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TITLE: MALAWI HUMAN RIGHTS PRACTICES, 1994
AUTHOR: U.S. DEPARTMENT OF STATE
DATE: FEBRUARY 1995









                             MALAWI


In an end to one-man, one-party rule in Malawi, on May 17, 
Bakili Muluzi won the Presidency in Malawi's first democratic, 
multiparty elections since independence.  His party, the United 
Democratic Front (UDF), gained an 84-seat plurality in the 
177-member Parliament (see Section 3).  The Malawi Congress 
Party (MCP), the former sole legal party, and the former Life 
President, Dr. H. Kamuzu Banda, made strong showings, with the 
MCP winning 55 seats.  The Constitution, passed just hours 
before the elections, provides for a strong presidency, and an 
independent legislature and judiciary.  While the multiparty 
National Consultative Council and National Executive Committee 
successfully guided the political transition during the last 
months of the Banda government, the election results reflected 
the regional strengths of each of the three major parties, UDF 
in the south, MCP in the center, and the Alliance for Democracy 
(AFORD) in the north.

The National Police, headed by the Inspector-General of Police 
under the Ministry of Home Affairs, are responsible for 
internal security.  Although the police occasionally called on 
the army for back-up support in particularly difficult 
situations, the military did not play a significantly active 
role in the internal security of the country.  In early 1994, 
the army completed the disarmament of the Malawi Young Pioneers 
(MYP), which had been responsible for many human rights abuses 
under the Banda government.  Despite the political 
transformation, there continued to be credible reports that 
police abused detainees and used excessive force in handling 
criminals.  The police also continued to detain persons without 
charge for longer than the law allows.  The new 
Inspector-General of Police, appointed following the elections 
in May, began to address some of the endemic problems by 
agreeing to meet with representatives of donor governments and 
human rights organizations and requesting assistance for the 
improvement of the organization, transportation and training of 
the police force.

Small, densely populated, and landlocked, Malawi has a 
predominantly agricultural economy.  Over 85 percent of the 
population derives its income from agriculture.  The main cash 
crops are tobacco--Malawi's most important foreign exchange 
earner--tea, coffee, and sugar.  In 1994 the economy was rocked 
by severe shortages of foreign exchange, rapid depreciation of 
the currency, high inflation, and drought.

Malawi's human rights performance improved significantly in 
1994, most notably through internationally recognized free and 
fair elections held in May and the introduction of a new 
Constitution with strong human rights provisions.  During the 
year, citizens exercised their rights of speech, press, 
assembly, and political association generally without 
government interference, although there were occasional 
accusations of government attempts to restrict the media.

Despite many improvements, however, there continued to be 
serious human rights abuses.  In particular, the police 
continued to abuse and use excessive force in handling criminal 
suspects.  Lengthy pretrial detention and the uncertain 
judicial system called into question the ability of the accused 
to receive timely justice.  In response to the rise in crime, 
angry mobs carried out summary justice.  Political leaders 
faced a major challenge in addressing the serious human rights 
abuses committed during the long Banda era, in part because 
many government, UDF, and MCP members have had some past ties 
to the Banda regime.  While the President has not yet 
established the constitutionally mandated human rights 
commission, he appointed a commission with a mandate limited to 
investigating the alleged political killings of four prominent 
politicians in 1983.  In early 1995, the Government placed 
ex-president Banda under house arrest and planned to try him 
and others for these deaths.  Women continued to experience 
societal discrimination, and domestic violence against women 
remained a problem.

RESPECT FOR HUMAN RIGHTS

Section 1  Respect for the Integrity of the Person, Including 
           Freedom from:

     a.  Political and Other Extrajudicial Killing

There were no reports of political or other extrajudicial 
killings.  However, frustrated by increased crime and 
inadequate law enforcement, civilians sometimes resorted to 
vigilante justice in beating, stoning, hacking, and even 
burning suspected criminals to death.  While mob justice is 
recognized as a crime, the authorities did not attempt to 
prosecute any alleged perpetrators.

After the elections, the Government appointed a commission to 
investigate the 1983 deaths of four prominent political 
figures, three government ministers and a parliamentarian, who 
are widely believed to have been victims of political 
killings.  The previous government ignored calls for an 
investigation, claiming the four had died in an auto accident.  
In early 1995, the Government placed ex-president Banda under 
house arrest and arrested several others in connection with the 
killings.  A trial is expected in 1995.

     b.  Disappearance

There were no reports of disappearances.

     c.  Torture and Other Cruel, Inhuman, or Degrading 
         Treatment or Punishment

Credible reports indicate that the police continued to beat 
suspected criminals during initial detention and interrogation 
at police stations.  These same reports, however, stated that 
the number and severity of beatings diminished dramatically 
after the first months of 1994.

The new Government granted the International Committee of the 
Red Cross (ICRC) access to police detention centers, but local 
police authorities were sometimes reluctant to cooperate.  As a 
result the ICRC had difficulty gaining access to some police 
facilities.  The new Inspector General participated in an ICRC 
training seminar on human rights for senior police officials.

Conditions in prisons improved in 1993 and 1994, but 
overcrowding, inadequate nutrition, and substandard sanitation 
and health facilities remained serious problems.  Women are not 
kept in separate facilities, but are separated within the 
prison compound.  Rape of female prisoners is not a problem.  
As a result of the Government's increased awareness and 
response to these problems and continued ICRC visits and 
training sessions, the ICRC decided to close its office in 
Blantyre at the end of the year and to continue its follow-up 
activities from its regional delegation in Harare, Zimbabwe.

     d.  Arbitrary Arrest, Detention, or Exile

The law permits the accused to challenge the legality of the 
detention, to have access to legal counsel, and to be charged 
or released within 48 hours.  In all cases where the court 
determines that a defendant cannot afford to supply his own 
counsel, legal services are provided by the Government.  In 
practice, the authorities held many detainees for weeks without 
charge, ostensibly due to the inability of police to complete 
investigations promptly, and few persons were able to afford 
legal counsel.  There are not enough lawyers or private 
resources to meet the needs of indigent detainees.  Pretrial 
detainees represent about one-third of the prison population, 
and in some cases persons have been detained for years.

In a few cases during the campaign period, police arbitrarily 
detained members of opposition parties for "questioning."  
These detainees were held for a few hours and released.

The judicial system continued to be handicapped by serious 
weaknesses including poor recordkeeping, personnel shortages, 
and most recently the transfer of several hundred murder cases 
from the traditional courts to the High Court.  In the past, 
traditional courts were the keystone of the Banda legal system, 
and the cases were transferred to ensure prisoners have the 
right to a fair trial in accordance with international 
standards.  However, only a few of the transferred murder cases 
had actually gone to trial by year's end.

There were no reports of political detainees in 1994.  (See 
Section 1.e.).

The Government did not use exile as a means of political 
control.

     e.  Denial of Fair Public Trial

The Constitution provides for a High Court, a Supreme Court of 
Appeal, and subordinate magistrate courts and allows for 
traditional courts, which continue to operate at the local 
level, ruling on minor civil and customary law cases.  With the 
reorganization, however, these traditional courts are now 
subordinate to the regular court system.

Under the Constitution, the judiciary is independent from other 
branches of government.  The Chief Justice is appointed by the 
President and confirmed by the National Assembly.  Other 
justices are appointed by the President following a 
recommendation by the Judicial Service Commission.  All 
justices are appointed until the age of 65 and may only be 
removed for reasons of incompetence or misbehavior, as 
determined by a majority in Parliament and the President.

By law defendants have the right to a public trial but not to a 
trial by jury.  However, in hearing the first murder cases 
transferred from the traditional courts to the High Court, the 
High Court used juries of seven persons from the defendant's 
home district (see Section 1.d.).  Defendants have the right to 
an attorney, access to evidence and witnesses, and the right of 
appeal.  There were no reports that the authorities 
deliberately denied these rights, but the many problems 
confronting the judical system and inadequate state funding 
meant that, in practice, many persons were denied the right to 
an expeditious trial.

Juvenile offenders have special rights under the Constitution, 
including the right to be separated in custody from adults, to 
be treated in a manner which accounts for age and the 
possibility of rehabilitation, and exemption from the 
punishment of life imprisonment without the possibility of 
release.

By the end of 1994, there were no known political prisoners in 
Malawi.  Nevertheless, in his May 21 inaugural address 
President Muluzi ordered the release of all remaining political 
prisoners (probably a few at most).  The only person widely 
known to have been released was a man who had been charged with 
attempting to incite the armed forces to overthrow the 
Government.  The President also commuted all death sentences to 
life in prison.

     f.  Arbitrary Interference with Privacy, Family, Home, or 
         Correspondence

Under the law, search warrants are required, and there were no 
reported incidents of illegal search of homes or businesses.  
However, postal authorities occasionally opened and inspected 
private correspondence, seemingly at random.

Section 2  Respect for Civil Liberties, Including:

     a.  Freedom of Speech and Press

The Constitution provides for freedom of speech and press, and 
citizens widely exercised these rights in 1994.

During the year, more than 20 newspapers published a broad 
spectrum of political and ideological views.  The Government 
generally tolerated press criticism.  However, in one highly 
publicized incident following the May elections, an opposition 
paper published a 25-year-old photograph of the new President 
which depicted him in a prison uniform.  The photo was 
supposedly taken following his arrest and conviction for 
stealing six British pounds while serving as a government clerk 
in 1968.  The Minister of Justice/Attorney General attempted to 
stop the newspaper from publishing, and the police harassed its 
editor and detained him for questioning.  Following an 
immediate public outcry, the President reversed the Attorney 
General's decision, and the paper continued publication.

The only radio station is the government-owned Malawi 
Broadcasting Corporation (MBC), which is the most important 
medium for reaching the public.  Both the MCP, when in power, 
and the new UDF-led Government gave priority in MBC  
programming to their policies.  Most recently, the MCP charged 
the Minister of Information and Broadcasting with directing the 
MBC not to broadcast an MCP statement.

Many of the old repressive laws which were of concern to 
international human rights organizations, including laws 
affecting freedom of the press have been specifically addressed 
in the new Constitution and are now considered 
"unconstitutional."  To date, in cases where an old law 
conflicts with the Constitution, and has reached a court of law 
for a decision, the Constitution has prevailed, effectively 
nullifying the repressive laws that are still on the books.  
During the year the Government began the time-consuming process 
of revising the entire legal code.

There were no restrictions on academic freedom.

     b.  Freedom of Peaceful Assembly and Association

The Constitution provides for freedom of assembly and 
association.  The authorities routinely granted official 
permits, which are required by law for large gatherings and 
meetings.

The new Government continued the policy of requiring 
organizations, including political parties, to register with 
the Registrar General under the Ministry of Justice, but there 
were no reports of any group being denied registration or 
having its registration delayed.  Eight political parties 
participated in the elections.

     c.  Freedom of Religion

The Constitution provides for freedom of religion, and people 
exercised this right freely.  However, the law requires that 
religious groups register with the Government.

     d.  Freedom of Movement Within the Country, Foreign 
         Travel, Emigration, and Repatriation

People have the right of movement and residence within the 
borders, and the right to leave and return.  In practice, 
however, some Asians have been denied this right (see Section 
5).

During the campaign period, police occasionally delayed the 
travel of members of the then political opposition at 
checkpoints between regional boundaries, but it was not clear 
whether such actions were taken on individual initiative or at 
government direction.  Following the elections, the new 
Government reintroduced police roadblocks, citing the 
increasing crime rate.  There were no reports of political 
harassment at the newly established checkpoints, but there have 
been allegations of harassment for the purpose of obtaining 
bribes, particularly at border-crossing points.

Malawi continued to host thousands of Mozambican refugees.  At 
the beginning of 1994, 700,000 Mozambicans remained in Malawi, 
down from a peak in excess of 1 million.  At the end of the 
year, only 100,000 remained.  During the year, the Government 
cooperated with the United Nations High Commissioner for 
Refugees (UNHCR) and other relief organizations to assist their 
return to Mozambique and to meet a number of new arrivals 
(approximately 1,500 to 2,000), mostly from nonneighboring 
countries such as Somalia and Zaire.  The Government initially 
hesitated to take on the responsibility of a new refugee 
population, in part due to popular resentment that UNHCR 
support allowed refugees a lifestyle unattainable to many 
Malawians.  Subsequently, the Government initiated plans to 
relocate the new refugees to a camp, converting a former prison 
for this purpose.  There were no reports of forced expulsion of 
those having a valid claim to refugee status.

Section 3  Respect for Political Rights:  The Right of Citizens 
           to Change Their Government

Citizens exercised this right on May 17 when over 80 percent of 
the population freely and peacefully voted--for the first time 
in 30 years--for a new President and Members of Parliament in 
multiparty elections.  Although there were minor irregularities 
during the elections, principally perpetrated by the 
then-ruling MCP, international observers declared the elections 
substantially free and fair.  There is universal suffrage for 
citizens 18 years of age and over.

President Muluzi and Vice President Justin Malewizi (both from 
the United Democratic Front-UDF), and a 26-member Cabinet (19 
ministers from the UDF and 7 from three other parties), 
exercised executive authority.  Parliament consists of 177 
members (85 from the UDF, 56 from the MCP, and 36 from the 
Alliance for Democracy-AFORD).  In September the President 
designated Chakufwa Chihana of AFORD Second Vice President, and 
the Parliament amended the Constitution in October to authorize 
this position.  In December Chihana was sworn in.  A group of 
Malawians questioned the constitutionality of the designation 
of a second vice president prior to the amendment of the 
Constitution to allow for such an office, and sued the 
President and the Speaker of Parliament for violating the 
Constitution.  The court did not rule on the case and the issue 
remained unresolved at year's end.

The key issue facing the new Government as it attempts to 
consolidate democracy is the strengthening of the economy; the 
Government's main focus is poverty alleviation.  It is also 
attempting to address past human rights abuses, poor education, 
and the challenges inherent in operating a government which 
includes a political opposition.  The move to appoint a second 
vice president was, in part, an attempt to include a portion of 
the opposition in the executive and develop a working majority 
in the Parliament.

There are no laws that restrict the participation of women or 
minorities in the political process.  Social discrimination, 
however, does limit women's participation.  While most women 
voted, few hold public office, and in the May elections only 10 
women were elected to the National Assembly.

Section 4  Governmental Attitude Regarding International and 
           Nongovernmental Investigation of Alleged Violations 
           of Human Rights

The Government allowed local and international human rights 
groups to monitor and investigate its activities and did not 
take any action against these organizations.  Some 
organizations, such as the Malawi Law Society's Legal Resources 
Center; the Foundation of Integrity of Creation, Justice and 
Peace; the Christian Council of Malawi; Vera Chirwa's "Carer"; 
and the Society for the Advancement of Women, began recording 
evidence of past abuses, monitored the new Government, and 
issued statements whenever they felt the new Government 
violated human rights or the Constitution.

The new Constitution provides for a national compensation 
tribunal, which will entertain claims of criminal and civil 
liability against the former government, and a human rights 
commission which will protect, and investigate violations 
against, the rights provided for in the Constitution.  These 
bodies were not yet in place and functioning at the end of 
1994.  The Government had, however, invited applications for 
the position of ombudsman, who will investigate claims of 
injustice.

The Government discussed human rights problems with 
international governmental and nongovernmental organizations, 
and permitted visits by United Nations and other international 
organizations, including the ICRC.  For the most part the 
Government responded positively to recommendations and 
attempted to remedy human rights problems as they came to its 
attention.

Section 5  Discrimination Based on Race, Sex, Religion, 
           Disability, Language, or Social Status

The Constitution specifically provides for equal rights for 
women; forbids discrimination based on language, culture, or 
religion; and generally guarantees every person the right to 
equality and recognition before the law.

     Women

Under the new Constitution, women have the right to full and 
equal protection by law and may not be discriminated against on 
the basis of their gender or marital status.  In practice, 
however, women continued to experience discrimination and did 
not have opportunities equal to those available to men.  
Historically, women, especially in rural areas, have been 
unable to complete even a primary education and are therefore 
at a serious disadvantage in the job market.  Women often do 
not have equal access to legal and financial assistance and are 
often the victims of discriminatory inheritance practices in 
which the majority of the estate goes to the deceased husband's 
family.  They are also often at a disadvantage in marriage, 
family, and property rights.

The National Commission on Women, an organization overseen by 
the Ministry of Women and Children Affairs, operated without 
official funding, and its impact was limited to disseminating 
information on women's rights and working with other government 
ministries to increase awareness of women's rights.  More 
important in addressing women's issues were local 
nongovernmental organizations, such as the National Association 
of Business Women, which sponsored income-generating schemes 
for small groups of women in rural and urban areas.

Violence against women is not believed to be a serious 
problem.  However, spousal abuse, especially wife beating, does 
occur.  Domestic violence is not discussed openly by women, 
reportedly even among themselves, and there are no confidential 
shelters or facilities for treatment of women who suffer 
physical or sexual abuse.  Police do not normally intervene in 
domestic disputes, and few cases of violence against women 
actually reach the courts.  Occasionally the press reported 
instances of sexual abuse and harassment of female students by 
their male teachers, who, if caught, faced dismissal.

     Children

Although the Constitution provides for equal treatment for 
children under the law, the Government, dedicated few resources 
to children's health and welfare.  However, it did institute a 
system of free primary education for all children, beginning in 
October.  A few charitable organizations attempted to reduce 
the number of child beggars in urban areas and find alternative 
care for them.

A few small ethnic groups practice female genital mutilation 
(FGM), which has been condemned by international health experts 
as damaging to both physical and mental health.  However, FGM 
is neither common nor generally accepted by the society as a 
whole.

     National/Racial/Ethnic Minorities

Most Malawians of African heritage are members of indigenous 
tribes and are not discriminated against by the Government or 
society.  However, there is discrimination against Asians.  In 
previous years, Asian residents and citizens were prohibited 
from living and working in specified areas.  In early 1994, 
these restrictions were lifted from citizens of Asian 
background but remained in place for the majority of resident 
Asians who are not citizens.  Following the elections and the 
ratification of the new Constitution, these restrictions became 
unconstitutional, but the Business Licensing Act, which was 
used in the past to deny Asians the opportunity to establish 
businesses in the rural areas, remained on the books.  Few 
Asians actually tested the easing of these restrictions in 1994.

Following the elections, the Government started restricting the 
previously automatic renewal of temporary employment permits 
for expatriates, particularly businessmen, in the hope that 
Malawians would be hired in their place.  Other affected 
expatriates included teachers, health workers, researchers, and 
missionaries.  While this was consistent with Malawian law, the 
new and unexpected policy of strict enforcement, and the focus 
on businessmen specifically, caused concern and sometimes 
hardship to many expatriates who had established themselves in 
Malawi.

     People with Disabilities

The Government has not mandated accessibility to buildings and 
services for the disabled, but one of the national goals listed 
in the new Constitution is to support the disabled through 
greater access to public places, fair opportunities in 
employment, and full participation in all spheres of society.  
There are special schools and training centers which assist 
individuals with disabilities and several self-supporting 
businesses, run by and for the disabled.

Section 6  Worker Rights

     a.  The Right of Association

Because most households derive their income from the 
agricultural sector, only a small percentage of the work force 
earns wages in the formal sector.  Approximately 473,000 
persons, or 14 percent of the work force, earn formal wages.  
As of April, government data showed there were 63,000 
dues-paying union members, 39 percent of whom were teachers.  
At that time, the majority of paid-up union members were in the 
private sector.

Workers have the legal right to form and join trade unions, but 
unions must register with the Ministry of Labor.  For 
government workers, a union's membership must consist solely of 
government employees.  In 1993 civil servants organized 
themselves into the Civil Service Joint Consultative Committee.

Unions may freely form or join federations.  Until the new era, 
all unions were required to affiliate with the Trade Union 
Congress of Malawi (TUCM), which until late 1993 was closely 
affiliated with the former ruling party and highly 
circumscribed by the Government.  In late May, when the 
current, democratically elected government took power, unions 
became independent of the Government and of political parties.  
No new federations outside the TUCM had been formed by year end.

Under the Constitution, workers have the right to strike.  
There are no legal restrictions on this right other than those 
listed for "essential services" as determined by the Minister 
of Labor.  The law requires that labor disputes in "essential 
services" be reported to the Minister of Labor in writing, who 
then attempts to negotiate a settlement.  He may refer the case 
to a tribunal within 28 days of receiving the dispute report if 
it is not possible to reconcile the parties.  Only if a trade 
dispute has gone through this process, but not been resolved or 
referred to a tribunal, may workers in "essential services" go 
on strike.

There were a number of strikes during the year.  Most strike 
activities were peaceful and legal.  However, in early October, 
junior-level civil servants went on strike in pursuit of higher 
wages and benefits and blocked roads and stoned moving 
government vehicles.  Although the Government had met with the 
Civil Service Joint Consultative Committee from September until 
the strike, junior-level employees felt the Committee did not 
represent their interests.  The strike was finally settled 
through negotiations with a small delegation chosen by the 
strikers and resulted in a modest wage increase.  There are no 
laws or regulations which prohibit retribution against strikers 
and their leaders.

Unions may affiliate with and participate in international 
bodies, but require government permission to do so.  The TUCM 
is a member of the International Confederation of Free Trade 
Unions, the Organization of African Trade Union Unity, and the 
Southern African Trade Union Coordination Council (SATUCC).  In 
January SATUCC reopened its offices in Malawi (which were 
closed by the Banda government in 1992).

     b.  The Right to Organize and Bargain Collectively

Collective bargaining is freely practiced but is not 
specifically protected by law.  In practical terms, the 
Government sets wages in the state-owned industries, and 
employers do so in private businesses.  The abundance of 
unskilled laborers relative to employment opportunities gives 
labor only a limited voice in wage and contract negotiations.  
By contrast, skilled workers--because of their scarcity--enjoy 
higher salaries and have had some success when negotiating 
employment terms, either on an individual basis or through 
collective means.

The law prohibits antiunion discrimination by employers, but 
there is no legal requirement that employers reinstate workers 
fired for union activities.  Most individual labor 
disputes--usually in the form of a worker claiming unfair 
dismissal--are initially referred to the Ministry of Labor for 
resolution.  The Ministry typically encourages a settlement 
between the parties; it does not actually adjudicate the merits 
of the claim.  Tribunals apply in all disputes.

There are no export processing zones.

     c.  Prohibition of Forced or Compulsory Labor

The new Constitution prohibits forced labor, and such labor is 
not practiced except by prison inmates.

     d.  Minimum Age for Employment of Children

The new Constitution defines children as those under the age of 
16 (replacing the law which defined children as persons under 
the age of 12).  It prohibits the employment of children in 
work that is hazardous or harmful or interferes with their 
education.  However, there is no law making education 
compulsory.  The law also prohibits children from working at 
night or in "industrial undertakings."  Enforcement by police 
and labor inspectors in the Ministry of Labor is not effective.

In the large agricultural sector, young children work on family 
farms and on smaller estates, often in the two major export 
industries--tobacco and tea.  Children are not commonly 
employed in industrial jobs.

     e.  Acceptable Conditions of Work

Malawi has two legislated minimum wage rates:  one for cities, 
and one for the rest of the country.  Wage rates were last 
increased in July.  The minimum in the cities of Blantyre, 
Lilongwe, Mzuzu, and the municipality of Zomba is $0.23 (mk 
3.50) per day; in other areas it is $0.20 (mk 3.00) per day.  
These wage levels do not provide a worker and family with a 
decent standard of living.  However, wage earners tend to 
supplement their incomes through farming activities carried out 
through the extended family network.  The prescribed minimum 
wages are largely irrelevant for the great majority of citizens 
who earn their livelihood outside the formal wage sector.

Wages in Malawi's formal sector are primarily derived from the 
prescribed minimum wages and by comparison to civil service 
wages.  Industrial employees receive the highest wages, with 
most private commercial firms setting their wages higher than 
those for comparable government employees.  Agricultural 
workers tend to receive at most the legal minimum wage, with 
some additional benefits such as access to basic medical 
treatment and food.  While the Ministry of Labor is responsible 
for enforcing the minimum wage levels, it does not do so 
effectively.

There is no legislated standard workweek in Malawi, but most 
companies have a maximum workweek of 48 hours with 1 day of 
rest.  However, some wage laborers work 7 days per week.  The 
Workers' Compensation Act includes extensive occupational 
health and safety standards.  Enforcement of these standards by 
Ministry of Labor inspectors is erratic, and workers--
particularly in industrial jobs--often work without basic 
safety clothing and equipment.  According to the Ministry of 
Labor, workers do have the right to remove themselves from 
dangerous work situations without jeopardy to continued 
employment.(###)



[end of document]

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