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Title: Malawi Human Rights Practices, 1995
Author: U.S. Department of State
Date: March 1996
MALAWI
In May 1994, the Republic of Malawi held its first democratic,
multiparty elections since independence. Bakili Muluzi was elected
President, and a coalition between the United Democratic Front (UDF) and
the Alliance for Democracy (AFORD) gave him the support of 122 of the
177 seats in the National Assembly. The Malawi Congress Party (MCP),
formerly the sole legal party, is in opposition with 55 seats. In May
the National Assembly ratified a new Constitution. The judiciary is
generally independent, but its reputation was damaged by government
interference early in the trial of former president H. Kamuzu Banda and
five other MCP leaders for the murders of three cabinet members and a
member of parliament in 1984. On December 23, a jury found Banda and
his co-defendants not guilty.
The National Police, headed by the Inspector General of Police under the
Ministry of Home Affairs, is responsible for internal security.
Although the army is apolitical, the police occasionally called on the
army for support. While violence and common crime have become frequent,
there was no indication of organized activity in Malawi or abroad by
remnants of the Malawi Young Pioneers (MYP), formerly the MCP's
paramilitary wing. Despite notable improvements, there continued to be
credible allegations of human rights abuses by the police.
Small, densely populated, and landlocked, Malawi's economy is
predominately agricultural. Over 85 percent of the population derives
its income from agriculture. Tobacco remains the primary foreign
exchange earner; other cash crops include tea, coffee, and sugar.
Foreign aid remains a critical source of income. Breaking with
traditional state marketing boards that controlled prices, the
Government relaxed its control of the economy and extended market
pricing to major agricultural goods. The economy suffered from high
inflation, a shortage of foreign exchange, and drought. Nevertheless,
it was expected to grow by 9.9 percent in real terms after a 12.4
percent decline in 1994. Per capita income is estimated at less than
$100. Wealth remains concentrated in the hands of a small elite, many
of whom remain aloof from national politics.
The Government generally respected the human rights of its citizens, but
serious problems remained. The police continued to abuse detainees and
use excessive force in handling criminal suspects. In September the
Government appointed a new Inspector General of Police, the second in 2
years, to lead a major police reform. Prison conditions remained poor.
Lengthy pretrial detention, the inefficient and understaffed judicial
system, and the diversion of resources to the Banda trial called into
question the ability of defendants to receive a timely and, in some
cases, a fair trial. High levels of crime have prompted angry mobs to
execute alleged criminals summarily. The Government remained in control
of the broadcast content of the nation's radio stations, but allowed the
print media to report freely. The Human Rights Commission mandated by
the Constitution to explore human rights violations under ex-president
Banda has yet to be named. Women continued to experience severe
societal discrimination, and violence against women and children
remained a problem.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom
from:
a. Political and Other Extrajudicial Killings
Trials of former life president H. Kamuzu Banda and 5 associates on
charges related to the extrajudicial killings of three cabinet members
and a member of parliament during the Banda era began in July. In
December Banda and the 5 other MCP leaders were acquitted (see Section
1.e.).
Frustrated by inadequate law enforcement and rising crime, angry mobs
sometimes resorted to vigilante justice in beating, stoning, or burning
suspected criminals to death. The Government made no discernible effort
to punish individuals who carried out these abuses.
There were isolated reports of deaths of detainees while in, or shortly
after release from, police custody. The most publicized occurred in
April when the alleged killer of General Manken Chigawa, the Army
Commander, allegedly jumped to his death from the back of a moving
police vehicle.
b. Disappearance
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment
The Inspectorate of Prisons, an investigative body mandated by the
Constitution, confirmed that the police continued to physically abuse
detainees. While higher ranking officials demonstrated familiarity with
new standards for the humane treatment of prisoners, their subordinates
commonly employed unacceptable techniques. In an attempt to promote
professionalism in the police, a new Inspector General of Police was
named in September, the second in 2 years. The Government also sought
community involvement in its comprehensive reform of the police.
Prison conditions remained poor. Overcrowding, inadequate nutrition,
and substandard sanitation and health facilities remained serious
problems. While not kept in separate facilities, women are segregated
within the prison compound and tended by female warders. The
Inspectorate of Prisons and local organizations monitor police behavior
and prison conditions without government interference.
d. Arbitrary Arrest, Detention, or Exile
The law permits the accused to challenge the legality of detention, to
have access to legal counsel, and to be released or informed of charges
by a court of law within 48 hours. In 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 because of police inability to
complete investigations promptly. With few persons able to afford legal
counsel, the country's four public defenders were not sufficient to meet
the needs of indigent detainees. October statistics from Malawi's four
largest prisons suggested that approximately 46 percent of prisoners are
detainees awaiting trial.
Exile is not used as a means of political control.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary and the
Government respects this provision in practice. The Constitution
provides for a High Court, a Supreme Court of Appeal, and subordinate
magistrate courts. The judges and caseloads of the traditional court
system were transferred to the magistrate courts during the first half
of the year. The transfer further increased the already sizable backlog
in the criminal docket.
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 be removed only 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. In dealing with murder cases, the High Court nevertheless used
juries of seven persons from the defendant's home district. Defendants
are also entitled to an attorney, the right to adduce and challenge
evidence and witnesses, and the right of appeal. However, the
judiciary's budgetary and administrative problems effectively denied
expeditious trials for many defendants.
The judicial system is also handicapped by serious weaknesses including
poor recordkeeping, shortage of trained personnel, and a heavy caseload.
In addition, the Banda trial absorbed nearly the entire budget set aside
for homicide trials. The backlog of homicide cases numbered
approximately 750, half of which were more than 2 years old. The High
Court's decisions to permit ex-president Banda to be tried in absentia,
and initially to deny defense attorneys access to prosecution evidence
in MCP leader John Tembo's trial for conspiracy to murder Malawi's
Catholic bishops, called into question the right to due process in these
cases. In particular, in the early stages of the trial against ex-
president Banda, Tembo, and others for the murders of four associates in
1984, government ministers openly attempted to influence court
proceedings. Following public criticism, the Government retreated, and,
on December 23, the six defendants were acquitted in a jury trial.
Many of the old repressive laws, including laws affecting freedom of the
press, were superseded by the new Constitution. The High Court also
overturned old laws which were in conflict with the Constitution. The
Government named the head of the constitutionally mandated Law
Commission to oversee efforts to remove or revise outdated law, but the
Commission was not operational at year's end.
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 for rehabilitation,
and exemption from the punishment of life imprisonment without the
possibility of release.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or
Correspondence
Government authorities generally respected the constitutional right to
privacy regarding person, family, home, and private communications.
However, army and police forces, in carrying out sweeps for illegal
weapons, did not obtain search warrants as required by law. Postal
authorities apparently ceased their past practice of opening and
inspecting private correspondence.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedoms of speech and press, and the
Government generally respected these rights in practice. The Government
also generally tolerated the broad spectrum of political and ideological
opinion presented in the country's two dozen papers. However, media
representatives complained about government secrecy and periodic oral
threats against members of the press by government officials. There
also were complaints that the Government unfairly subsidized certain
newspapers through advertising revenues.
Malawi has two radio stations. A small private station broadcasts only
religious programming and is not permitted to broadcast news. State-
owned Malawi Broadcasting Corporation (MBC), however, is the most
important medium for reaching the public. MBC programming was dominated
by reporting of the activities of senior government figures and official
government positions. Parties and groups opposed to the Government
largely were denied access to the broadcast media. The Government also
denied applications to establish new stations, ostensibly for lack of
financing.
There were no restrictions on academic freedom.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of assembly and association, and
the Government respects these rights in practice. Authorities routinely
granted official permits, which are required by law for large meetings.
The Government requires organizations, including political parties, to
register with the Registrar General in the Ministry of Justice. Despite
frequent lengthy delays, there were no reports of groups being denied
registration.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government
respects this right in practice. Religious groups must register with
the Government. One previously banned denomination, Jehovah's
Witnesses, held a convention in Malawi in 1995.
d. Freedom of Movement Within the Country, Foreign Travel,
Emigration, and Repatriation
Citizens have freedom of movement and residence within the country, and
the right to leave and return. Although in 1994 the Government lifted
restrictions governing where noncitizens could reside and work, in
general Asians and expatriates remained hesitant to test these new
rights or to return to areas from which they had been displaced.
Malawi ceased to host refugees in large numbers when the last remaining
Mozambican refugees were repatriated in June. There was little conflict
or resentment during the repatriation process and the Government
cooperated with the U.N. High Commissioner for Refugees (UNHCR)
throughout the year. The remaining refugee population consists of
approximately 900 "urban refugees" from Somalia, Zaire, Rwanda, and
Burundi. Responding to local resentment over the presence of these
refugees, the Government decided to establish a single refugee center
with the support of UNHCR funding. In February these urban refugees
rioted when the Government phased out cash payments and required
refugees to live at its designated refugee center.
Asylum applicants are granted hearings to make their case for refugee
status. While there were no reports of forced expulsion of those having
a valid claim to refugee status, the Government has become increasingly
wary of those who travel long distances to seek asylum in Malawi.
Section 3 Respect for Political Rights: The Right of Citizens to
Change Their Government
Citizens are generally able to exercise this constitutional right.
Malawi has universal suffrage for citizens 18 years of age and older.
There were allegations of vote-buying, intimidation, and the misuse of
government assets during by-elections, which were consistent with common
practices under the Banda regime. In one case where the charges were
sustantiated, the Electoral Commission struck down the election result
that had favored the ruling coalition.
President Muluzi (UDF), Vice-President Justin Malewezi (UDF), Second
Vice-President Chakufwa Chihana (AFORD), and a 27-member Cabinet
exercise executive authority. A legal challenge to the creation of the
office of Second Vice-President remained under judicial consideration
throughout 1995. While the executive and the legislature were elected
in free, democratic elections, the executive in fact exerted
considerable influence over the legislature. In August AFORD and UDF
agreed not to contest seats held by the other. Local elections have
been postponed due to a lack of funds, effectively preventing the
citizenry from selecting new local leadership. However, the Minister of
Local Affairs reaffirmed the Government's commitment to the ongoing
reorganization of local government structures. The Government generally
does not interfere with the operation of opposition political parties.
There are no laws that restrict the participation of women or minorities
in the political process. In practice, however, women hold only a tiny
number of prominent positions in the Cabinet, National Assembly, local
government councils, and other public bodies. However, during the
debate on the new Constitution, women's groups, allied with traditional
chiefs, prevented the National Assembly from eliminating the proposed
senate for budgetary reasons. With half its seats intended for female
representatives of various interest groups, senate supporters
successfully argued that it was the only constitutional body that
ensured women's representation.
Section 4 Government Attitude Regarding International and
Nongovernmental Investigation of Alleged Violations of Human Rights
A wide variety of local and international human rights groups operated
without government restriction, investigating and publishing their
findings on human rights cases. Government officials are generally
cooperative and responsive to their views. However, many local
monitoring groups were not active in 1995.
The Ombudsman, a position mandated by the Constitution, was appointed,
but at year's end legislation was still being drafted concerning the
Ombudsman's power to investigate and take legal action against
government officials responsible for human rights and other abuses. The
Constitution also provides for a National Compensation Tribunal to
entertain claims of criminal and civil liability against the former
government. Tribunal rules and procedures neared finalization in 1995,
but limited funds exist for compensation. Members of the Constitution's
Human Rights Commission, also entrusted with monitoring and protecting
against violations of constitutional rights, had not been named at
year's end.
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 provides every citizen the right to equality and recognition
before the law. In practice, the capacity of government institutions to
assure equal rights for all citizens is limited.
Women
Spousal abuse, especially wife beating, is common. Malawian society
began to take more seriously problems of violence against women. The
press published more frequent accounts of rape and abuse, and the
judiciary imposed heavier penalties on those convicted of rape.
However, 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.
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 sex or marital status. In practice, however, discrimination
against women is pervasive, and women do 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 wives are often
victims of discriminatory inheritance practices in which the majority of
the estate is taken unlawfully by the deceased husband's family. Women
are usually at a disadvantage in marriage, family, and property rights
but have begun to speak out against abuse and discrimination.
As the coordinating body for women's organizations, the National
Commission on Women in Development (NCWID) led the fight to create and
preserve the Senate. It worked with a new human rights nongovernmental
organization, the Society for the Advancement of Women, to prepare
petitions and broadcasts on the Senate. The NCWID has undertaken
workshops to educate grassroot extension workers about the new legal
status of women. The Government addresses women's concerns through the
Ministry of Women and Children Affairs and Community Development.
Children
The Constitution provides for equal treatment for children under the
law, and the Government greatly increased spending on children's health
and welfare. The Government has established free primary education for
all children. A few charitable organizations attempted to reduce the
number of child beggars in urban areas and find alternative care for
them. The problem of street children worsened as the number of orphans
whose parents have died from HIV/AIDS has increased.
A few small ethnic groups practice female genital mutilation (FGM),
which is widely condemned by international health experts as damaging to
both physical and psychological health. The media have also begun to
report on the sexual abuse of children, especially in relation to
traditional practices of initiation. While still shrouded in secrecy,
emerging data on rites to initiate girls into their future adult roles
suggest that abusive practices are widespread and more damaging than
previously believed. Also, the common belief that sex with children
reduces the risk of AIDS contributes to the sexual abuse of minors.
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. Special schools and training centers, which assist
individuals with disabilities, and several self-supporting businesses,
run by and for the disabled, have existed for some time.
National/Racial/Ethnic Minorities
Malawians of African heritage are members of indigenous tribes and are
not discriminated against by government or society. However,
noncitizens do not enjoy equal treatment. Although former restrictions
on where Asians could live and work are now unconstitutional, only a few
Asians tested the new policy (see Section 2.d.).
The Government did not clarify its policy on temporary employment
permits for expatriates, although it granted most such applications.
The Government's decision not to automatically renew the permits had
caused concern and sometimes hardship to businessmen, teachers, health
workers, and missionaries. Business residence permits are readily
granted to new investors.
Section 6 Worker Rights
a. The Right of Association
Workers have the legal right to form and join trade unions, but unions
must register with the Ministry of Labor and Manpower Development
(MOLMD). Unionization is on the rise, but resistance on the part of
many employers remained. Army personnel and police may not belong to
trade unions. Other civil servants are allowed to form unions, and
their various factions ended internal divisions in mid-November when
free and fair elections resulted in a new, credible leadership. By
December there were 13 registered trade unions. Given the low percent
of the work force in the formal sector (about 12 percent), and the lack
of awareness of worker rights, and union benefits only a minuscule
percent of the work force is composed of union members. Statistics on
the numbers of union members are not available. Unions are independent
of the Government, parties, and other political forces. Although there
are no restrictions on the number of union federations, Malawi has only
one, the Malawi Congress of Trade Unions (MCTU), which was formed in
July. All unions are affiliated to it. According to MOLMD, there are
no unusually difficult registration procedures that would prevent a
trade union from registering. However, the Ministry will not register
more than one union representing a category of employees.
Members of registered unions in "essential services" have the right to
strike after having carried out prescribed procedures. Essential
services are nowhere specified; they are determined by the Minister of
Labor. The Trade Union Act requires that labor disputes in essential
services be reported in writing to the Minister of Labor, 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. The law implies that if a trade dispute has gone
through this process, and if it has not been resolved or referred to a
tribunal, workers in essential services may strike. By December there
had been numerous strikes: two by civil servants, one by Lilongwe Water
Board workers, one by air traffic controllers, and one by Malawi
Railways employees. There is no clear agreement on which strikes were
legal. As the Trade Union Act requires that unions must approve strikes
by secret ballot, all the strikes may have been illegal.
The laws do not specifically prohibit retaliation against strikers.
There is no prohibition on antiunion actions against unions which are
not legally registered. Arbitration rulings are legally enforceable.
Unions may form or join federations and affiliate with international
organizations with government permission.
b. The Right to Organize and Bargain Collectively
Unions have the right to organize. The right to bargain collectively,
although practiced, is only implied and not expressly protected by law.
The Ministry of Labor sets minimum wage rates based on recommendations
of the Tripartite Wages Advisory Board. In June the Government raised
minimum wages over the objection of organized labor.
The law prohibits antiunion discrimination by employers, but there are
no effective mechanisms for resolving complaints, and there is no legal
requirement that employers reinstate workers dismissed because of union
activities. When labor cases were reported to MOLMD offices, employers
did not resist Ministry efforts to reconcile the parties.
In August Parliament passed a bill to establish export processing zones,
but by year's end none had been established.
c. Prohibition of Forced or Compulsory Labor
The new Constitution prohibits forced labor, and such labor is not
employed.
d. Minimum Age for Employment of Children
The Constitution defines children as those under the age of 16 years and
prohibits the employment of children in work which is hazardous,
harmful, industrial, or interferes with their education. However, while
primary education is now free and universal, it is not compulsory.
Enforcement by police and labor inspectors in MOLMD is not effective
because of budgetary constraints. There is significant child labor on
tobacco and tea estates, subsistence farms, and in domestic services.
There is no special legal restriction on children's daytime work hours.
e. Acceptable Conditions of Work
There are two legislated minimum wage rates, but the administratively
set minimum wages are insufficient to support a worker and family. Wage
earners tend to supplement their incomes through farming activities
carried out through the extended family network. In June the urban
minimum wage rose to roughly $0.78 (MK10.85) per day, including $0.08
for rent; in all other areas it is roughly $0.56 (MK7.50) per day,
including $0.07 for rent. The MOLMD is unable effectively to enforce
the minimum wage. The prescribed minimum wages are largely irrelevant
for the great majority of citizens who earn their livelihood outside the
formal wage sector.
The maximum legal workweek is 48 hours, with a mandatory weekly 24-hour
rest period. The laws require payment for overtime work and prohibit
excessive compulsory overtime. However, labor inspections are more the
exception than the rule, and the statutory restrictions are frequently
violated.
The Workers' Compensation Act includes extensive occupational health and
safety standards. Enforcement of these standards by MOLMD is erratic,
and workers--particularly in industrial jobs--often work without basic
safety clothing and equipment. MOLMD officials say that workers have
the right to remove themselves from dangerous work situations without
jeopardy to continued employment. However, given the low level of
education of most laborers and the high level of unemployment, they are
unlikely to exercise this right. Workers dismissed for filing
complaints about workplace conditions can theoretically file a complaint
with the nearest labor office or sue the employer for wrongful
dismissal.
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