United Nations

CED/C/MWI/1

International Convention for the Protection of All Persons from Enforced Disappearance

Distr.: General

15 November 2023

Original: English

English, French and Spanish only

Committee on Enforced Disappearances

Report submitted by Malawi under article 29 (1) of the Convention, due in 2019 *

[Date received: 1 November 2023]

List of acronyms

CEDCommittee on Enforced Disappearance

CP & ECCriminal Procedure and Evidence Code

CSOCivil Society Organisation

LABLegal Aid Bureau

MHRCMalawi Human Rights Commission

MLAMutual Legal Assistance

MPSMalawi Police Service

NTFNational Taskforce

SCASupreme Court of Appeal

Introduction

1.The Republic of Malawi is pleased to present to the Committee on Enforced Disappearances (hereinafter referred to as ‘CED Committee’ or ‘Committee’), Malawi’s combined initial state party report under Article 29 (1) of the Convention for the Protection of All Persons from Enforced Disappearance (hereinafter referred to as the ‘Convention’ or ‘CED’). Malawi ratified the Convention on 14 July 2017, as an affirmation of Malawi’s commitment to protect all persons from enforced disappearances. This report should be read in conjunction with the Malawi Common Core Document, which provides detailed information on Malawi’s historical, political, constitutional, legal and social set up.

Preparation and structure of report

2.The present report provides an overview of the efforts made by Malawi since her ratification of the Convention. It also highlights the progress made in consolidating a culture that rejects all forms of deprivation of liberty that could lead to the enforced disappearance of persons and thus giving full effect to the Convention.

3.The report further sets out the progress made, including the measures that have been taken in a wide range of areas within the different Government Ministries, Departments and Agencies, and identifies challenges and obstacles that hinder the full protection of all persons from enforced disappearances in Malawi. The report reflects in detail the progress of implementation of Articles 1 to 25 under the Convention.

4.The present report, being an initial one, covers the period from 2017 to 2022 and reflects the State’s determination to comply with its international obligations. Its preparation, which involved an inclusive and participatory process, was led by a National Task Force (NTF) chaired by the Ministry of Justice which was established and given mandate to drafting reports for submission to the CED Committee, following the relevant guidelines. State bodies concerned with the rights enshrined in the Convention, Civil Society Organizations (CSOs) working to promote and protect human rights and the Malawi Human Rights Commission (MHRC) participated in the drafting. The full list of the members of the NTF is attached hereto as Annex 1.

5.In accordance with the reporting guidelines adopted by the Committee at its second session in March 2012 (CED/C/2 of 8 June 2012), the report, excluding the introduction, consists of two parts, covering:

(a)General legal framework under which enforced disappearances are prohibited; and

(b)Implementation of the articles of the Convention.

6.In submitting this report for the Committee’s consideration, Malawi reaffirms her commitment to human rights values and its readiness to cooperate with the United Nations human rights treaty bodies.

7.Malawi looks forward to further engagement with the Committee during the review of this report.

I.General Framework under which enforced disappearances are prohibited

A.National Legal Framework

8.While domestic legislation in Malawi does not explicitly address enforced disappearance, the Constitution, the Penal Code and the Criminal Procedure and Evidence Code (CP & EC) all tacitly recognize practices constituting enforced disappearance in its various forms in their provisions concerning violations of liberty of person.

The Constitution

9.The Constitution of Malawi does not explicitly provide for the protection from enforced disappearances but grants the following rights to all persons under the Bill of Rights:

(a)Right to personal liberty under section 18: This is very relevant to the Convention as it deals with issues of detention, and in agreement with the judgement in the case of Sindi D Ross & Co. Ltd & Others [1981-93] 10 MLR 281, in which the Court held that arbitrary detention constitutes deprivation of liberty;

(b)Freedom of movement and residence under section 38;

(c)Access to justice and legal remedies under section 41;

(d)The provision that detained accused persons should be brought before a court of law within 48 hours after arrest as provided for under section 42.

10.The Constitution under section 15 (1) also gives an obligation for the state to protect all human rights and freedoms enshrined in it.

The Penal Code (PC)

11.The Penal Code does not explicitly refer to enforced disappearance, but acts amounting to enforced disappearance are prohibited and penalized in the following sections:

(a)Kidnapping or abducting with intent to confine person under section 262;

(b)Kidnapping from lawful guardianship under section 258;

(c)Wrongfully concealing or keeping in confinement kidnapped or abducted person under section 264.

The Criminal Procedure and Evidence Code (CP and EC)

12.The following provisions of the Criminal Procedure and Evidence Code are designed to protect individuals from enforced disappearance:

(a)Section 20 which states that on making an arrest, the police officer should inform the accused or arrested person that he is under arrest, the reasons for his arrest and all rights applicable to him or her as an accused person;

(b)Section 30 which states that any police officer who arrests any person with or without a warrant should make sure to take the person arrested before a court having jurisdiction in the case;

(c)Section 161 gives the pre-trial custodial time limits for all criminal offences:

(i)Magistrates’ court: custodial maximum period of 30 days pending commencement of trial: section 161D;

(ii)Pending committal to High Court: custodial maximum period of 30 days: section 161E;

(iii)If committed to High Court: ordinarily 60 days and 90 days for serious cases, such as murder:161F and 161G;

(iv)Under sections 161G and 161H (3) CP and EC the maximum pre-trial custody time limit for homicide matters is 120 days.

13.The Pre-Trial custodial time limits set in the CP and EC play a major role in preventing enforced disappearance or offences related to enforced disappearance such that they help in preventing arbitrary detention which may be a form of enforced disappearance.

B.Regional and International Legal Framework

14.Malawi has ratified or acceded to many international legal instruments that deal with fundamental rights, including the following:

(a)African Charter on Human and People’s Rights ratified on 17 November, 1989;

(b)African Charter on the Rights and Welfare of the Child ratified on 16 September, 1999;

(c)Convention Governing the Specific Aspects of Refugee Problems in Africa acceded to on 4 November, 1987;

(d)The International Convention on Civil and Political Rights acceded to on 22 December, 1993;

(e)Optional Protocol to the International Convention on Civil and Political Rights acceded to on 11 June, 1996;

(f)The International Convention on the Elimination of All Forms of Racial Discrimination acceded to on 11 June, 1996;

(g)The International Covenant on Economic, Social and Cultural Rights acceded to on 22 December, 1993;

(h)Convention on the Elimination of All Forms of Discrimination Against Women acceded to on 12 March, 1987

(i)United Nations Convention Against Transnational Organized Crime ratified on 17 March, 2005;

(j)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime acceded to on 17 March, 2005;

(k)Protocol Against the Smuggling of Migrants by Land, Sea and Air Supplementing the United Nations Convention Against Transnational Organized Crime acceded to on 17 March, 2005;

(l)Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery acceded to on 2 August, 1968;

(m)Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others acceded to on 13 October, 1965;

(n)Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment acceded to on 11 June, 1996;

(o)Convention on the Rights of the Child acceded to on 2 January, 1991;

(p)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict ratified on 21 September, 2010;

(q)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography ratified on 7 October, 2009;

(r)Convention on the Rights of Persons with Disabilities ratified on 27 August, 2009;

(s)Convention Concerning the Prohibition and the Immediate Action for the Elimination of Worst Forms of Child Labour ratified on 19 November, 1999;

(t)Convention Concerning Forced or Compulsory Labour ratified on 19 November, 1999;

(u)Freedom of Association and Protection of the Right to Organise Convention ratified on 19 November, 1999;

(v)1951 Convention Relating to Status of Refugees acceded to on 10 December, 1987;

(w)1967 Protocol relating to the Status of Refugees acceded to on 10 December, 1987;

(x)Rome Statute of the International Criminal Court ratified on 19 September, 2002;

(y)Geneva Conventions of 12 August 1949;

(z)Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 ratified or acceded to on 7 October, 1991;

(aa)International Convention for the Suppression of Unlawful Seizure of Aircraft acceded to on 21 December, 1972;

(ab)Convention on Offences and Certain Other Acts Committed on Board Aircraft;

(ac)International Convention Against the taking of Hostages, 1979 acceded to on 17 March, 1986;

(i)Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, 1973.

Applicability of International Law

15.Under section 211 of the Constitution of Malawi:

(a)International agreements entered into after the commencement of the Constitution form part of the law of the Republic if so provided by an Act of Parliament;

(b)Binding international agreements continue to bind the Republic unless otherwise provided by an Act of Parliament; and

(c)Customary international law forms part of the law of the Republic unless inconsistent with the Constitution or an Act of Parliament.

Justiciability and Applicability of the Convention

16.Section 46 (2) of the Constitution states that any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to make application to a competent court to enforce or protect such a right or freedom and to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.

Competent Authorities

17.The judicial, administrative and other types of authorities with competence in matters covered by the Convention include:

The Judiciary

(i)Supreme Court of Appeal;

(ii)High Court;

(iii)High Court sitting as a Constitutional Court;

(iv)Magistrate Courts;

(v)Child Justice Court.

18.These institutions play a major role in hearing cases where violation of Human Rights is claimed and provide for remedies.

Office of the Ombudsman

19.The Office of the Ombudsman plays a role in investigating and determining cases where persons have suffered injustice. This includes claims related to enforced disappearances.

Malawi Human Rights Commission

20.The Malawi Human Rights Commission has the powers for the protection and investigation of violations of the rights accorded by the Constitution or any other law.

The Malawi Police Service

21.The Malawi Police Service is entrusted with the investigation of criminal cases. The cases include those connected with enforced disappearance.

Specific examples of administrative or judicial decisions

22.In national case law, there are currently no judicial decisions in which the Convention has been applied sensu stricto, but there are many cases involving violations of individual freedoms such as arbitrary arrest and detention. There are no judicial decisions in which violations of the Convention have been established.

23.In Sandra Frackson and 2 others v The Republic (MSCA Criminal Appeal No. 1 of 2018), it was stated:

“As depicted by Section 18 of the Constitution, personal liberty is a high profile right under the constitutional dispensation that exists in this jurisdiction. Thus whenever it is revoked, even by the State for alleged crime, the inclination of the law is that the circumstances surrounding such revocation be looked into at the earliest opportunity with an eye towards the possible restoration of the said liberty. Accordingly, as early as within the first 48 hours of any person’s arrest for alleged crime, or at the latest as early as by the expiry of that period of time from arrest, section 42(2)(b) of the Constitution sounds alarm bells for State institutions to see to it that the arrested person is brought before an independent and impartial court of law to there be charged or be informed of the reason for his further detention, failing which he shall be released. Further, where on such maiden appearance before the court the said arrestee has ended up being further detained by the court, under Section 42(2)(e) of the Constitution he has, and he retains, the right to be released from detention, with or without bail, unless the interests of justice require otherwise.

Rural people as they are, they stand weak against the law and against the mighty institutions of the state, which, paradoxically, exist to serve them. They are, in a sense, a vulnerable people in that they might not be as knowledgeable as someone better enlightened about what rights the Constitution accords them, or as confident as someone better resourced about how vocally to assert and claim those rights, especially where the said rights have been wantonly violated.”

24.In Kapito v Attorney General, Civil Cause 262 of 2013 [2016] MWHC (Unreported) it was stated that:

“It is imperative to appreciate that a person shall not be deprived of his or her personal liberty except where there is legal justification. This therefore means that every imprisonment is prima facie unlawful until or unless legally justifiable per Liverside v Anderson (1942) AC 206.”

II.Implementation of the articles of the Convention

Article 1

Prohibition of enforced disappearance

25.There is no legal or regulatory provision providing for the offence of enforced disappearance in the penal legislation of Malawi. However, there are offences akin to enforced disappearance such as abduction, kidnapping and confinement under which perpetrators are charged and prosecuted under sections 135 to 137, section 258 and 262 of the Penal Code, respectively.

26.Section 45 of the Constitution of Malawi proscribes derogation whatsoever with regard to the right to life, prohibition of torture and cruel, inhumane or degrading treatment or punishment; prohibition of genocide; slavery and slave-like practices; prohibition of imprisonment for failure to meet contractual obligations; prohibition on retrospective criminalization and retrospective imposition of greater penalties for criminal acts; right to equality and recognition before the law; the right to freedom of conscience, belief, thought and religion and to academic freedom; or the right to habeas corpus.

27.Section 45 (4) of the Constitution only permits derogation from other constitutionally guaranteed rights other than the above during a state of emergency, where the derogation is consistent with the obligations of Malawi under international law, is strictly required to prevent jeopardising lives in case of war, or for protection of people and facilities, in case of widespread disaster.

28.Under section 45(3) the President may declare a state of emergency only to the extent that it is provided for in this section, only with the approval of the Defence and Security Committee of the National Assembly, only in times of war, threat of war, civil war, or widespread natural disaster, with regard to specific location where the emergency exists and that the declaration of the same has been done publicly.

29.The declaration of the state of emergency shall be for a period of not more than 21 days and no longer than three months. The High Court of Malawi is given mandate to hear any challenge of the validity of the declaration, any extension thereof, action taken, including any regulations enacted under such declaration.

30.During the reporting period, there was never a state of emergency declared. However, in April 2020 Malawi declared a state of national disaster due to Covid-19 and consequently promulgated Public Health (Corona Virus Prevention, Containment and Management) Rules 2020. These rules were held to be unconstitutional as they were found to negate the essential content of the rights guaranteed under the Constitution of the Republic of Malawi.

31.Section 44 of the Constitution tackles the limitation of rights. (1) No restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society. (2) Laws prescribing restrictions or limitations shall not negate the essential content of the right or freedom in question, and shall be of general application. (3) Expropriation of property shall be permissible only when done for public utility and only when there has been adequate notification and appropriate compensation, provided that there shall always be a right to appeal to a court of law. (4) Wherever it is stated in this Constitution that a person has the right to the services of a legal practitioner or medical practitioner of his or her own choice, that right shall be without limitation, save where the State is obliged to provide such services of a legal practitioner or medical practitioner, in which case an Act of Parliament may prescribe that the choice of the legal practitioner or medical practitioner should be limited to those in Government service or employment.

32.Malawi notes that the absence of the specific offence of enforced disappearance creates a situation in which suspected perpetrators of such offence could be acquitted if the standards of proof for the other crimes of which they are accused of are not met. Malawi is, therefore, committed to working on a comprehensive legal framework that will address the offence of enforced disappearance.

Article 2

Definition of enforced disappearance

33.There is no definition in domestic law of enforced disappearance within the meaning of the Convention. However, the Constitution contains provisions that relate to situations that may constitute enforced disappearance, for example section 18 which provides that every person has the right to personal liberty and section 19 which provides for the right to dignity as follows:

(a)The dignity of all persons shall be inviolable;

(b)In any judicial proceedings or in any other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed;

(c)No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment;

(d)No person shall be subject to corporal punishment in connexion with any judicial proceedings or in any other proceedings before any organ of the State;

(e)No person shall be subjected to medical or scientific experimentation without his or her consent;

(f)Subject to this Constitution, every person shall have the right to freedom and security of person, which shall include the right not to be:

(i)Detained without trial;

(ii)Detained solely by reason of his or her political or other opinions; or

(iii)Imprisoned for inability to fulfil contractual obligations.

34.Cases of enforced disappearance are investigated and prosecuted under other crimes such as the offence of kidnapping from lawful guardianship as provided under section 258, kidnapping or abducting with intent to confine a person under section 262, and wrongfully concealing or keeping in confinement kidnapped or abducted person under section 264 of the Penal Code.

35.It can be noted that despite the absence of a definition of enforced disappearance and a specific law punishing enforced disappearance within the meaning of the Convention, appropriate measures are taken to investigate acts of the nature of enforced disappearance committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to try and punish those responsible.

36.In the absence of the specific piece of legislation dealing with enforced disappearance, the definition of the victim is more or less the same as in the Convention.

Article 3

Investigation of cases of enforced disappearance

37.The provision under which cases of enforced disappearance are investigated and prosecuted apply regardless of whether the perpetrators are private individuals acting on their own or State agents acting on behalf of the State. In Malawi, pieces of domestic legislation which criminalise arrest, detention, abduction and any other form of deprivation of liberty include the Penal Code (Cap 7:01, Laws of Malawi), the Child Care, Protection and Justice Act (Cap 26:03, Laws of Malawi) and Trafficking in Persons Act (Cap 7:06, Laws of Malawi) as follows:

The Penal Code

38.Section 135: Any person who, with intent to marry or carnally know a woman of any age, or to cause her to be married or carnally known by any other person, takes her away, or detains her, against her will, shall be guilty of a felony and shall be liable to imprisonment for seven years.

39.Section 136: Any person who unlawfully takes an unmarried girl under the age of sixteen years out of the custody or protection of her father or mother or other person having the lawful care or charge of her, and against the will of such father or mother or other person, shall be guilty of a misdemeanour.

40.Section 257: Any person who conveys any person beyond the limits of the Republic without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Malawi.

41.Section 258: Any person who unlawfully takes or induces from lawful guardianship any child under the age of sixteen years or any person of unsound mind out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person of unsound mind from lawful guardianship.

42.Section 259: Any person who by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

43.Section 260: Any person who kidnaps any person from Malawi or from lawful guardianship, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

44.Section 261: Any person who kidnaps or abducts any person in order that such person may be murdered, or may be so disposed of as to be put in danger of being murdered, shall be guilty of a felony and shall be liable to imprisonment for life.

45.Section 262: Any person who kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

46.Section 263: Any person who kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm, or ransom or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be guilty of a felony and shall be liable to imprisonment for ten years.

47.Section 264: Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be guilty of a felony and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement.

48.Section 265: Any person who kidnaps or abducts any child under the age of sixteen years with the intention of taking dishonestly any movable property from the person of such child, shall be guilty of a felony and shall be liable to imprisonment for seven years.

49.Section 266: Whoever wrongfully confines any person shall be guilty of an offence and shall be liable to a fine of K100,000 or to imprisonment for five years.

50.Section 267: Any person who imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

51.Section 268: Any person who habitually imports, exports, removes, buys, sells, traffics or deals in slaves shall be guilty of a felony, and shall be liable to imprisonment for ten years.

52.Section 269: Any person who unlawfully compels any person to labour against the will of that person shall be guilty of a misdemeanour.

Child Care, Protection and Justice Act

53.Section 78:

(1)A person who, unlawfully takes, retains or conceals a child without the consent of the parent or without the consent of any other person who has lawful custody of the child commits an offence and shall be liable to imprisonment for ten years.

(2)For the purposes of this section, lawful custody may be conferred on a person by – (a) the operation of any written law; (b) judicial or administrative decision; or (c) a lawful agreement.

54.Section 79:

(1)A person who takes part in any transaction the object or one of the objects of which is child trafficking commits an offence and shall be liable to imprisonment for life.

(2)For the purposes of this section, child trafficking means the recruitment, transaction, transfer, harbouring or receipt of a child for the purposes of exploitation.

Trafficking in Persons Act

55.Section 2 “trafficking in persons” means recruiting, transporting, transferring, harbouring, receiving or obtaining a person, within or beyond the territory of Malawi, through – (a) threats or use of force or coercion; (b) abduction; (c) fraud or deception; (d) abuse or threats of abuse of power or position; (e)abuse or threats of abuse of position of vulnerability; (f) abuse or threats of abuse of the law or legal process; or (g) giving or receiving of payments to obtain consent of a person having control of the trafficked person, for the purpose of exploitation of that person.

56.Section 14:

(1)A person who trafficks another person commits the offence termed trafficking in persons and shall, upon conviction, be liable to imprisonment for fourteen years without the option of a fine.

(2)The consent of a trafficked person is immaterial, where any of the means set out in section 2 have been used.

57.The Criminal Procedure & Evidence Code governs the investigation, examination and trial of alleged perpetrators. As far as the investigation is concerned, criminal investigation officers, under the authority of the Director of Public Prosecutions (DPP) are responsible for investigating and establishing violations of criminal law, gathering evidence and searching for the perpetrators. If criminal proceedings are initiated, the officers carry out the tasks entrusted to them by the court. The officers under the DPP include officers of the Malawi Police Service and lawyers in the Directorate of the Public Prosecutions. However, other agencies like the Malawi Human Rights Commission, Independent (Police) Complaints Commission, also carry out investigations on cases related to arrest, detention, abduction and any other form of deprivation of liberty which are akin to cases of enforced disappearances.

58.The alleged perpetrators are tried by the competent courts as specified in the CP & EC with all guarantees of a fair trial granted under section 42 of the Constitution of the Republic of Malawi which includes the right:

(a)To be informed of the reason for his or her detention promptly, and in a language which he or she understands;

(b)To be held under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State;

(c)To consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State;

(d)To be given the means and opportunity to communicate with, and to be visited by, his or her spouse, partner, next-of-kin, relative, religious counsellor and a medical practitioner of his or her choice;

(e)To challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law; and

(f)To be released if such detention is unlawful.”

Article 4

Criminalising enforced disappearance

59.Enforced disappearance is not yet separately defined as a crime qualitatively distinguishable from other offences that may be related to, but different in nature from, enforced disappearance, such as abduction, abduction of children, arbitrary arrest, arbitrary deprivation of liberty torture and deprivation of life or similar offences covered by the Penal Code and other laws. In the case of Joseph Kapinga and another v Republic, Criminal Appeal Number 22 of 2015, the High Court upheld the conviction and custodial sentence of the appellants on the offence of abduction of a child. In this case the accused were alleged to have transacted in the buying of a child of 7 years for the purpose of exploiting the said child. In the case of The State v The Officer In-Charge, Ex Parte: Banda & Others (Judicial Review 28 of 2018) [2022] MWHC 139 the court held that indiscriminate police sweeping exercises and arrests are an affront to the constitutionally guaranteed right to liberty and therefore unconstitutional.

60.The above cases clearly show that despite the absence of the offence of enforced disappearance in Malawi’s statute books, people have been prosecuted for offences akin to the elements of enforced disappearance.

Article 5

Enforced disappearance as a crime against humanity

61.Under national law, enforced disappearance or acts connected to enforced disappearance are not expressly classified as crimes against humanity. In international law, crimes against humanity are classified as such when they are committed as part of a widespread or systematic practice against the civilian population. However, the offence of enforced disappearance has not yet been classified as a crime against humanity in Malawi.

62.Enforced disappearance is considered a crime against humanity pursuant to the Rome Statute of the International Criminal Court, to which Malawi is a party. Malawi ratified the Statute on 19th September 2002. It is listed among the acts constituting crimes against humanity committed on a widespread and systematic basis against the civilian population. Under section 211 of the Constitution of the Republic of Malawi any international agreement entered into force after the commencement of the Constitution forms part of the law if so, provided by an Act of Parliament. However, customary international law forms part of the law of the Republic unless it is inconsistent with the Constitution. Malawi does not have a specific legislation on crimes against humanity.

63.According to article 7 of the Rome Statute, enforced disappearance “means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”.

64.In Malawi, although not expressly enshrined under domestic law, “crimes against humanity include deportation, genocide, enslavement and the widespread and systematic practice of summary executions, abductions and subsequent disappearance of persons, torture and inhuman acts carried out on political, philosophical, racial or religious grounds as part of an organized campaign against a section of the civilian population”. The domestic courts have not yet prosecuted anyone for enforced disappearance as a crime against humanity.

65.Malawi considers taking steps to expressly classify in national law, acts that constitute enforced disappearances as crimes against humanity. Despite not prosecuting anyone for genocide, Malawi extradited a 1994 Rwandan genocide suspect Vincent Murekezi to Rwanda.

Article 6

Criminal responsibility

66.Under the positive law of Malawi, the criminal responsibility of the perpetrators of an offence and their accomplices is governed by the Penal Code and the Criminal Procedure and Evidence Code. Under section 21 of the Penal Code criminal responsibility is attached to any person who commits the offence, any person who abets or aids or counsels or procures any person to commit an offence as follows:

“(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:

(a)Every person who actually does the act or makes the omission which constitutes the offence;

(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)Every person who aids or abets another person to commit the offence; and

(d)Any person who counsels or procures any person to commit the offence.

(2)In a case arising under subsection (1) (d), the accused may be charged with himself committing the offence or with counselling or procuring its commission.

(3)A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4)Any person who procures another to do or omit to do any act of such a nature that if he had himself done the act or made the omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.”

67.Section 9 of the Penal Code establishes that a person may be held criminally liable only for their own actions. Pursuant to section 244 of the Penal Code no criminal responsibility shall attach to a person who carries out an act that is prescribed or authorized by a law or regulatory instrument.

68.However, section 169 (2) of the Malawi Police Service Standing Orders (1995), promulgated under section 8 of the Police Act (Cap 13:01, Laws of Malawi) provides that a senior officer shall be personally responsible in a situation where he or she orders a junior officer to carry out an illegal act. Similarly, section 264 of the Penal Code attaches liability to a person who conceals the kidnapping or abduction of a person, and such liability shall be the same as if a person had committed the kidnapping or abduction.

Article 7

Appropriate penalties

69.Malawi reaffirms her commitment to the principle of the rule of law in its Constitution. The Penal Code does not specifically address enforced disappearances and contains no reference to cases where the victim is a pregnant woman. However, sections 135 and 258 of the Penal Code do refer to the abduction of women and children.

70.The punishments for the related indirect enforced disappearances depend on the seriousness of the acts committed. For example, section 135 of the Penal Code provides for imprisonment for 7 years for abduction of a woman to carnally know her. Section 258 provides for kidnapping from lawful guardianship, and under section 263 of the Penal Code a person is liable to be sentenced to imprisonment for 10 years while where there is an abduction for purposes of committing a murder, one is liable to imprisonment for life.

71.Mitigating circumstances and grounds for exemption from punishment are provided for when the victim is released more or less promptly and/or when the perpetrators submit themselves to authorities.

72.Under the law, torture, death, illness and serious mutilation of the victim are considered to be aggravating circumstances. Examples include cases where the arrest or abduction is carried out by persons wearing or appearing to wear official uniform or insignia or persons assuming a false identity or using a fake official order, or where the person abducted, arrested, detained or kidnapped is subjected to physical torture, inhumane treatment or conditions. The situation may lead to life imprisonment and applies if the torture results in death, serious injury or permanent disability.

73.It should be noted that in Malawi, mandatory death penalty was abolished and declared unconstitutional by the Constitutional Court in the case of Francis Kafantayeni & others v Attorney General, Constitutional Case No. 12 of 2005.

Article 8

Statute of limitation in respect of enforced disappearance

74.The legislation in Malawi does not establish a statute of limitations for the offence of enforced disappearance, since the offence is not yet covered by the Penal Code.

75.It has already been shown that the domestic criminal law does not expressly classify offences related to enforced disappearance as crimes against humanity. However, all the offences in the Penal Code in relation to enforced disappearance are not subject to any statute of limitation. Under section 41 of the Constitution every person is guaranteed the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law.

76.In addition, Malawi ratified the Rome Statute of the International Criminal Court, which provides for the non-applicability of statutory limitations to war crimes and crimes against humanity, and, on 26 April 2018, the National Assembly authorized the ratification of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. This fundamentally strengthened the legal protection against genocide, crimes against humanity and war crimes which are akin to or has elements of enforced disappearance as contemplating the commission of such crimes on the territory of Malawi would be potentially risking prosecution by the Court.

Article 9

Jurisdiction over enforced disappearance

77.The High Court has original jurisdiction to hear and try all criminal and civil matters as provided under section 108 of the Constitution hence it has the jurisdiction to hear and try offences connected to enforced disappearance. The Constitution guarantees the right to fair trial to any person under section 42.

78.The Constitution and the Courts Act, 2017 (Cap 3:02, Laws of Malawi) have established courts that are competent to try any offence, including those similar to enforced disappearance, committed on its territory or on-board aircraft or ships registered in Malawi, or allegedly perpetrated by one of its nationals, or when the victim is one of its nationals as in line with the Penal Code.

79.Thus, any Malawian national who commits an act classified as a serious offence punishable under the law of Malawi outside the territory of Malawi may be prosecuted and tried by the courts of Malawi.

80.The CP & EC also states under section 66 that “every court has authority to cause to be brought before it any person who is in Malawi and is charged with an offence committed within Malawi or partly within and partly beyond Malawi or which according to law may be dealt with by it and to deal with the accused person according to its jurisdiction.”

81.Malawi is a party to several conventions and agreements that provide for mutual legal assistance and extradition. Malawi has enacted a specific Act on Extradition, the Extradition Act (Cap. 8:03, Laws of Malawi). Malawi has also enacted the Mutual Assistance in Criminal Matters Act (Cap. 8:04, Laws of Malawi) which lays out general rules and procedures on extradition.

82.The notable examples of cases in which Mutual Legal Assistance was requested from Malawi are that of Vincent Murekezi, a Rwandan Genocide suspect and Ewaba Howa, a Tanzanian murder suspect. Mutual Legal Assistance was requested by the governments of Rwanda and the United Republic of Tanzania, respectively, and they were extradited.

83.Additionally, Malawi extradited to Tanzania Lwiba Haonga who was wanted for murder charge in Tanzania in 2020. In 2021, the United Republic of Tanzania extradited to Malawi Fulaha Adam Kajiba and Kingstone Adam Kajiba who were wanted for the offence of murder committed in Malawi under Mutual Legal Assistance mechanism.

Article 10

Pre-trial detention and access to consular services

84.Pretrial detention for all offences is strictly regulated by the CP & EC depending on the nature of the offence and the court that has jurisdiction to try the detained person. For example, under section 161D of the Penal Code, for offences triable by subordinate court the accused person may be held in lawful custody, pending commencement of his or her trial for a maximum period of 30 days. The offences of kidnapping or abducting with intent to confine, kidnapping from lawful guardianship, wrongfully concealing or keeping in confinement kidnapped or abducted person are all triable by magistrate court. The pre-trial custody limit for an offence of enforced disappearance would therefore be 30 days.

85.In practice, foreign nationals suspected of committing an offence are granted access to diplomatic channels through the Ministry of Foreign Affairs. After that, the Ministry would contact the Embassy/Consulate of the person under investigation to notify them of the situation of their national and the facts of the alleged case. For stateless persons, Malawi makes contacts with representatives of the state where he or she usually resides.

Article 11

Obligation to prosecute or extradite

86.Under section 41 and 42 of the Constitution of Malawi and the Criminal Procedure and Evidence Code the authorities competent to investigate or prosecute alleged acts of enforced disappearances in Malawi are:

(a)The Director of Public Prosecutions;

(b)Public prosecutors appointed in accordance with the CP & EC;

(c)Criminal Investigation officers appointed in accordance with the law;

(d)Independent Complaints Commission;

(e)Malawi Human Rights Commission.

87.All the public bodies stated above follow standard procedures when investigating and prosecuting in order to establish facts relating to offences akin to enforced disappearance. Currently, witnesses are protected by existing court orders within criminal proceedings. However, the Malawi Law Commission has commenced the development of a comprehensive law on the protection of witnesses and whistle blowers.

88.Under the territorial application of the Penal Code, courts in Malawi will have jurisdiction to try accused person where the alleged offence was wholly committed outside the jurisdiction of the court. In such cases, the person has to be extradited to the state where he can be tried of the offence committed.

Article 12

Reporting and Investigation

89.Malawi does not have specific procedure relating to reporting cases of enforced disappearances as such domestic laws apply. Section 42 of the Constitution provides protection to any person during arrest, detention and guarantees the right to fair trial. Every person who is detained, including every sentenced prisoner, shall have the right to be informed of the reason for his or her detention promptly, and in a language which he or she understands; to be held under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State; to consult confidentially with a legal practitioner of his or her choice; to be informed of his or her choice; to be informed promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State.

90.In accordance with the CP & EC, all the guarantees granted pertain to the authorities competent to clarify the facts of a case of enforced disappearance.

91.Under section 83 of the CP & EC, magistrates are responsible for receiving and arresting complaints and reports of wrongdoing and deciding how to deal with them. Magistrates also have the power to make an arrest by themselves and report to police about the commission of an offence. Where proceedings are discontinued, they must notify the complainant. Public prosecutors can also commence proceeding by presenting a charge sheet to the court.

92.Section 83 (2) of the CP & EC states that a complaint may be made by any person who believed that an offence has been committed. In the event that competent authorities refuse to investigate reported cases, section 41 of the Constitution guarantees every person’s right to approach the court or tribunal for an effective legal remedy. The complaint can also be lodged with the Malawi Human Rights Commission or the Independent (police) Complaints Commission.

93.Section 15 (2) of the Constitution states that any person or group of persons with sufficient interest in the protection and enforcement of rights under this Chapter shall be entitled to the assistance of the courts, the Ombudsman, Malawi Human Rights Commission and other organs of Government to ensure the promotion, protection and redress of grievance in respect of those rights.

94.The Malawi Human Rights Commission (MHRC) established under section 129 of the Constitution is an independent body which is entrusted with the duty of protection and investigation of violations of the rights accorded by this Constitution or any other law either by application on a person, or a group of persons or on its own motion. The MHRC also makes independent reports to the Executive, Parliament and international treaty bodies.

95.The Office of the Ombudsman established under section 120 of the Constitution is also independent and is entrusted with investigating claims where individuals claim to have suffered injustice. The Ombudsman may recommend cases to the Director of Public Prosecutions for prosecution if found to be criminal in nature.

96.Additionally, Malawi has established an Independent Complaints Commission under the Police Act whose mandate, among others, is to investigate complaints by the public against police officers.

97.Therefore, Malawi has effective mechanisms in place to investigate cases of enforced disappearance when they arise.

Article 13

Extradition

98.Malawi has enacted the Extradition Act which provides for conditions of extradition and how extradition can be requested. It has also concluded treaties with several States within the framework of mutual legal assistance and judicial cooperation. Some of the obstacles related to implementation of the Act include Dual Criminality Principle and absence of Extradition Treaty with the requesting or host country.

99.Although not on offences of enforced disappearances, Malawi extradited Vincent Murekezi, Ewaba Howa and Lwiba Haonga of Rwandan and Tanzanian nationality respectively for offences of genocide and murder respectively. This followed requests by the suspects’ respective countries and that all due processes were followed and respected in accordance with the Extradition Act.

100.Malawi also requested the extradition of Flaha Adam Kajiba and Kingstone Adam Kajiba murder suspects from the United Republic of Tanzania.

Article 14

Mutual Legal Assistance

101.Malawi has since enacted the Mutual Assistance in Criminal Matters Act which lays out general procedure in issues of Mutual Legal Assistance.

102.To date, Malawi has not received requests for mutual legal assistance in relation to acts of enforced disappearance. However, in the event that Malawi receives such a request, it will provide the legal assistance to the requesting state since the relevant law on the matter is already enacted.

Article 15

International Cooperation

103.To date, no requests to assist victims of enforced disappearance or to provide help with locating them or securing their release have been made or received by the authorities of Malawi. Therefore, no concrete examples can be provided in this area.

Article 16

Non-refoulement

104.Malawi has taken a major stride in ensuring compliance with this article by enacting the Extradition Act.

105.Under section 6 of the Extradition Act, extradition or surrender may not be granted where the accused is at risk of torture or any cruel, inhuman or degrading treatment.

106.Section 6 of the Act further provides that Malawi cannot grant extradition of a fugitive offender if it is established that:

(a)The offence of which the fugitive offender is accused or was convicted is an offence of a political character;

(b)The request for his surrender (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions;

(c)That he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions;

(d)If charged with that offence in Malaŵi he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

107.All officials involved in making decisions on expulsion, refoulement and extradition are trained in criminal procedure, the maintenance of law and order, and compliance with international conventions on the promotion and protection of human rights.

Article 17

Prohibition of Secret Detention

108.Section 16 of the Constitution guarantees the right to life while section 18 of the Constitution guarantees every person the right to personal liberty. Section 19 of the Constitution proscribes violation of the dignity of all persons. It follows from the Constitution that the life and dignity of the human person are sacred and protected. No person may be deprived of his or her liberty for having committed an act, unless the act was an offence defined and punishable by law prior to its commission. The Constitution also protects everyone from detention on the basis of his or her political views.

109.Deprivation of liberty may take the form of police custody or pretrial detention. The rules governing police custody are set out in the Constitution and the CP & EC. Section 42 of the Constitution provides that no person shall be kept in custody for more than forty-eight hours before being taken to court to be charged. It is further provided that every person has a right to be released from unlawful detention.

110.Secret detention is therefore prohibited, since only places established by law may be used for detention purposes. Such places include prisons, police stations, courts and generally all premises used for investigations by criminal investigation officers. In all these different detention facilities, a record must be kept of the identities of the persons detained, the reasons for their detention, the date and time of the start of detention, etc.

111.Under section 42 of the Constitution all detained persons have among other rights, the right to:

(a)Be informed of the reason for his or her detention promptly, and in a language which he or she understands;

(b)Be detained under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State;

(c)Consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State;

(d)Challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law;

(e)Be given the means and opportunity to communicate with, and to be visited by, his or her spouse, partner, next-of-kin, relative, religious counsellor and a medical practitioner of his or her choice; and

(f)Be released if such detention is unlawful.

112.Under section 161D to 161H of the CP & EC a person can only be in lawful custody (one sanctioned by court) after the expiry of the Constitutionally guaranteed 48 hours, the minimum period being 30 days and the maximum being 120 days. The said provisions safeguard any form of enforced disappearance against any person.

Article 18

Access to information concerning a person deprived of liberty

113.Section 37 of the Constitution guarantees every person the right of access to all information held by the State or any of its organs at any level of Government. Malawi enacted the Access to Information Act which provides for the right of access to information in the custody of public bodies and the processes related to obtaining that information.

114.It has also been shown that the Constitution guarantees detained persons the right to, inter alia, legal assistance (even if it means on the expense of the state), to communicate or be visited by family members and medical care.

115.Similarly, all persons placed in pretrial detention may receive visits under certain conditions, and judges may not, in any case, deny them access to their lawyer. Persons with insufficient means have a right to legal representation at Government’s expense through the Legal Aid Bureau.

116.The law guarantees the right to information for relatives of persons deprived of their liberty in all circumstances, although such persons have the right to refuse any contact or the communication of any information about the reasons for their detention.

Article 19

Protection of Personal Information

117.Section 21 of the Constitution provides for the right to privacy which provides that “Every person shall have the right to personal privacy, which shall include the right not to be subject to:

(a)Searches of his or her person, home or property;

(b)The seizure of private possession; or

(c)Interference with private communications, including mail and all forms of telecommunications.”

Article 20

Restriction on the Right to Information

118.Section 37 of the Constitution states that “every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights”.

119.Access to information may be restricted on account of the confidentiality of a judicial investigation, protection of a person, health of a person, security of the country and legally privileged information as enshrined in domestic law. The nature and duration of any restrictions depend on the sensitivity of the case at hand.

Article 21

Release

120.Malawi has a vibrant legal framework and practice to ensure reliable verification of the release of persons deprived of their liberty. Under the Prisons Act and in practice, every detainee who is released is subject to a release order, and is issued with an exit pass by the prison administration which also sends a notice of release to the judicial authority. When a detainee is admitted, the date of release and, where applicable, the decision or law justifying the release are noted in the prison register.

121.When persons are held by individuals (in the event of hostage-taking, false imprisonment or kidnapping, for example), the police authorities that carry out their release must draw up a report.

Article 22

Sanctions for Failure to Record and Refusal to Provide Information

122.Pursuant to section 42 of the Constitution, any person deprived of his or her liberty may apply for release with or without bail or by application of habeas corpus.

123.This has been applied by the courts for example in the case of Chitsa & Chitsa v Rep High Court, Principal Registry Miscellaneous Criminal Application 160 of 2009 (unreported) in which it was held that if a person is deprived of liberty unlawfully (i.e. has neither been charged nor brought to a court of law or lawfully remanded) she or he can apply for habeas corpus.

124.The courts have also provided compensation to remedy the deprivation of liberty i.e. in the case of Ken Williams Mhango v Attorney General, Civil Cause No. 980 of 1998 (unreported) in which the court awarded compensation to the claimant for unlawful detention.

Article 23

Training

125.With regard to the protection and promotion of human rights in prisons, several training courses have been organised for training of authorities on human rights and freedoms.

126.Police training makes no specific reference to provisions on enforced disappearance. In practice, however, the courses taught at police training schools cover aspects of the prohibition of unlawful detention. The training on preliminary investigation procedures included in criminal procedure classes places an emphasis on the need to respect human dignity and the obligation not to subject a person to unlawful deprivation of liberty that removes him or her from the protection of the law.

127.Similarly, the training for prison officers includes a component on human rights.

Article 24

Rights of victims of enforced disappearance

128.A victim is defined as any person who has personally suffered harm as a direct result of the offence.

129.Malawi recognises that victims of enforced disappearance have the right to access to information regarding the progress of the investigation and the case itself as provided under Article 24 of the Convention. In that regard, actions have been taken to grant this right, including through the enactment of the Access to Information Act as an addition to the right to access to information provided under Section 37 of the Constitution. The Act gives any party the right to request certain information from an office bearer.

130.The Malawi Police Service has established victim support services at 364 police formations, including stations, sub-stations, posts and units across the country. In each formation, at least two officers have been trained to handle cases of violence, disappearances in a human right’s sensitive manner, child-friendly and victim-centred way.

Article 25

Protection of Children

131.There is no record of cases relating to children submitted to enforced disappearance as described under this article. As such, Malawi’s legislation is yet to address this issue.

132.However, under section 23 of the Constitution, the state has the mandate or responsibility to protect children from economic exploitation or any treatment or work, or punishment that is or is likely to:

(a)Be hazardous;

(b)Interfere with their education; or

(c)Be harmful to their health or to their physical, mental or spiritual or social development.

133.The entire Child Care, Protection and Justice Act sets out child protection measures in accordance with the Convention on the Rights of the Child on juvenile jurisdiction and responsibilities.

134.The adoption of the children has been a centre point in the laws of Malawi after the adoption of David and Mercy by American star Madonna in the cases of In Re: Adoption of Children Act (Cap. 26:01); In Re: David Banda [2008] MWHC 243 and In Re: Adoption of Children Act Cap. 26:01; In Re: CJ A Female infant [2009] MWSC 1. Malawi is working on a new bill in regard to the adoption of children.

135.To ensure the best interests of the child, the country has created several reformatory homes that house the children which have been on the wrong side of the law. These are there for the purpose of reforming the children as they await to be sent back to the society.

Conclusion

136.Malawi remains committed to its obligations under the Convention. The Government continues to undertake considerable efforts towards continued compliance with its commitments under the Convention as well as facilitate the implementation of recommended measures.

Annex 1

List of Members of the national task force

1.Ministry of Justice (MoJ)

2.Office of the President and Cabinet (OPC)

3.Ministry of Defence

4.Ministry of Foreign Affairs

5.Ministry of Gender, Community Development and Social Welfare (MoGCDSW)

6.Ministry of Health

7.Ministry of Homeland Security

8.The Judiciary

9.Malawi Police Service

10.Malawi Prison Service

11.Office of the Ombudsman

12.Legal Aid Bureau

13.Malawi Law Commission

14.Malawi Human Rights Commission (MHRC)

15.National Statistical Office (NSO)

16.Chancellor College, Faculty of Law

17.Catholic University

18.National Initiative for Civic Education (NICE)

19.Paralegal Advisory Services Institute (PASI)

20.MISA (Malawi)

21.Catholic Commission for Justice and Peace (CCJP)

22.Evangelical Association of Malawi (EAM)

23.Public Affairs Committee (PAC)

24.Muslim Association of Malawi (MAM)

25.Centre for Human Rights and Rehabilitation (CHRR)

26.Human Rights Defenders Coalition (HRDC)

27.Centre for the Development of People (CEDEP)

28.Human Rights Consultative Committee (HRCC)

29.Livingstonia Synod Church and Society

30.Youth and Society (YAS)

31.Youth-Net and Counselling (YONECO)

32.Lawyers Forum for Human Rights

33.NGO Gender coordinating network (NGO-GCN)

34.Plan International (Malawi)

35.Centre for Human Rights, Education, Advice and Assistance (CHREAA)