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Committee on the Rights of the Child examines the reports of Malawi

GENEVA (31 January 2017) - The Committee on the Rights of the Child today concluded its consideration of the combined third to fifth periodic report of Malawi on its implementation of the Convention on the Rights of the Child.  The Committee also reviewed Malawi’s initial reports under two Optional Protocols to the Convention, on the involvement of children in armed conflict, and on the sale of children, child prostitution and child pornography.
 
Introducing the reports, Samuel Tembenu, Minister of Justice and Constitutional Affairs of Malawi, said that the constitutional amendment bill, soon to be adopted by Parliament, defined a child as a person under 18 years of age and raised the age of marriage to 18 years.  Since the adoption of the marriage, divorce and family relations act in 2015, over 650,000 child marriages had been annulled.  Several pieces of legislation had been enacted to strengthen the protection of children in Malawi, including the child care protection and justice act, the national registration act, the disability act, the gender equality act, the education act, and the trafficking in persons act.  With a view to strengthening the policy environment, Malawi had developed a comprehensive policy on children, and adopted the early childhood development policy, the National Human Rights Development Plan 2016-2020, and the National Plan of Action for Vulnerable Children 2015-2019.  Structures had been set up to address atrocities committed against people with albinism, including fast-track prosecution for perpetrators, and to date over 30 per cent of the cases had been concluded.
 
Committee Experts welcomed the constitutional amendment and the harmonization of the definition of the child with the Convention, and commended Malawi for the measures taken to address gender and disability-related discrimination, and infant and child mortality rates.  Early marriages were rampant in Malawi and that was why the adoption of the law prohibiting the practice was the first and crucial step – what happened to the girls from the 650,000 dissolved child marriages, as well as to any children born in such marriages?  Experts asked about measures to end impunity for perpetrators of the widespread sexual violence and abuse of children, to put in place an effective protection of children from all forms of violence at home and in school, and also to protect albino children from violence and discrimination, including by parents.  The delegation was asked to inform about strategies in place to care for more than 1.8 million orphans in Malawi, including the community-based and progenitor systems, the support provided to adolescents caring for other children, and responses to reports of violence in care homes.
 
In the discussion on the Optional Protocol on the sale of children, child prostitution and child pornography, Experts welcomed the adoption of the anti-trafficking law and asked when the practices under articles 2 and 3 of the Optional Protocol would be explicitly criminalized.  The delegation was asked about measures to ensure the effective implementation of the Optional Protocol, including the allocation of resources to relevant Government departments and agencies, and awareness raising among the general public, law enforcement agencies, and agencies dealing with children.
 
With regard to the Optional Protocol on the involvement of children in armed conflict, Experts remarked that it had not been adopted into the law as a whole, even if some of its aspects had been incorporated into the legislation.  They cautioned about the age determination procedure for individuals without a birth certificate, and urged Malawi to widen the sources testifying on the age of the candidate.  Experts inquired about cases of recruitment of children by tribal chiefs into conflicts and disputes with other tribes, and measures taken to protect children from recruitment.

In his concluding remarks, Clarence Nelson, Committee Expert and Rapporteur for Malawi, recognized the challenges Malawi faced such as the implementation of laws, and the lack of resources and accessibility for the rural population, and commended Malawi for its commitment to improve the lives of children, including through the implementation the Convention.
 
Hynd Ayoubi Idrissi, Committee Expert and Rapporteur for the Optional Protocol on the sale of children, child prostitution and child pornography, in her closing observations urged Malawi to take better ownership of international instruments, including the Optional Protocol, as this would bring about greater efforts in the domain of coordination, awareness raising and implementation.
 
Mr. Tembenu said in his final remarks that this interactive dialogue had helped Malawi to identify issues of concern to the Committee and rethink a new approach to the matters which could be further improved.  Malawi had undertaken upon itself the obligation to implement the Convention and create a safe and healthy environment for the children of Malawi and so shape their future.
 
In his concluding remarks, Benyam Dawit Mezmur, Committee Chairperson, urged Malawi to ratify the third Optional Protocol on a communication procedure and to ensure that children received their fair share of the available resources.
 
The delegation of Malawi included representatives of the Ministry of Justice and Constitutional Affairs, Ministry of Gender, Children, Disability and Social Welfare, Human Rights Commission, and the Permanent Mission of Malawi to the United Nations Office at Geneva.
 
The Committee will next meet in public at 3 p.m. today at the Palais des Nations, to hold a meeting with States.
 
Reports

The combined third to fifth periodic report of Malawi under the Convention can be read here: CRC/C/MWI/3-5.
 
The initial report under the Optional Protocol on the involvement of children in armed conflict is available here: CRC/C/OPAC/MWI/1, and the initial report under the Optional Protocol on the sale of children, child prostitution and child pornography here: CRC/C/OPSC/MWI/1.
 
Presentation of the Reports
 
SAMUEL TEMBENU, Minister of Justice and Constitutional Affairs of Malawi, introducing the reports, informed the Committee that Malawi had prepared the constitutional amendment bill which resolved the issue of the definition of the child and the disconnect that existed between the Constitution and the laws in this regard – the bill defined a child as a person under the age of 18 and amended the age of marriage to 18 years of age.  The marriage, divorce and family relations act prohibited the marriage of persons under 18 years of age and between 2015 and now, over 650,000 child marriages had been annulled.  Several pieces of legislation had been enacted to strengthen the protection of children in Malawi, including the child care protection and justice act of 2010, the national registration act, the disability act of 2012, the gender equality act of 2013, the education act of 2013, the trafficking in persons act of 2015, and others.  With a view to strengthening the policy environment, Malawi had developed a comprehensive policy on children, and it had adopted the early childhood development policy, the National Human Rights Development Plan 2016-2020, the National Plan of Action for Vulnerable Children 2015-2019, and others.
 
Structures had been set up to address atrocities committed against people with albinism, including fast-track prosecution for perpetrators; to date it had concluded over 30 per cent of the cases.   Malawi had made progress in addressing the issue of child labour, it had strengthened the social welfare workforce by retraining over 120 social workers, and the necessary budget provisions for child-related issues had been increased from $70,000 to $1.4 million over the last three years.  Additionally, 75 per cent of the social cash transfer beneficiaries were children.  Child justice was another area that received tremendous support.  Child justice courts were being established in the country, and border district courts were being rehabilitated to make them child and victim friendly.  Special magistrates had been designated to handle child-related cases and had received appropriate training in human rights and child-related laws.  In the area of combatting child trafficking, Malawi had set up the national coordination committee and fund, and had adopted a plan of action to combat the phenomenon. 
 
The child participation component had been improved through the promotion of children corners throughout the country, the development of a facilitator’s manual and guide for children’s corners which included lessons on children’s rights, as well as the training of 600 facilitators in 2016.  With regard to violence against children, 18 one-stop centres had been set up targeting survivors of violence, including children and women, which offered comprehensive services, including medical examination, prosecution and referral to other essential services.  In closing, Mr. Tembenu noted that severe droughts and floods that had hit Malawi in the past three years had severely affected the implementation of the Convention, and urged its development partners to seriously increase support for the effective and efficient implementation of the Convention on the Rights of the Child in the country.
 
Questions from the Experts
 
CLARENCE NELSON, Committee Expert and Rapporteur for Malawi, asked about the timeline for the revision of a comprehensive child rights policy and its incorporation in the actions for children’s rights. 
 
What coordination system would be put in place to coordinate the implementation of the laws that Malawi had recently passed to strengthen the situation of children’s rights?   Which proportion of the public budget was allocated for children’s rights, and which proportion of the children’s budget was dedicated to the payment of salaries and which went directly into activities?
 
The Country Rapporteur welcomed the measures to address corruption, including the adoption of the code of ethics, and inquired about training of civil servants in the use and application of the manual, and the data on prosecutions for corruption.
 
In relation to independent monitoring, the Child Directorate within the Human Rights Commission was in place, and the delegation was asked about measures taken to strengthen the work of this specific Directorate, and also asked about awareness-raising campaigns dedicated to children’s rights.
 
There was a growing number of civil society organizations in Malawi: what was the nature of the relation between the Government and civil society?
 
What was the impact of mining on children’s rights, particularly in the Karonga district, and which measures were in place to monitor the activities of the international mining companies operating there and safeguard children’s living and a healthy environment?
 
What were the intentions concerning the prohibition of corporal punishment and what activities were taking place to inform parents about non-violent parenting and discipline?
 
There were reports about regular sweeping activities by the police and rounding up of street children – what happened to those children after they were taken into custody by the police?  What steps were being taken to eliminate police brutality against children and prosecute perpetrators?  Were there specific programmes carried out by the Government to eliminate violence against children and what budget was being allocated for that purpose?
 
On harmful traditional practices, such as sexual cleansing or pledging children as collaterals, what measures were in place to address and eliminate them?
 
What system was in place to ensure that the 18 one-stop centres for victims of violence were accessible in rural areas as well, and had sufficient resources to ensure that the expensive package of services was delivered to the children in need?  
 
OLGA KHAZOVA, Committee Expert and Co-Rapporteur for Malawi, commended the Government for the intended amendment of the Constitution and all relevant laws to ensure their harmonization with the Convention, particularly in terms of the definition of the child.  What was the probability of adoption by the Parliament of this draft legislation as expected?
 
Early marriage was rampant in the country with more than half of girls under the age of 18 being married.  The legislation prohibiting early marriage was the first and very important step which had to be coupled with awareness campaigns to educate parents on the harm they caused, with the view to eliminating the practice.  What steps were being taken in this regard?
 
On the principle of non-discrimination, Malawi had made significant progress in adopting the legislation on issues such as gender equality and disability; which resources were being allocated for their implementation and how was the awareness of the general public on the principle of non-discrimination being conducted?  Perpetrators of violence and discrimination against albino children were often parents – what was being done to create an albino-friendly environment?
 
How was the principle of the best interest of the child being applied?
 
Other Experts asked about the structures in schools and communities through which children could express their opinions, and what was being done to ensure that the birth registry was compulsory, including through setting up mobile units to ensure birth registration in remote communities.
 
Sexual exploitation and abuse of children were widespread, including in schools by their mates and teachers; the appropriate response to those incidents were lacking, and there was shame and stigma attached with reporting the abuse.  What measures were in place to end the impunity for perpetrators and protect children from sexual abuse at home and at school?  What was being done to prohibit all forms of violence against children and punish the perpetrators?
 
Responses by the Delegation
 
Responding, the delegation said that some of the strategies and activities outlined in the comprehensive child policy were already being implemented, while the policy itself was expected to be adopted by 1 June.  All resources earmarked for the implementation of the policy would go into direct activities, while staff salaries were being paid from different budget lines.
 
Several coordination systems had been put in place, including working groups in which various stakeholders met on specific topical areas.  The groups were chaired by the Ministry of Gender.
 
“Cashgate” was a very unfortunate incident that had happened in the country.  Most of the people involved in this fraud were either in prison, or their cases were before the courts.  To date, more than 13 cases had been completed, and 19 cases were ongoing.  The Government was also going after the masterminds of this corruption case.  Malawi had decided to hold a national dialogue day on anti-corruption, which would help the Government revise the current policies in place.
 
The sweeping of streets was a regular police activity to address those roaming the streets at night, which did not often involve children.  The Constitutional Court had issued a decision several days ago, declaring this practice unconstitutional.  Street children who were picked up by the police were not held by the police, but were transferred to the appropriate agencies and civil society organizations active in the area of child rights.  
 
On harmful traditional practices, the delegation stressed that time was necessary to change cultural beliefs, and said that regular awareness campaigns were ongoing with communities.  The Ministry of Health was proposing legislation on HIV/AIDS management and once it came into force it would offer a base to address some of the harmful cultural practices.
 
The mining activities had stopped for the time being because of the crash in the uranium prices.  There were non-governmental organizations which operated in the Karoka area and they, together with the Government, worked on safeguarding the rights of children living in the area.
 
Corporal punishment in schools, public or private, was discouraged and no teacher was allowed to administer corporal punishment.
 
No obstacles in adopting the constitutional amendment were expected, because this was not an initiative by the Government alone, all stakeholders in the country were involved. 
 
Resources remained the key problem in Malawi and the Government did what could be done with the available resources.
 
Violence against children with albinism was criminalized and the Government appealed to all who could help, to support those children with lotions and necessary support.  There were vigorous awareness campaigns on the situation of children with albinism among the general population, which were bearing fruit.
 
Last November, Parliament had passed a law on the right to information and children would be beneficiaries of the law as well.  The Human Rights Commission was tasked with making the information available.
 
The campaign on ending child marriage had been launched in 2014 and was still ongoing; it was coordinated through a national task-force and involved parents, teachers, and traditional and religious leaders.
 
The national plan to address violence against children was being implemented, and it focused on identification, referral and support to victims.  A five-year campaign on ending violence against children had been launched in December 2015, under the theme “protect and care – violence is not a solution”.
 
In terms of support to child victims of violence, the delegation explained that in addition to the 81 one-stop centres, there were also 300 community victim support units and 200 police victim support units, which had been established to ensure access to services to child survivors of violence throughout the country.
 
Follow-up Questions and Answers
 
OLGA KHAZOVA, Committee Expert and Co-Rapporteur for Malawi, asked the delegation to explain what had happened to girls from the 650,000 dissolved early marriages, where were they and what happened to children from those marriages.  What was the He for She Campaign against early marriage?
 
CLARENCE NELSON, Committee Expert and Rapporteur for Malawi, took note of the statistics and data on violence against children, and noted with concern the significant increase in cases of abuse, defilement and rape.

The delegation said that of the 650,000 dissolved early marriages, one third involved boys and two thirds girls.  Children were encouraged to go back to school, where councillors provided them with psychological support.  There were support mechanisms to support the return to school of girls from those marriages who had children. The He for She campaign had worked very well because the President of Malawi was one of the nine champions of the campaign at the global level, and he was committed to ending child marriage. 
 
With regard to the increase in data on violence against children, the delegation explained that this was largely due to increased and improved surveillance and monitoring, rather than an increase in the violence itself.  The Ministry for Children had a lawyer to assist victims of defilement in pursuing their cases before the law, but the caseload was rather large and more lawyers were needed.

Children with disabilities were assessed by a medical system and were then attached to the necessary services.  There were teachers who received specialist training on education of children with disabilities, and who were in schools and in communities to support children with disabilities.  More resources were needed to improve all necessary services for children with disabilities. 
 
One of the major factors contributing to the low prosecution rates for sexual abuse and violence against children was the lack of capacity in the judiciary.  Many people were still reluctant to report violence and abuse, and further, each reported case had to be investigated before the prosecution could take effect. 
 
All matters related to children in conflict with the law were taken up by the child justice courts.  All children giving testimony in courts did so in a separate room with the use of technology, which guaranteed the protection of their identity.
 
In the next round of follow-up questions, Committee Experts raised concerns about the difficulties in birth registration and the issuing of birth certificates, and asked about the age determination procedures in the context of child marriage and juvenile justice. 
 
Which were the criteria for the dissolution of the 650,000 child marriages in just two years?  What happened to children born in annulled marriages, what were their rights, particularly in terms of contact with the father?  Were those marriages annulled, or suspended until the partners reached the age of 18?
 
What were the reasons behind the low birth registration rate?
 
BENYAM DAWIT MEZMUR, Committee Chairperson, asked whether the data collection system would be harmonized with the amended constitutional definition of a child as a person under 18 years of age.
 
Responding, the delegation explained the procedure that everyone wishing to marry had to follow and said that those without a birth certificate could give an affidavit as to the date of birth, which had to be supported by a sworn witness statement usually by a mother or a father.  If false information was provided during the contracting of a marriage, then a marriage would be annulled.
 
The national registration law was a new law, which obliged parents to register the birth of their children.  The law was also seeking to register and issue identity cards to all those without a birth certificate.  Efforts were ongoing to issue electronic birth certificates and hand-written ones were being gradually supressed.
 
The welfare of a child born in a dissolved early marriage was the primary concern.  If the child was an infant under six months, the child would remain with the mother and her parents to ensure continued breastfeeding.  Older children would be cared for in early childhood centres while the mother was in school.  Both parents were encouraged to care for the child born in the marriage, but the focus was on encouraging girls to continue education.
 
Questions from the Experts
 
Committee Experts took up the issue of the family environment, and noted the existence of thousands of orphans in Malawi and the need for appropriate strategies to support them, and asked the delegation to explain what community care was, progenitor care, the types of centres caring for orphans and whether they were all legally registered.
 
What quality and performance standards were in place for different types of child care centres and how were they monitored?  How many children were in the centres, how many children with disabilities were in the care centres and did they receive the special attention they required? 
 
Was the deinstitutionalization policy in place and how was it being implemented?  What measures were being adopted to facilitate the social re-insertion and reintegration of children from care centres back into the society?
 
The Committee was very concerned about the reports of violence in care homes, and asked about specific support provided to adolescents caring for other children.
 
What was the status of the draft law on adoption?
 
The Committee was aware that steps were being taken to ensure that infants could be with their incarcerated mothers for the duration of breastfeeding, but children seemed to stay in prison with their mothers for several years.  What happened to children of incarcerated mothers who did not have any other family?
 
OLGA KHAZOVA, Committee Expert and Co-Rapporteur for Malawi, commended the Government efforts in addressing infant and child mortality rates.  What was being done to address the widespread malnutrition among children under the age of five, and to prevent the death of children due to preventable diseases and to increase vaccination rates.
 
Which measures were envisaged to reduce the rather high maternal mortality rates?
 
Malawi had one of the highest rates of adolescent pregnancies in the world – what was being done to address the problem, including through sexual and reproductive health education in schools.  Ms. Khazova took note of the very restrictive abortion law and asked what was in the bill on the reform of the law and when would it be adopted – it seemed that the new law would require a woman or a girl requiring an abortion of pregnancy resulting from rape to first report the rape to the police, and this was a course of concern for the Committee.
 
On education, the delegation was asked about measures taken to address hidden costs of education, and to improve the quality of education, including though teachers’ training.
 
CLARENCE NELSON, Committee Expert and Rapporteur for Malawi, asked about the outcomes and results of the national action plan to combat child labour which had ended in 2015, and whether the plan would be continued.  Many children worked in tobacco plantations – were there standards in place regulating the work of children, how were the plantations monitored and how were the offenders dealt with?
 
What were the outcomes of the recently completed action plan on children in street situations?
 
The prosecution rates of perpetrators of child trafficking and exploitation were rather low, and sanctions handed down were minimal – could the delegation comment?
 
The age of criminal responsibility was very low, 10 years of age.  What was being done to remedy this?  What was the situation of children who had received the death penalty for crimes committed when they were under the age of 18?
 
Responses by the Delegation
 
There were 1.8 million orphans in Malawi, and half were due to HIV/AIDS.  Children were taken to community-based centres to be cared for, which enabled guardians to be involved in other work.  Child victims of abuse were placed in safe places.  Foster homes were also part of the child care system in Malawi, and those families were registered with the Government.  Orphans and other vulnerable children who had nowhere else to stay were placed in children’s homes, which were registered, run according to standards and monitored.  Some 10,000 children were placed in children’s homes, including those brought to a centre once a day, for example children with disabilities.
 
There were 105 children’s homes; violence against children had been reported in six of them.  Steps had been taken to remedy the situation and investigate and prosecute the responsible persons.  Generally, the child care protection and justice act prevented any form of abuse of a child, including corporal punishment.  The Government monitored the implementation of this law closely.  Families looking after orphans were given various forms of support, including social cash transfer programmes, particularly in rural areas.  The programme covered the whole country and at the moment it included 180,000 households with a total of 790,000 individuals.  The programme would be further expanded to cover more than 300,000 households.
 
A child could remain with its incarcerated mother for the duration of breastfeeding, which could last up to two years.  If care for a child outside of prison was possible, a child would be taken away from the prison, otherwise, it would remain in prison with the mother.  School-aged children were transferred to a rehabilitation centre where they could attend school without hindrances.
 
Malawi recognized the high maternal mortality rates, and had adopted a Presidential safe motherhood programme, under which both parents-to-be were encouraged to be tested for HIV; if they were positive, the protocol to prevent the transmission from mother to child would be applied.  One of the strategies to address stunting among children was the distribution of high energy food.  All children born in hospitals were immunized, while rural clinics sent mobile teams out to vaccinate children born at home. 
 
Youth-friendly services could be accessed through health clinics, which provided education, information and access to contraceptives to youth.  Contraceptives were available to all those who required them; contraceptive and HIV testing services were integrated with other health services, enabling people to access them easily, and this had increased the number of users.  Malawi was working hard to prevent unwanted pregnancies among teens by providing information and easy access to contraceptives.  Victims of rape could contact one-stop centres for survivors of violence, where adequate treatments were available to avoid pregnancy and transmission of HIV/AIDS.
 
Studies indicated that about 40 per cent of children with disabilities did not attend school, mainly those in rural areas. 
 
There was a divergence of views in the society in Malawi concerning the decriminalization of abortion.  The Government had still not received the report from the Law Commission which had prepared a draft bill on the issue.  The age of criminal responsibility was 10 years, while criminal responsibility of children up to 14 years of age was valid only if it could be proven that the child was aware that the act committed was a crime.  At the moment, there was no intention to increase the age of criminal responsibility. 
 
The Ministry of Gender, Children and Disability Affairs had the overall responsibility for children’s affairs, and it also coordinated other ministries and other agencies working on issues related to children.  The anti-trafficking act was implemented in coordination with all relevant ministries, including home affairs, justice, and others.
 
The delegation explained that the Government was aware of the increase in the number of children living or working on the street, and that in collaboration with civil society, an enumeration survey had been carried out in 2014 and in 2015 in two major cities, which had found more than 4,000 children in the streets, including more than 400 homeless children.  The data was collected with the aim of improving policy response to the phenomenon, increasing the protection of children living in the street, and strengthening reintegration services.
 
Malawi had a social security policy in place, which englobed the rights of children, particularly during early childhood.  The disaster management plan had been completed, while disaster management was being incorporated in school curricula. 
 
Follow-up Questions and Answers

In their follow-up questions, Committee Experts commended Malawi for the significant leap in passing legislation on children with disabilities and expressed concern about the implementation of the laws.  What measures were in place to ensure the full inclusion of children with disabilities in primary schools, and also to ensure that children with albinism were protected from violence?
 
OLGA KHAZOVA, Committee Expert and Co-Rapporteur for Malawi, asked whether mental health services were available to children and adolescents, and also asked whether a straightforward prohibition of child marriage should be a part of the constitutional reform bill.
 
The delegation was also asked to inform how community-based services for children with disabilities were run and whether there were any programmes to ensure the early detection of disability.  What proportion of the State’s budget was allocated to health?  Why was the mortality rate due to malaria so high?  Was Malawi a beneficiary of the Global Fund?
 
BENYAM DAWIT MEZMUR, Committee Chairperson, commended the passing of a number of laws by Malawi, in particular the nationality act, and asked whether there was a conversation in the country to withdraw the many reservations entered during the ratification of the 1951 Refugee Convention.  The nationality act had provided for a child who was at risk of statelessness to obtain the nationality, but only through an application and not automatically – how many such applications had been made and how successful they were?
 
The delegation explained that the constitutional reform bill introduced the definition of a child as a person under the age of 18, while the marriage and divorce act allowed only marriage of persons over 18 years of age, which meant that those provisions complemented each other and worked into an effective prohibition of child marriage.
 
The HIV/AIDS management bill prohibited harmful traditional practices – the reason harmful traditional practices were in this bill was that some of the practices worsened the spread of the disease.  Malawi was in the process of reviewing the refugee act during which the reservations to the 1951 Convention would be reviewed and it was hoped that they would be lifted.  A comprehensive review of the citizenship act had just been completed and the matter would be coming to the Cabinet’s consideration by mid-June, and the new law was expected to pass shortly after; it would remove discriminatory provisions in relation to citizenship.
 
Turning to measures to prevent the spread of HIV/AIDS, the delegation said that the first port of call for victims of rape was one of the more than 300 community services, where integrated services – medical, police, psychological – were offered free of charge; the services also included emergency treatment to prevent unwanted pregnancy and the transmission of HIV/AIDS.  Children born to a HIV/AIDS positive parent would be tested after six months, and then again at one year and at two years.
 
The social protection policy had a school feeding programme, within which schools were encouraged to prepare food for children which was complemented with high-energy foods.  Children received one meal per day.
 
Experts asked, in another series of questions, for details about steps taken to prevent child labour and to reduce the number of deaths from malaria, the adoption of a next phase of the national health plan, and why the age of criminal responsibility was set at 10 years when the internationally accepted standard was 12.
 
Responding, the delegation said that there were two levels of criminal responsibility, and that at 14 years, a child could be criminally responsible only if he or she knew it was criminally responsibility.  Malawi would take home the concerns Experts expressed in this regard.  Steps to reduce malaria-related deaths included the distribution of insecticide-treated bed nets to pregnant and breastfeeding women and children under the age of five.  There was an ongoing collaboration with the Global Fund.
 
Interactive Dialogue on the Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

Questions from the Experts
 
HYND AYOUBI IDRISSI, Committee Expert and Rapporteur for the Optional Protocol on the sale of children, child prostitution and child pornography, welcomed the adoption of the anti-trafficking law and the national action plan in Malawi. 
 
The Committee was concerned about the lack of progress achieved in the establishing of the national data collection system covering all aspects of the Optional Protocol – what were the plans in this regard?  Did the national strategy on vulnerable children cover the sale of children, child prostitution and child pornography?
 
In terms of the effective implementation of the Optional Protocol, the delegation was asked about measures taken to ensure that relevant Government departments and agencies had sufficient resources.  What was being done to raise awareness about the Optional Protocol among the general public and include it in educational programmes of law enforcement agencies and agencies dealing with children?
 
Malawi had not explicitly criminalized practices covered by article 2 and 3 of the Optional Protocol, including the sale of children.  What was being done in this regard and what was being done to ensure that legal persons could be held liable for the crimes committed under the Optional Protocol?
 
CLARENCE NELSON, Committee Expert and Rapporteur for Malawi for the Optional Protocol on the involvement of children in armed conflict, said that the Optional Protocol on the involvement of children in armed conflict had not been adopted into the law as a whole, even if some of its aspects had been incorporated into the legislation.
 
The delegation was asked to inform about resources dedicated to Government departments and agencies in charge of the implementation of the Optional Protocol, about awareness raising on the Optional Protocol, and about the monitoring of compliance with the provisions of the Optional Protocol.
 
Mr. Nelson cautioned about the age determination procedure for individuals without a birth certificate, and urged Malawi to widen the sources testifying on the age of the candidate.
 
Were there any cases of recruitment of children by tribal chiefs into conflicts and disputes with other tribes, and if so, what was being done to protect children from recruitment?
 
What was the situation for extraterritorial jurisdiction and extradition for offences under the Optional Protocol? 
 
Which measures were in place to assist child victims of offences under the Optional Protocol?
 
Responses by the Delegation
 
Responding, the delegation confirmed that the Optional Protocols formed part of the law in the country, in line with the Constitution of Malawi.  Trafficking in persons, including children, was criminalized and punishable by life imprisonment.  The provisions of the Optional Protocol on the sale of children, child prostitution and child pornography were domesticated in several laws, including the child care and protection act, the criminal code, anti-trafficking act, and other laws. 
 
The Committee against Trafficking in Persons had been established and its first meeting had taken place in December 2016; it was an inter-sectoral body composed of several ministries concerned with children’s issues, and it also included the Ministry of Local Governments, as key anti-trafficking activities took place at the community level.
 
The anti-trafficking act and the provisions of the Optional Protocol were disseminated to the general public, and were also part of school curricula and law enforcement training programmes; other measures were being taken to raise awareness among the general public and traditional leaders as well.
 
The data collection tool used standardized indicators, while the national plan of action for vulnerable children included areas of the Optional Protocol to make sure that strategies were put in place to address the various aspects.  Forced marriages as a way to pay off debts were prohibited and offenders could receive up to 10 years imprisonment.
 
The delegation explained that the system of adopting the laws followed the British system and said that the Ministry of Justice and the Ministry of Gender would look into the best ways to incorporate the remaining provisions of the Optional Protocols in the national law.
 
On the age determination procedure, the Committee was informed that all persons had an obligation to state the truth in affidavits and that any infractions would be properly addressed by the law.
 
There had been no cases of recruitment of children by chiefs or traditional leaders to resolve their conflicts.  The recruitment of children was unlawful and the Government was taking steps to ensure that the law was respected.  The new firearms law was being currently prepared.
 
The extradition of offenders under the Optional Protocols was covered by section three of the trafficking in persons act, which also allowed the prosecution of Malawi citizens who committed the crimes abroad.  Mutual assistance arrangements with a number of States had been concluded, which assisted extradition processes. 
 
Malawi took note of the Experts’ comments on the age of criminal responsibility and would look into the issue of possible law reforms.
 
The recently adopted law on e-transactions and cyber-crime addressed the issue of pornography, including child pornography. 
 
The National Human Rights Commission had a directorate dealing with children’s issues, which had the mandate to protect and promote children’s rights, and this included raising awareness about the Optional Protocols.
 
The delegation explained that the current data collection process included data on child protection and gender-based violence, and said that other elements and types of data would be included once the review of the data collection process was completed.
 
Complaints by children could be received by the police, through the children’s corner, the national child-help line, and through social workers.  The National Human Rights Commission could also receive the complaints, and it was hoped that soon, the Commission’s offices would be available in all districts.  The information on the number of complaints filed was not known at the moment.  Children had access to the Commission which was also proactive in reaching out to the children; the access however was impeded by the fact that the Commission did not have offices throughout the country and the Government hoped it would soon have the resources to address this issue.
 
One hundred and fifty judicial officers had been trained on issues covered by the Optional Protocols and courts had already handled cases under the Optional Protocols.  The child care, protection and justice act had a mechanism in place to determine the age of children, including for applicants to the armed forces.
 
Concluding Remarks
 
CLARENCE NELSON, Committee Expert and Rapporteur for Malawi, thanked the delegation for the very fruitful dialogue which had provided the Committee with a better understanding of the situation in Malawi, which had many good laws but faced challenges in the implementation of those laws, including lack of resources and accessibility for the rural population.  The Committee was encouraged by the level of Malawi’s commitment to improve the lives of children, including through the implementation the Convention.
 
HYND AYOUBI IDRISSI, Committee Expert and Rapporteur for the Optional Protocol on the sale of children, child prostitution and child pornography, expressed confidence in Malawi’s commitment to continue to take strides forward in protecting and promoting the rights of the child.  Malawi should try and take better ownership of international instruments, including the Optional Protocol, which would bring about greater efforts in the domain of coordination, awareness raising and implementation.
 
SAMUEL TEMBENU, Minister of Justice and Constitutional Affairs of Malawi, thanked the Experts for the interactive dialogue which had helped Malawi to identify issues of concern to the Committee and to rethink a new approach to the matters which could be further improved.  Malawi had undertaken upon itself the obligation to implement the Convention and create a safe and healthy environment for the children of Malawi and so shape their future.
 
BENYAM DAWIT MEZMUR, Committee Chairperson, said that the year 2017 would be an exciting milestone for children in Malawi, with the constitutional amendments and other initiatives, and encouraged Malawi to ratify the third Optional Protocol on a communication procedure.  The Committee was well aware of the competing interests in the allocation of resources and urged Malawi to ensure that children received their fair share.

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