COMMITTEE ON THE RIGHTS OF THE CHILD

Twenty-ninth session

SUMMARY RECORD OF THE 765th MEETING

Held at the Palais Wilson, Geneva,

on Thursday, 24 January 2002, at 10 a.m.

Chairperson: Mr. DOEK

CONTENTS

CONSIDERATION OF REPORTS OF STATES PARTIES (continued)

Initial report of Malawi

The meeting was called to order at 10.05 a.m.

CONSIDERATION OF REPORTS OF STATES PARTIES (agenda item 4) (continued)

Initial report of Malawi (CRC/C/8/Add.43; CRC/C/Q/MALA/1; written replies of the Government of Malawi to the questions in the list of issues (document without a symbol distributed in the meeting room in English only))

At the invitation of the Chairperson, the members of the delegation of Malawi took places at the Committee table.

Ms. DAFTER (Malawi), introducing the initial report of Malawi (CRC/C/8/Add.43), said that since ratifying the Convention in 1991, Malawi had made significant advances in addressing the rights of the child. Following the transition in 1994 from a one-party system to a multiparty system of government, Malawi had instituted various reforms in governance with a view to ensuring that all citizens could enjoy the freedoms provided for in the Constitution. The Constitution specifically provided some rights and protection for children in the Bill of Rights, which stated that “all children regardless of the circumstances of their birth are entitled to equal treatment before the law”.

As well as providing free primary education, the Government had introduced measures to address recurrent problems affecting children at school. Access to basic education had been placed at the centre of poverty reduction strategies as funding to primary schools throughout the country had been steadily increased. The Government was now trying to address the problem of disparity in access to education between boys and girls.

Greater emphasis had been placed on the provision of primary and preventive health-care services, in an attempt to address the issues of infant, child and maternal morbidity and mortality. A range of initiatives was being introduced under the 1999-2004 National Health Plan, including a programme to extend immunization, one to prevent mother-to-child transmission of HIV/AIDS, one to manage early childhood illnesses and one to provide youth health and voluntary counselling services. There was a high prevalence of HIV/AIDS in Malawi which had a negative effect on Government programmes, as extra resources had to be provided to support the population of children orphaned by AIDS, which had grown to 2 million.

Through the foster care and adoption schemes, the Government continued to provide care for children deprived of a family environment. Programmes were also being designed to assist children in conflict with the law. A pilot scheme for young offenders had been designed focusing on community-based solutions rather than custodial sentences. Government officials made frequent prison visits to monitor the welfare of young children living with their mothers in prison and such children now received vaccinations and food supplements as part of the Government’s health care policy. Efforts were being made to separate juveniles from adult prisoners.

In order to protect children from abuse, the Government had set up a National Task Force to examine all issues relating to child labour, which was widespread in Malawi, particularly in the agricultural sector. All new legislation to regulate child labour had been endorsed by Parliament. Various initiatives were also being taken to address the issue of the commercial sexual exploitation of children, including child trafficking.

Recognizing that early child development was crucial to the development of Malawi’s human capital, the Government had embarked on a wide range of programmes to promote childhood development. They included a project for the management of early childhood illnesses and the Community Based Childcare Project (CBCC), which targeted children in rural areas. Most of the activities mentioned were implemented as part of the National Programme of Action for the Survival, Growth and Development of Children, which had been adopted in 1993.

It was recognized that most of the initiatives would not succeed unless national laws were synchronized to address the issues. The Government was therefore seeking to bring legislation, policy and practice in conformity with the provisions of the Convention.

Mr. CITARELLA acknowledged that since the adoption of the State party’s Constitution in 1995, efforts had been made to incorporate the Convention into domestic law. However, the Convention’s status was still unclear. No specific programmes were in place relating to the best interests of the child.

The country’s extreme poverty was clearly an obstacle to the implementation of legislation in the field of social policy. Another obstacle was the fact that almost 90 per cent of the population lived in rural areas where traditional customary laws applied. As a result, many of the Constitutional laws adopted in 1995 had not yet been put into practice at regional level. The Constitution had provided for the establishment of three independent government bodies to promote human rights, namely the Human Rights Commission, the Law Commission and the office of the Ombudsman. However, without appropriate legislation, they were unable to fulfil their mandates.

Two bodies seemed to be responsible for the coordination of the implementation of the Convention: the Child Rights Unit within the Human Rights Commission, and the Children’s Affairs Division of the Ministry of Gender, Youth and Community Services; the role of the two bodies clearly overlapped, yet neither had been responsible for any concrete measures to coordinate the implementation of the Convention.

Another issue that merited attention was the discriminatory nature of many of the provisions of the Constitution. For example, the Constitution provided no clear definition of the child; for the purposes of human rights, it defined a child as any person under the age of 16 years, yet children were regarded as having criminal capacity at the age of seven years. In addition, the law differentiated between boys and girls regarding the age of sexual consent. Cultural practices prevailed in rural areas, and were often discriminatory against children. Other groups suffering discrimination were refugee children and disabled children. It was puzzling that the Births and Deaths Registration Act made birth registration compulsory only for children born of parents who were not of African origin. Finally, he underlined the fact that child labour was a serious problem.

The CHAIRPERSON invited the members of the Committee to put questions to the delegation relating to general measures of implementation and the definition of the child.

Ms. OUEDRAOGO said the report and other sources of information made available to the Committee revealed a fragmented approach to the implementation of the Convention in Malawi. The National Programme of Action for the Survival and Development of Children in the 1990s failed to take into account all the provisions of the Convention.

The report revealed that customary law, which had a powerful influence in Malawi, did not necessarily take into consideration the principles of the Convention. It would be interesting to know what measures had been taken to address the inconsistencies. For example, did traditional leaders have a role to play in implementing the rights of the child?

The State party should provide further information about the functioning of the Human Rights Commission. What financial and human resources did it have at its disposal, what exactly was its role, and was it represented at local level? Further clarification was needed of the relationship of the Human Rights Commission with the special Committee on Children’s Rights mentioned in paragraph 27 of the initial report.

More information should be provided about education and training. The report failed to mention what training was provided for professionals working with and on behalf of children, and no indication was made of whether or not the Convention was incorporated into the school curricula. More details were also needed about the Government’s cooperation with non‑governmental organizations (NGOs). She understood that there was a coalition of NGOs that worked directly with the Government. Could the State party indicate how they coordinated their activities?

She welcomed the fact that the State party was taking steps to harmonize the inconsistencies in its legal definitions of the child. The Constitution granted every person the right to education and stipulated that primary education should consist of at least five years; however in the Committee’s opinion, five years of compulsory education was not enough and compounded the problem of child labour. The Employment of Children and Young Persons Act provided that there should be no written contracts for children under 12 years; in the Committee’s view, the age was fixed too low and contradicted article 23 of the Constitution which stipulated that children under 16 could not work.

She expressed her concern that while the Constitution recommended 18 as the age of marriage for all persons, it did not expressly prohibit a child from marrying. The cultural practices prevailing in rural areas meant that during initiation rites, girls as young as 10 years were prepared for possible marriages. It was essential that girls should be provided with greater protection.

Ms. CHUTIKUL said she welcomed the fact that NGOs had been actively involved in the preparation of the initial report. She also commended the State party for having established a national-level coordinating body for NGOs. She would like to know more about the role of the Child Rights Unit, which had been created in 1999 within the Human Rights Commission with the aim of promoting child rights. Did it have a mechanism for receiving complaints of child rights violations? It would be useful to know whether the Unit included representatives on matters relating to the rights of survival, development and protection. It would also be interesting to learn what obstacles the Unit had encountered in accomplishing its mission, and what measures could be taken to overcome those difficulties. Some confusion had arisen because the report revealed that the Ministry of Gender, Youth and Community Services had created a Children’s Affairs Division to coordinate all policies affecting the interests and welfare of children. The State party should clarify the functions of the coordinating institutions, as it was unclear which one was ultimately responsible for monitoring the implementation of the Convention. The Committee would also be grateful for more information about how the Ministry functioned at local level. Mention had been made of district planning units; it would be useful to know whether the units had a legal status and whether the text of the Convention had been distributed so that those working in the units were aware of their role.

The community-based projects mentioned in the State party’s introductory statement highlighted the important role played by the communities in assisting the Government to carry out its work in promoting the rights of the child. It would be interesting to know what measures were envisaged to raise awareness at community level of the Convention and of the need to change harmful traditional practices.

Ms. TIGERSTEDT-TÄHTELÄ said she was impressed by the structure of public administration in the State party, which comprised central government, local government and the traditional authorities. The report revealed that local authorities were responsible for providing a number of services, and that local authority councillors were elected by the community. It would be interesting to know whether they received a budgetary allocation from the State or whether they depended on the revenue from local taxes.

She acknowledged that the percentage of the national budgetary allocation for health and education was low because of the economic challenges faced by the country: statistics for 1998 revealed that only 5.4 per cent of the budget had been earmarked for education and 2.8 per cent had been earmarked for health. Did recent statistics indicate an increase or decrease in budgetary allocations to those sectors? Which sector of society received the main budgetary allocation?

According to the report, the first Policy Framework for Poverty Alleviation Programme had identified youth and orphans as vulnerable groups. Had the results of the Programme been evaluated, and had the Programme been successful in reducing poverty? A new programme had been approved in December 2000, in close cooperation with the International Monetary Fund. What had been the impact of structural adjustment policies on services for children?

Ms. AL-THANI, noting that an anti-corruption bureau had recently been set up, asked whether it had been effective.

Given the importance and influence of village leaders in everyday life, had any effort been made to draw their attention to the provisions of the Convention?

The Convention having been published in Chichewa and Chitumbuka, she asked whether Malawi intended to translate it into the country’s other major languages.

Ms. SARDENBERG enquired whether Parliament was involved in implementing the Convention.

She noted that the Ministry of Gender, Youth and Community Services had been responsible for preparing the report and for implementation of the Convention. Presumably the term “youth” was taken to mean up to age 16; that was not in conformity with the Convention, which covered persons up to 18.

She sought further information on the regional workshops held to produce the report.

She commended Malawi for including a human rights approach in its programming and for having established many human rights institutions, and asked whether the Office of the Ombudsman was empowered to deal with children’s rights. The fact that the Policy Framework for Poverty Alleviation Programme targeted youth and orphans was a positive step. In that context, she asked how the Vision 2020 long-term programme took account of children’s needs.

Noting that an effort had been made to bring national legislation into line with the Convention, she asked whether the draft booklet “Children and the Law” had been finalized and whether the proposed amendments of laws relating to children which it contained had been submitted to Parliament.

She would like to know whether the policy guidelines on orphans, the early childhood development policy and the initiative on the integrated management of childhood illnesses had been finalized and implemented.

Ms. KARP asked about the extent to which the districts collected revenues.

She also enquired whether decisions by village leaders were monitored. Did village leaders impinge upon the decision-making power of the local authorities, or were decisions taken together? How was a child protected in respect of decisions taken by village leaders? It seemed that customary law took precedence over statutory law in many aspects of the lives of children. How did the Government protect the rights of children in districts with a weak revenue base? Was there a system for offsetting such imbalances? Did traditional leaders and local authorities receive training on how to take the provisions of the Convention into account in their decisions? What had been done to bring customary law into line with the requirements of the Convention and protect children when their rights were violated as a result of customary law? Did the Law Commission intend to carry out a study of that issue?

As she understood it, registration of birth and death was mandatory only for children of non-African origin. Thus, there was no incentive for parents to register the birth of their children. That being the case, how were statistical data collected? How could the Government ascertain the rate of infant mortality and other crucial indicators of relevance to the implementation of the Convention?

She also asked whether the Convention could be invoked in the courts and whether the courts could refer to it in a decision.

Mr. AL-SHEDDI said that, according to his information, a law provided for life imprisonment for minors who had sexual relations with a girl under 13 years of age. Did that mean that children could be sentenced to life imprisonment?

Ms. DAFTER (Malawi) referred to a number of bills which had a bearing on family matters and children, including one to curb the incidence of domestic violence and another on wills and inheritance.

The Convention had been discussed and ratified by Parliament. The Government worked hand in hand with NGOs on many projects of relevance to children. Recently, legislation on NGOs had been passed. When an NGO had a contribution to make to Parliament, it was taken up in the debate.

With regard to employment, she said that new legislation had been adopted on child labour. Employment of children under the age of 14 was prohibited, as was employment of children between 14 and 18 in occupations that were harmful to their moral development. The legislation provided for punishment of up to five years’ imprisonment for violations.

Mr. KAWG’OMBE (Malawi) said that there was no conflict between local chiefs and elected councillors. The task of the chiefs was to ensure that traditional values were maintained and that programmes were in line with existing values. Sometimes the chiefs themselves agreed to do away with unacceptable traditions. The elected officials knew that they had to respect customs. If they wanted to break with those customs, they had to negotiate with the chiefs.

All ministries had recently been asked to draw up sector devolution plans and decide which activities should be decentralized and which should be retained by the central Government. For example, the central Government decided on the establishment of pre-school play groups at the district level, thereby maintaining control over standards, curricula and textbooks. Decisions on day-to-day issues were left to the local authorities.

On the question of revenue, each district had a development fund, which pooled resources. Each district assembly collected revenue from real estate taxes, the sale of motor vehicle licences and the like. Some of the revenue went to the central Government, but most of it remained in the district. Each district had a different revenue base, and the central Government allocated funds to poor assemblies that could not raise enough revenues to run their activities.

On the question of the ombudsman, he said that the press often reported cases in which parents had complained to the ombudsman that their child had not been properly treated by a teacher; where appropriate, the ombudsman imposed a fine. That showed that the ombudsman was empowered to deal with children’s issues.

The anti-corruption bureau had been doing a good job, not just in terms of the number of cases dealt with, but also in heightening awareness of the dangers that corrupt practices entailed.

Mr. KILEMBE (Malawi) said that prior to 1994, Malawi had been a very closed society with a dual criminal justice system. Most of Malawi’s legislation had derived from the British system. Upon becoming independent, Malawi had continued to use British laws. When the multiparty system had come into existence in 1994, there had been an attempt to synchronize the various tribal systems. Malawi’s population lived mainly in rural areas; traditional values and customary laws were very strong and sometimes conflicted with common law.

Even today, there was confusion about the definition of a child. For the Constitution, the age of majority was 16, whereas the Young Persons Act and the Probation of Offenders Act set the age of majority at 18, and the Adoption Act defined children as being under the age of 21.

Following the adoption of a new Constitution in 1995, the Law Commission had begun work on a review of Malawian law, with a view to achieving greater standardization. In the context of that review, the Children and Young Persons Act, the Marriage Act and the Affiliation Act were of most relevance to children’s rights.

Ms. KARP asked whether the Law Commission was examining customary law with a view to adapting it to the requirements of the Convention.

Mr. KILEMBE (Malawi) said that customary law was very difficult to change, owing to the predominantly rural and traditional character of Malawian communities. The work of the Law Commission did encompass customary law, but change was a lengthy process, involving constant dialogue with local communities. The strategy developed in the National Programme of Action for the Survival and Development of Children, which was closely linked to that of the National Platform of Action on Women, launched in 1996, envisaged, inter alia, the introduction of changes to customary law. However, the implementation of reform programmes had been delayed by economic problems and the emergence of the HIV/AIDS pandemic. A National Task Force had been set up to devise ways of mitigating the impact of HIV/AIDS, and a Child Rights Unit had begun work within the Human Rights Commission to monitor implementation of the Convention.

Mr. CITARELLA said that without the collection of disaggregated data, it would be difficult to assess the impact of reforms. According to the Constitution, children were defined for the purposes of human rights as persons under the age of 16 years. He understood that the definition of the child differed from one law to another, but that the judicial system gave judges the right to declare laws unconstitutional. In that context and in comparison to domestic law, he would appreciate an explanation of the status of the Convention.

Ms. KARP said that it was unclear to what extent the Child Rights Unit of the Human Rights Commission had assumed a coordinating role for child rights policy, owing to a shortage of resources in the Ministry of Gender, Youth and Community Services. She asked for clarification that the Child Rights Unit was responsible for monitoring and that the Ombudsman received complaints relating to violations. The delegation should also explain whether the two bodies cooperated and exchanged information with each other.

Mr. KILEMBE (Malawi) said that the Ministry of Gender, Youth and Community Services formulated policies on childcare and protection but, owing to financial difficulties, relied on a network of partners, including the Child Rights Unit, to carry some of those policies out. The Ombudsman could receive complaints about human rights violations from adults or children, and was entitled to refer complaints to the Child Rights Unit for investigation. Owing to budgetary constraints data collection remained a problem, but the Government also relied on statistics from other sources, such as NGOs active in the field of child rights.

Ms. TIGERSTEDT-TÄHTELÄ asked whether any ministries besides the Ministry of Gender, Youth and Community Services were involved in the implementation of the Convention.

Mr. KILEMBE (Malawi) said that his Government was aware that children’s rights covered issues that required mainstreaming into a range of sectors. The Ministry of Gender, Youth and Community Services coordinated the activities of numerous NGOs, church organizations and government departments, such as the Ministries of Education and Health, all of which played a role in implementing the Convention.

Ms. CHUTIKUL asked for confirmation that no single body existed with responsibility for coordinating the comprehensive implementation of the Convention. The approach appeared to be largely sectoral, with a degree of coordination from the Ministry.

Mr. KILEMBE (Malawi) acknowledged that separate ministries elaborated policies in their individual sectors. Nevertheless, the Ministry of Gender, Youth and Community Services prepared guidelines for all activities relating to children’s rights, which other departments were required to follow.

Ms. DAFTER (Malawi) said that the Convention had been translated into three local languages, Yao, Chichewa and Chitumbuka. The Government also worked together with NGOs and community youth groups, organizing seminars and workshops with a view to disseminating the Convention.

Mr. KILEMBE (Malawi) said that his Government was pursuing a policy of decentralization, with the decision-making emphasis moving towards district and local‑community committees. For instance, the National Task Force on Orphans was assisted in its work by a series of technical subcommitees at the district level. The Orphan Care Programme had been launched in 1996 to respond to the growing number of orphans whose parents had died of AIDS. It was designed to provide community-based care to orphans and other vulnerable children, including those living on the streets.

Efforts were being made to introduce the mandatory registration of births and deaths, but considerable resistance had been encountered at the community level. According to the Government’s plans, registration would be made to the village head, who would subsequently report the figures to the district administration.

Pursuant to the Children and Young Persons Act, children under the age of 18 years could not be sentenced to death. The emphasis of the administration of juvenile justice was on rehabilitation and education, and efforts were made to address the problems in the community which might have led the child to commit an offence.

Mr. KAWG’OMBE (Malawi), in reply to a question regarding the extent to which poverty hindered efforts to implement the Convention, said that 65 per cent of the population lived in extreme poverty, and that 70 per cent of that proportion were women. In view of the gender dimension to poverty, his Government sought to empower women by providing them with training and literacy programmes. The scheme had enabled many women to earn a living, which was of indirect benefit to their children.

The CHAIRPERSON requested information concerning the country’s Vision 2020 process, in connection with poverty eradication.

Mr. KILEMBE (Malawi) said that the Vision 2020 process was a long-term strategy for achieving a sustainable economy based on productivity rather than on consumption and dependence. One plan was to enhance the country’s human capital for producing goods and services, with the focus on children as an investment in future development. Vision 2020 was, however, out of date, since worsening poverty and national indebtedness had precluded greater expenditure on social issues. The authorities had shifted to a poverty-reduction strategy, in negotiation with the World Bank and the International Monetary Fund (IMF), to enable the country to divert savings made through the Highly Indebted Poor Countries (HIPC) Initiative to social spending. They would be addressing the 75 per cent illiteracy rate, the huge imbalance in the availability of school places and ways of mitigating the effects of HIV/AIDS, which, with many people in hospital or caring for the sick, took a severe toll on communities’ productivity.

Consideration was being given to ways of addressing extreme poverty through the safety‑net programme, especially for the most vulnerable groups comprising several subsectors, including disabled children, orphans and the high rate of malnutrition. In an effort to improve children’s early development, a pilot community-based programme aimed at children’s emotional and psychosocial development was under way in 13 districts and would be replicated countrywide in an effort to reduce drop-out rates.

Ms. DAFTER (Malawi) said that although most HIV/AIDS orphans were placed in orphanages, where they received training, home-based care had now been introduced.

Ms. AL-THANI asked whether human rights, and the Convention in particular, had been incorporated into the school curriculum.

Mr. KILEMBE (Malawi) said that although human rights did not exist as such in the curriculum, survival skills for children and youth were taught as a non-examinable subject in primary and secondary schools. Those skills included the prevention and effects of HIV/AIDS and sexually transmitted diseases (STDs), and children were taught how to exercise their rights and encouraged to complain if they considered them to have been infringed. The Convention

was disseminated to schools and churches by youth NGOs. It had been translated into Chichewa, the most common local language, and Chitumbuka, the language most widely spoken in the north, and would be translated into others.

The CHAIRPERSON invited Committee members to put to the delegation follow-up questions, as well as questions concerning general principles, civil rights and freedoms, and family environment and alternative care.

Mr. CITARELLA observed that there were no specific programmes or policies directly governing the best interests of the child, nor was there any mention thereof in the Constitution. Which traditional practices were seen as being in children’s interests? According to the initial report, corporal punishment at home and at school was considered good for children. What was being done to educate the grassroots regarding its adverse effects and what the best interests of the child really entailed?

There appeared to be serious discrimination in all areas. While it was the subject of a provision in the Constitution, there was no prohibition against it. Indeed, some regulations overtly condoned discrimination or even introduced it. HIV/AIDS orphans were often abandoned or neglected and children with special needs were also disparaged within the family and society. He would also like to know how nationality could be acquired or lost. And could the delegation comment on cases of children whose names were changed in accordance with the status they acquired at various stages of life? Were there any plans to amend the law that made birth registration a requirement for non-Africans alone? Another source of discrimination was the use of English as the main language of instruction, which could only contribute to the illiteracy rate.

Ms. OUEDRAOGO asked whether the Government intended to increase the minimum duration of compulsory education, which was five years. Although abortions were prohibited, the rate was still very high among young girls. Were there any traditional practices that were detrimental to children’s health? And was infanticide a common occurrence? Turning to civil rights and freedoms, she asked how police records were established in a country where a passport and driving licence were the only identity documents, and neither was held by the vast majority of the public.

Mr. AL-SHEDDI remarked that trial of children in open courts, with no regard for their privacy, and detention in police cells with adults could hardly be in their best interests. He asked whether the Constitutional Technical Review’s recommendation that the best interests of the child should be incorporated into the Constitution had been followed up. Could the delegation shed light on Government action regarding the disappearance of children, sometimes in connection with traditional practices?

Ms. AL-THANI asked what was being done to eradicate discrimination against girls, who did not enjoy inheritance rights, and disabled children, who were deprived of adequate access to health and education. Although a child’s views might be respected in the courts, that was not the case in hearings by village chiefs, who tried and judged most family-related cases. Also, how were the authorities addressing the fact that children born out of wedlock were often

given no name or one that was humiliating? Could the delegation justify the practice of granting custody to the more financially secure parent - invariably the father - and say what plans there were to change it, on the basis of the child’s best interests rather than the parents’ finances?

Ms. KARP asked whether the delegation could provide examples of court decisions in which the Convention had been invoked. Also, while the Children’s Parliament had pinpointed child abuse, including abuse by teachers, as a major problem, there appeared to be no consistent policy for dealing with it. She asked whether there was any strategy to curb violence against children at school, at home and in institutions. Was corporal punishment handed down as a penalty by the courts?

She inquired whether services existed for treating abused children, whether the country possessed the professional skills to deal with trauma resulting from incest and similar abuse and whether there were plans to conduct a study on domestic sexual abuse. The lack of any such infrastructure had made for a vicious circle, in which children did not complain because there was no infrastructure and vice versa. The abusive initiation system that entitled the village chief to have sexual intercourse with girls who had reached the age of puberty was totally at odds with a child’s right to protection against sexual abuse.

Ms. SARDENBERG asked to know the current status of the initiatives mentioned by the delegation concerning orphans and other vulnerable children and whether they had been finalized. Turning to general principles, she said that article 12 was one of the cornerstones of the Convention and provided for children’s views to be heard in any situation affecting their lives. Malawian society was evidently not ready to comply and there was no deliberate policy to encourage children’s participation in society. Since that situation prevailed at the grassroots level under the Common Law, what plans did the Government have for remedying it through legislation?

The CHAIRPERSON, noting that the role of the extended family was dwindling in urban areas, asked whether the intention was to boost it or simply accept the fact. Although the large number of households headed by women was being addressed through the safety net, what special projects were there to help the poorest of the poor? Although maintenance recovery was difficult to enforce when men had no money, had any steps been taken to ensure that men paid maintenance to a female head of household when they could afford to do so?

The meeting rose at 1 p.m.