property law?  What would happen, in the case of a man taking a second wife and then dying, to that widow and her children?


Country Response


One delegate said the issues raised regarding the laws on marriage and divorce had all been taken care of by the law reform process that was being undertaken.  It would be better if the relevant report could be provided to the Committee.  The new regime on marriage and divorce prohibited polygamy -- a “radical” provision -- and put the age of capacity for marriage at 18 years, without any room for parental consent.  The ongoing constitutional review process would also address the issues raised relating to child marriages.


Experts’ Questions and Comments


Ms. GABR, expert from Egypt, asked for verification that the amendments to the laws were still in the drafting stage and had not yet been approved by the Parliament.


Ms. BOKPE-GNACADJA, expert from Benin, asked if the new law would foresee an amendment to the Constitution regarding child marriage, as the Constitution allowed for such marriage.


Country Response


A delegate acknowledged that laws on rules of inheritance, citizenship and marriage were still in Parliament.  The issue of child marriage was being deliberated in the review conference.


In closing remarks to the Committee, Ms. BANDA said that just a few years ago it would have been unimaginable to have a Government Ministry headed by a woman or a human rights law involving women’s rights being passed in the country.  The non-governmental organization gender network had been a valuable and important partner in advancing the cause of women’s rights.  She promised to make available the draft laws that were discussed this afternoon to the Committee members as soon as possible.  She thanked the Committee for its contributions during the session, saying that the delegation had learned many lessons.


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For information media • not an official record
For information media. Not an official record.