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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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[end of document]

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