COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

WRITTEN REPLIES BY THE GOVERNMENT OF MALAWI CONCERNING THE LIST OF ISSUES FORMULATED BY THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION UNDER THE REVIEW PROCEDURE

(INITIAL TO THE FIFTH PERIODIC REPORTS DUE FROM 1997 TO 2005 RESPECTIVELY) *

[9 June 2006]

CONTENTS

Paragraphs Page

Introduction 1 - 34

I.MALAWI AND ITS PEOPLE4-184

II.GENERAL ASPECT OF RACIAL DISCRIMINATION ANDTHE INDIGENOUS POPULATION OF MALAWI 19 - 238

III.SUMMARY OF GOVERNMENTEFFORTS TO IMPLEMENT THE PROVISIONS OFTHE CONVENTION

Article 2 24 – 2610

Article 3 27 – 3010

Article 4 31- 3311

Article 5 34- 4011

Article 6 41-4312

Article 7 44 – 5413

Article 8 5514

Article 14 56 15

IV.ACCESS OF INDIGENOUS PEOPLE TO THE SYSTEMOF JUSTICE AND LEGAL PROTECTION 57 -5915

V.CURRENT OUTLOOK 60 - 6515

VI.CONCLUSION AND FINAL COMMENTS 66 -6916

VII.ANNEXURES

Note Verbale and Concluding Observations1

List of International Instruments2

2005 UNHCR Statistical Report3

Law Commission Reports4

Republic v Busharat Ahmed5

Central High Violation Investigations6

VIII.SUPPORTING DOCUMENTS

The Republic of Malawi Constitution

The Prevention of Domestic Violence Act

Special Law Commission Report on the Legal Aid Actl

The Report on the Constitutional Review Workshop

The Malawi Human Rights Commission 2003 Report

Final Draft of Malawi Growth and Development Strategy

Special Law Commission Report on the Wills and Inheritance Act

Cited Cases

Introduction

1.The Government of the Republic of Malawi (Government) as a party to the Convention on the Elimination of All Forms of Racial (the Convention)has not managed to fulfil its obligations to submit state party reports to the Committee on Elimination of All Forms of Racial (the Committee). Malawi currently has five outstanding reports before the Committee. This country situation report has been prepared at the request of the Committee and in accordance with the guidelines issued by CERD (CERD/C/70/Rev.5).

2.At its 63rd session held in August 2003 the Committee, i n order to assist the initiation of a dialogue on the measures to be adopted by Malawi to implement the Convention decided to send to Malawi a list of questions which are hereby attached as Annex 1.

3.The report is a general response to the questions and has been divided into different sections. Section I contains the general update and appraisal of the Malawian indigenous population and a description of Government policies for the elimination of all forms of racial discrimination as well as the activities that have been carried out to implement the policies in accordance with provisions of the Convention. Section II contains an analysis of some of the Articles of the Convention and information on the steps taken as well as efforts made by the Government to implement them taking into account the Committee’s concluding observations. Details of other Government actions taken to strengthen the existing policies for the elimination of racial discrimination are also given. Section III contains information on specific actions taken by the Government through social activities, especially in relation to health and education, for the indigenous population. Other topics such as indigenous participation in political and social affairs, access by indigenous people to the system of justice and legal protection. Section IV provides general information on the current position of the Government in ensuring further protection of the rights of its citizens. Section V contains a brief summary of the existing situation in Malawi regarding compliance with the provisions of the Convention and general matters on racial discrimination.

I.MALAWI AND ITS PEOPLE

Physical background

4.Malawi is a small country occupying the southern part of the East African Rift Valley, lying between 9 degrees and 17 degrees south of the Equator. It has an area of 119,140 square kilometres of which 20 per cent is water. It is landlocked, by Mozambique in the south and east, Zambia to the west, and Tanzania to the east and north. The topography is immensely varied, from the Rift Valley floor almost at sea level to mountains rising to 3,000 metres. Tied in with this are wide ranges in climate, vegetation and economic activity.

5.Malawi is divided administratively into three regions: Northern, Central and Southern Region with a total of 28 districts. The Northern Region has five districts, the Central regional nine and the Southern Region 14 districts. There are three seasons, a cool dry period from mid-April to mid-August, a hot period during which relatively little humidity builds up between August and mid-November, and a period of tropical rains between November and April. Within this broad pattern, many areas have microclimates, with annual levels of rainfall varying from 800 mm (32 inches) to 2,500 mm (100 inches).

6.The variety of landform and climate gives Malawi the ability to grow a wide range of crops numbering more than 20. However, the mostly grown crop is maize, the main staple crop, seconded by tobacco, the main cash crop. Other common food crops grown in Malawi are groundnuts, rice and cassava. Other main cash crops grown are tea, coffee and sugar. These cash crops are grown on both estates and smallholdings. The people as depend on fishing as an important source of protein.

7.There are three categories of land tenure in Malawi. The first relates to customary land. Traditional leaders allocate this land since they are de facto “owners” of the land. Each household has plots of land that have been “inherited” from their ancestors who were once allocated the land. Unallocated land is considered communal but power of allocation rests with the traditional leaders. Traditional leaders allocate land to immigrants either from unallocated communal land or from other less utilized land. Formally, the authority for customary land is vested in the President as a trustee for the people of Malawi. The second category relates to private land, which includes leasehold and freehold land. The third category relates to public land, which is used, held or occupied by the Government. There are a number of proven mineral resources but mining has so far been limited to lime and coal. Malawi has 5 national parks, 4 game reserves and 66 forest reserves which together account for 22 per cent of the land area.

8.There are five lakes in Malawi. Lake Malawi, third and twelfth larges in Africa and the world, respectively, is a valuable national asset as a source of food and fresh water. It is also as a means of communication, a tourist attraction and a home to the most diverse fish fauna of any lake in the world. The other lakes, which are much smaller, are Chilwa, Malombe, Chiuta and Kazuni.

The People

9.According to the last National Census the total population in 1998 was estimated at 9.8 million, with an annual growth rate of 1.9 per cent since 1987 as opposed to 3.2 per cent over the 1977-97 periods. The population is young: 43.8 per cent below 15 years, 53.9 per cent below 20 years and only 8 per cent over 64 years. This gives a high dependency ratio of 1.3, as opposed to 1.0 in 1987. There are more females (51.6 per cent) than males. The national population density is 104 persons per square kilometre. The Northern Region has 12.5 per cent of the population and 46 persons per square kilometre, while the Central Region has 41.1 per cent with 114 persons per square kilometre and the Southern Region has 44.6 per cent with 144 persons per square kilometre. The bulk of the population (89 per cent) is rural. The estimated total fertility rate is 6.1. The crude birth rate is 44.1 and the crude death rate is 14.1 per 1,000. About 2.9 per cent of the population are people with disabilities; about 31 per cent of them are children under the age of 15 years.

10.There is no dominant tribal grouping. In the major urban centres there are sizeable communities of both Asian and European origin involved in commerce and industry. The language for official communication is English and the commonest spoken language is Chichewa. Of late, five other local languages considered major have been introduced on the national radio as well as some programmes on the national television station. However, this is only in news broadcasts. Further, local languages are being used for instruction in junior primary classes. The major religions are Christianity and Islam, but Christianity is dominant for historical reasons. There were more Christian explorers than Arab traders. There has been very little change in the relative shares of these religions. Other religions are traditionalism, Hinduism and Buddhism, among others.

11.About 12 per cent of the labour force is estimated to be employed in the formal sector. The bulk of these (46.2 per cent) are in agriculture and fishing, 14.6 per cent in manufacturing and 13.9 per cent in community and personal services. Some 19.7 per cent of employees work in the public sector and the remainder in the private sector. The majority of the labour force not in paid employment is mostly in subsistence smallholder agriculture and few venture into the informal sector as vendors and trained on-the-job artisans.

12.Malawi’s society is characterized by the patrilineal system in the North and the two southernmost districts, and the matrilineal system in the centre and remaining districts in the south, each having its own sets of values and rules. Extended families are prominent although the nuclear family system is slowly replacing the extended family system as the chief production unit and the main source of social support. The village is organized under customary law, with authority vested in a traditional village head helped by village elders. Malawi’s villages are grouped under group village heads, sub-chiefs (STA) and traditional chiefs (TA). Traditional beliefs, customs, ceremonies, and other social and cultural factors have a powerful influence on community life. These factors partly determine social relationships, decision-making patterns, inheritance rights, the acceptability of new ideas and practices in areas such as education, health, family planning, sanitation, agriculture, borrowing and debt repayment.

13.Women are key workers and producers in the national economy. They are farmers, income earners, traders and family caretakers. They represent over two thirds of the full‑time farming population. About 70 per cent of smallholder agriculture work is done by women. The female labour force participation is estimated at 64 per cent, nearly as high as that of men (67 per cent). This does not include most of the work done by women which goes unrecorded in the official statistics since the work is not accorded economic value. Further, about 30 per cent of Malawi’s rural households are headed by women and these represent 42 per cent of the core poor. This poverty is also resource-related because about 70 per cent of the women have an average landholding size of less than a hectare, as compared to 50 per cent for the men. Again, nearly twice as many female- as male-headed households have landholdings of less than half of a hectare. According to the Human Development Report 2004, Malawi ranks 134 out of 144 countries in terms of the gender-related development index.

Government and Administration

14.Malawi received full independence in 1964 and republic status in 1966. From 1964 to 1994 the country was constitutionally under one-party rule; the President was given absolute powers in 1971. The Constitution provided for the independence of the judiciary, the executive and the legislature. However, the absolute powers of the President made that noble provision invalid. This changed with the 1993 referendum, which resulted in the adoption of a multiparty system of government, the 1994 multiparty elections won by the United Democratic Front (UDF) and the adoption of a new Constitution in 1995. The Constitution is now the supreme law of the land. It provides for separation of powers among the three organs of the State. The executive is responsible for the initiation and implementation of policies and legislation. The legislature enacts laws, while the judiciary interprets, protects and enforces the Constitution and all laws. The Constitution also provides for the establishment of the Human Rights Commission, the office of the Ombudsman and the Law Commission which are now fully operational and working in Malawi.

15.The Republic of Malawi’s legal framework is structured on common law due to its colonial history. Malawi operates on statutory law and customary laws.

16.Administration of justice normally starts at village level. Most civil cases are presided over by traditional leaders first at village head level, then sub-chief (STA) level and finally chief (TA) level. Most cases in rural Malawi are presided over by these traditional leaders, using the customary law prevailing in their areas. The formal court system starts with magistrates courts, presided over by lay, paraprofessional and professional lawyers. These are subordinate courts to the High Court. The High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and original jurisdiction to review any law. It also hears appeals from magistrates’ courts, and any action or decision of the Government. Above the High Court is the Supreme Court of Appeal, which hears appeals from the High Court and tribunals or other courts. An Industrial Relations Court with original jurisdiction over labour disputes and such issues relating to employment is provided for and has been established in 1999.

17.Malawi has three strands of public administration: central government, local government and the traditional authorities. The traditional authorities system has a hierarchy of village headmen, group village headmen, chiefs and, in some areas, paramount chiefs. Appointment is normally hereditary but is subject to confirmation by the President. This structure has an important role in the political organization of the nation and in communicating central government policies down to the village level. It is supervised by the district administration of central government. Local government is organized in a single-tier system with urban and rural assemblies. Urban assemblies are further divided into city, municipality and town assemblies. Members of assemblies are required to be elected by the community concerned. These assemblies are responsible for providing a number of services, including primary education, non‑primary road construction and maintenance, certain public health facilities and refuse disposal, and are closely supervised by the local government, a central government body.

18.The apex of central government is the Office of the President and Cabinet. The central government includes line ministries that deal with the implementation of Government policies and programmes. There are also about 55 statutory bodies established by Acts of Parliament. Some provide a specific public service, while others have a particular responsibility to develop a given activity and others are effectively business enterprises owned by the Government. Of these about 20 are categorized as commercial. There is, however, underway a programme of parastatal functional review and privatization.

ii.gENERAL ASPECT OF RACIAL DISCRIMINATION ANDTHE INDIGENOUS POPULATION OF NIGERIA

Discrimination

19.Malawi is mostly a black populated country currently has an estimated population of about 12 million people made up of over different tribal groups. The predominant tribal groups are the Chewa, Yao, Tumbuka. Lomwe, Mang’anja, Tonga, to mention only a few. Despite the numerous tribal groups with their diverse culture, language and tradition, Malawians still exhibit a cohesiveness that is a product of centuries of trade, intermarriage as well as economic contacts amongst the various groups. Malawi as such has rarely had problems relating to tribal, ethnic, religious, cultural and/or indigenous populations or population of mixed descent rarely manifest themselves within the country.

20.The civil, political, economic and social rights of all Malawians, regardless of their race, culture or religion, are ensured and well protected by the Constitution of the Republic of Malawi. There has been established by the Constitution several mechanisms and institutions to ensure a society free from all forms of racial discrimination. Some of these institutions are:

(a)the Judiciary;

(b)the Malawi Human Rights Commission;

(c)the Office of the Ombudsman;

(d)the Law Commission; and

(e)the Anti Corruption Bureau.

General Commitment of the State of Malawi as a party to the Convention

21.As correctly pointed out by the Committee in Part D of its concluding observations, the Malawian Constitution prohibits racial discrimination. Further to that Malawi’s general will to promote and protect human rights at all levels which are enforced under its judicial system and numerous pieces of legislation.

22.Furthermore Malawi is a State party to various international and regional human rights instruments further demonstrates its commitment to human rights and especially no discrimination on the basis of race. Refer to Annex 2 which contains the list.

23.Government has also put in place certain measures; legislation and policies to prevent demonstrations of xenophobia, intolerance and violence as well as the exclusion of foreigners or minority or vulnerable groups from protection against discrimination through the following measures:

(a)enforcement of the fundamental rights entrenched in the Constitution by the High court which sits as a Constitutional Court (Courts Act, Cap. 3:02 of the Laws of Malawi);

(b)accessibility of foreigners to national visas either for residence or for work (Immigration Act, Cap. 15:03 of the Laws of Malawi);

(c)conclusion and implementation of various Memoranda of Understanding and bilateral agreements to enhance economic, social, political and cultural cooperation between Malawi and other countries for instance with Tanzania and Zambia on trade related issues; and

(d)freedom of residence and employment to both nationals and foreigners in the private and public sectors.

II.COMPARATIVE SUMMARY OF GOVERNMENT EFFORTS TO IMPLEMENT THE PROVISIONS OF THE CONVENTION

Article 2

24.Malawi has continued to fulfill its obligations under article 2 of the Convention by not engaging in any act or practice of racial discrimination against persons or institutions and by upholding the enforcement of fundamental human rights entrenched in the Constitution. These fundamental human rights are uniform and apply to every person in Malawi. It can be stressed that despite the fact that Malawi has not domesticated the convention into law however section 211 of the Constitution enables the courts of law to be persuaded by the convention’s provisions. A case example is that of Republic v Thomas Chakufwa Chihana (Criminal Case No. 1 of 1992) although not a case under this Convention but portrays how much the courts are influenced by international law.

25.Various measures have been taken by Government, both at the political and socio‑economic levels, to ensure equal access to education and employment and all levels of society by tribal groups of different geographical and cultural origins, for instance there is a deliberate policy for Free Primary Education to ensure equal access to basic education by all Malawians, irrespective of their tribal, ethnic, cultural, or geographical origin or religious inclination.

26.The Constitution is founded on principles that ensure the inherent dignity and worth of each human being and that this is accorded to all individuals, groups and minorities.

Article 3

27.The Malawian Constitution clearly stipulates that there shall be no discrimination on the basis of race and various pieces of legislation enacted prior and post the Constitution have prescribed equality for every person with regard to legal protection as such it is recognized that everyone has equal rights and obligations. This is illustrated by the case of Peter von Knipps v The Attorney General (Miscellaneous Civil Cause No. 11 of 1998).

28.The 1995 Constitution has a comprehensive Bill of Rights to protect every person, this includes Malawian citizens and Non Malawians are enforced by the courts. The various rights contained in Part IV of the Constitution and are accordingly promoted and protected by our country as seen in Thandiwe Okeke v Minister of Home Affairs (Misc. App. No 73 of 1997).

29.To further ensure effective protection of these rights, the establishment of the Malawian Human Rights Commission, this is constitutionally charged with the responsibility of protecting and investigating human rights violation.

30.The Constitution under section 15(1) gives the legislature the power to promote and enforce the rights enshrined in the Constitution, however the Ombudsman, Malawi Human Rights Commission and other similar organs has also been given that mandate.

Article 4

31.Malawi as a country does operate or allow others to advocate for racial propaganda, under the Penal Code, Part II and IX stipulate that it is criminal if any person or group of persons disseminates information about racial superiority or hatred, incitement to racial discrimination as well as acts of violence.

32.The Constitution further guarantees freedom of expression however it has strictly limited this right under s. 44 on grounds that it is against recognized international human rights standards which this Convention is.

33.Furthermore, the Communications Act (Chapter 68:01 of the Laws of Malawi) requires that electronic and print media observe fundamental human rights and not broadcast propaganda of any kind including racial discrimination, racial segregation, xenophobia or apartheid.

Article 5

34.The Malawian Constitution and other enactments offer every person, equality before the law in all aspects of life. This legal protection recognizes that people have equal rights and obligations as such race cannot be a ground for any form of discrimination except as it complies with Article 2 of the Convention.

35.Legislation passed in Malawi does not distinct between a citizen and non-citizen as such redress before courts of wrongs is open to everyone. A listing of cases before the courts and tribunals can easily attest to this. For instance a look at the Judiciary’s website can provide information and attest to this (www.judiciary.mw).

36. It is recognized by the Government of Malawi that access to justice is still a challenge however for the 2006/2007 financial year, Malawi will implement the Malawi Growth and Development Strategy (MGDS) and this will help enhance the a better justice system and adherence to the rule of law by every person but most especially by Government.

37.Malawi has currently reviewed the law on Births and Deaths Registration and has now a National Registration Bill which now ensures that all children regardless of race are to compulsorily register at birth and as such the new Act once passed will repel the old legislation.

38.Malawi has not yet removed the reservations it made to the 1951 Convention relating to the Status of Refugees; however it is in the process of developing a Refugee Policy which in turn will effect the necessary legislation changes. Secondly, the Government has for the last ten years not strictly adhered to its reservations and demonstrated a relaxed approach especially with regard to health, education and employment. The country through the Refugee Committee which is set up by the Refugee Act further grants refugees the right to reside outside the designated camps on the above stated criteria including security reasons. The right to education is very much guaranteed especially for children.

39.The Government of Malawi has not deported Ethiopians and Somalis seeking asylum from Malawi without proper examination of their claims. The Statistical Report which is compiled by the Department of Disaster Preparedness together with UNCHR shows how this claim of deportation is unfounded and baseless. See Annex 3.

40.The Government has realised and taken steps to ensure that women are fully protected under the laws. It can be noted that Malawi developed a Gender Policy which has to a big degree influenced legislation which Malawi has enacted following its adoption. This year Malawi passed into law the Prevention of Domestic Violence Act which aims at protecting women from domestic violence of any nature but mostly that in the domestic arena. It should be noted that currently the Law Commission is reviewing all Gender-related laws looking at issues of Marriage, Divorce and Inheritance and have developed reports. The Law Commission is also currently in the process of coming up with a Gender Equality Bill which will also gender- related dimensions of racial discrimination. Annex 4 contains the Law Commission Reports.

Article 6

41.On the issue of effective protection and remedies for individuals aggrieved due to racial discrimination, it can be stated that since protection for this kind of violation is a constitutional right, the competent tribunals will be the High Court of Malawi, Office of the Ombudsman and Malawi Human Rights Commission as these institutions have the requisite mandates however a search through our case reports has not yielded any cases of this nature.

42.Malawians are very peace loving people as such it has become an unfortunate event that it has come to the attention of Government that the current position is that it is indigenous Malawians that are being racially discriminated against. Several instances have come before the courts of law as well as the Malawi Human Rights Commission. See Annex 5 and Annex 6. Furthermore it should be stated that the traditional institutions nor primary justice for a do not handle cases of racial discrimination or ethnic tensions, however Malawi is currently reviewing the Traditional Courts Act, and maybe this is an area Malawi might consider if brought to the attention of the set commission.

43.The law with regard to remedies against racial discrimination can be said to be in the following terms that the courts have jurisdiction to pass a sentence which has a compensatory element as well the fact an aggrieved individual has the right to bring a civil claim against the violator and seek damages. It can be stressed that Malawian courts guard this right very effectively as can be seen a quick glance at our case precedents as evidenced by a case of Mutsinze v Attorney General (Civil Cause No 55 of 1993).

Article 7

44.In the discharge of its obligation under the Convention to adopt immediate and effective measures, particularly in the field of teaching, education, health, culture and information, with a view to combating prejudice which leads to racial discrimination, the Government of Malawi has done the following in order to implement the Convention.

Education

45.Currently Malawi is reviewing its laws on education to fall in line with its various education policies as well as to conform to international standards. Constitutionally, education is the right of every person at all levels, i.e. primary, secondary and tertiary. The Government has no policy or set criteria to regulate which race or tribe is allowed to go to school.

46.Measures adopted by the Government to ensure access to education is guaranteed include the following:

(a)Establishment of the Free Primary Education Programme (FPE). This programme is essentially for ensuring that basic education gets to all pupils of primary school age in all parts of the country. The programme attempts to ensure basic amenities such as classrooms, furniture, textbooks, teaching aids and an adequate number of qualified teachers in the primary schools are provided under the programme to ensure an increase in the numbers of students as well as good quality education in the primary schools

(b)The building of several neighbourhood schools by Government to ensure that pupils do not have to travel long distances to their school.

(c)Currently in Malawi since the dawn of multiparty democracy has had a deliberate policy from government to allow schools in the three regions to educate students at primary school level in their mother tongue, currently the languages mentioned in Section 1 are the ones being used. There have been further efforts by Government and its partners to dialogue on this issue especially as it to relates to the school curricula.

47.It can be stated that no form of discrimination exists against any group in accessing education in Malawi but that Government has attempted to ensure that there are deliberate programmes that would enhance the equality of educational facilities and make education accessible to all its citizens and non citizens.

48.Malawi does contend that the current school curricula does not include programmes to combat prejudices and promote tolerance among ethnic groups however since there is a current review of the Education laws, it can be submitted that the Ministry of Education will be advised on this aspect by the Ministry of Justice and Constitutional Affairs whilst this review is being undertaken.

Health

49.The Malawian Constitution has not specifically provided for the right to health but it is captured in other Bill of Rights provisions like the right to development under section 30 as read with section 13 which captures the principles of National Policy however there is a Government policy which stipulates that there be free primary health care for all persons in Malawi.

50.Under this Health policy every individual is at liberty to go to a government hospital and accordingly register and acquire a health passport and this is done at no fee. They further have access to free medical facilities like medication and many others.

Malawi Human Rights Commission

51.The Malawi Human Rights Commission like all Government institutions has had to its financial resources cut due to constraints Malawi was facing in the past 5 years, as such its effectiveness could not have been affected because the Commission’s budget is also supplemented by its cooperating partners. However the budget for the Commission has increased from K67, 671,000.00 ($505,007.00) in the 2004/2005 financial year to K 76, 571, 550.00 ($571,429.00) in the 2005/2006 financial year.

52.The Malawi Human Rights Commission have since their inception been conducting public awareness to the citizenry through public rallies, posters, brochures and magazines which are written in English, and local languages such as Chichewa and at times Tumbuka.

Training of Government Officials

53.The Malawi Human Rights Commission between 2002- 2003 did provide some information to members of the Judiciary, law enforcement, teachers, social workers and other public officials, however since then there have been no specific trainings specifically targeting the above named officials on matters of racial discrimination. The Government of Malawi will consider in terms of teachers and social workers to also maybe incorporate into these professions teaching curricula a course or programme on racial discrimination.

54.The Government has not disseminated the Convention to citizenry; however it can make an undertaking that on the consideration of this Country Situation Report, it can publish the findings and concluding observations of the Committee.

Article 8

55. Government acknowledges that it has not ratified the amendments to Article 8 of the Convention as adopted on 15 th January, 1992 to enable state parties to speed up domestication of the Convention. The Government undertakes to take steps towards the ratification of the above stated amendments.

Article 14

56. G overnment has not yet, since ratifying the Convention invoked the Committee’s competence to receive and consider communications from individuals or groups of individuals on a violation under this instrument. However, steps will be taken following this Country Situation report to review Malawi’s implementation status.

IV.access of indigenous people to the system ofjustice and legal protection

57.The Republic of Malawi Constitution has a comprehensive Bill of Rights in Chapter IV which guarantees rights of Malawians and Non Malawians. Every person is entitled to access to justice and legal protection by invoking the jurisdiction of all lawfully constituted tribunals. Men and women alike, whatever their civil status, have equal rights and responsibilities.

58.With regard to criminal responsibility for human rights violations, the courts have continued to play their expected role as an independent arbiter in upholding the rights of any citizen. The courts have further gone in most human rights matters, been heavily persuaded by provisions of treaties and conventions that Malawi is a party to.

59.The Legal Aid Department which administers the Legal Aid Act and attempts to fulfill the Constitution provision of legally representation. The Legal Aid Department together with the Law Commission did a review of the said Act and has now come up with a Legal Aid Bill which waiting to be discussed and passed by the National Assembly.

v. CURRENT outlook

60.Malawi became a democracy again in 1994 where multiparty politics was reintroduced and thereafter the passing into law of the Republican Constitution of 1995. Since that time Malawians have exercised their rights as citizens and freely participate in the governing of their country as can be seen by the three Presidential and Parliamentary Elections that have been violence free and have resulted in national governments which have governed the country during the democratic dispensation. Government and its cooperating partners have been working tirelessly for the last 12 years in strengthening the democratic system to ensure social stability and respect for human rights. This has resulted in Malawi registering remarkable progress in the development of the country and the fight against corruption. Government will ensure that its efforts to reduce corruption, increase economic stability will ensure promotion and protection of human rights and fundamental freedoms which are protected by the Constitution.

61.Furthermore Malawi is undergoing transformation in that currently it has embarked on a massive legislative reform as can be evidenced by the various Bills waiting to be passed by Parliament but most distinctly the National Constitutional Review which is being undertaken in this year of 2006. A preliminary on the First Stakeholders’ Workshop is Annex

62.Malawi would like to acknowledge that it has not been able to submit its reports to the Committee due to several factors including inadequate resources both human and financial, as well as lack of concrete data.

63.Malawi has not yet developed any policy nor enacted any law on racial discrimination since ratifying the Convention nor has there been promulgation of subsidiary legislation to give section 20 which is the Constitutional provision for racial discrimination.

65.Malawi has developed a multi sectoral approach to state party reporting which ensures that civil society is part of the state party reporting committee, this evidenced by the list of committee members for Malawi’s report to the CRC and CEDAW.

VI. conclusion and final comments

66.Malawi would like to take this opportunity to seek from the Committee, technical assistance to enable it produce the outstanding reports under General Recommendation so as to ensure that by December 2007, these reports are submitted for consideration.

67.Malawi undertakes to publicise the concluding observations which the Committee will come up with following consideration of this country situation report and draw the attention of the Malawi Human Rights Attention to them.

68.Malawi acknowledges its commitment under the International Convention on the Elimination of All Forms of Racial Discrimination and is further committed to promoting all measures necessary to ensure its full implementation.

69.Malawi would further like to state that it has never nor does it implement any State policy directly or overtly or has enacted legislation that promotes, encourages or tolerates any type of racial discrimination. It would like to stress that Malawi is a country that has peaceful tendencies and would not tolerate any form of discrimination.

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