Malawi

Summary and Analysis

Since Malawi ratified the Convention on the Rights of the Child (CRC) in 1991 without reservation, the government has sought to bring legislation, policy and practice into line with the requirements of the Convention.  With regards to the implementation of Article 12, the Committee on the Convention on the Rights of the Child noted in 2002 that while several laws had incorporated the principle of respect of the views of the child, traditional attitudes continued to limit the full implementation of the Article,[2] and the Convention’s status in Malawi more generally remained unclear.[3]  Malawi ratified the African Charter on the Rights and Welfare of the Child (ACRWC) in September 1999.

Although Malawi continues to struggle to bring its law and practice in line with these agreements, there are certain laws and their court applications that provide that children have an opportunity to be heard in matters concerning them.  In adoption cases, under the Adoption Act, a social welfare officer is supposed to hear the views of the child to be adopted and write a report based on the interviews; the consent of the biological parents, if alive, is sought, but the Ministry of Gender, Youth and Community Services serves as guardian ad litem in the court proceedings.[4]  In custody cases presided over by professional magistrates, the judge takes the children into the chambers (not the open court) to hear the views of the children so as to obtain relevant information that would assist in forming the judgment.[5]  In cases of foster parenting, no child is placed unless his or her views are heard.[6]

However, customary law - the dominant law of lay magistrate courts - does not support the principle of hearing the views of the child, even in matters that concern her or him.  Most custody cases are handled in such courts, where the granting of custody is based on culture, not procedure, and may not be in the best interests of the child; in most cases, the child’s right to express his or her views is not exercised.[7]

Separation of children from parents is traditionally not encouraged.  Children of parents in urban areas are most commonly sent to their relatives, mainly grandparents in rural areas, if the parents fail to take care of them (financially or socially, i.e. a girl becoming pregnant).  It is also common for children in rural areas to be sent to their worthier relatives, mainly in urban areas.  Such separations are done in the spirit of the best interests of the child.[8]

Culture in Malawi is the principal obstacle restricting children from expressing their views.  Although the Government has provided by law that children’s voices be heard in many matters that interest them, currently, society views children’s right to increased freedom of expression as contributing to the increasing problem of juvenile delinquency.[9]

Related Sources of Law (In Order of Authority)

Statutes[10]

The Adoption of Children Act (Cap 26:01)

The Marriage Act (1903)

The Children and Young Persons Act (Cap. 26:03)

International Law

United Nations Convention on the Rights of the Child (CRC)(1989)[11]

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Regional Agreements

African Charter on the Rights and Welfare of the Child (ACRWC)(1990)[12]

Article 4: Best interests of the child

1. In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.

2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate laws.      

Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Committee on the Rights of the Child, Twenty-ninth session, Concluding observations of the Committee on the Rights of the Child: Malawi, ¶ 29, U.N. Doc. CRC/C/15/Add.174 (Apr. 2, 2002), available here, and also as .pdf Document, and also as Word Document.

[3] U.N. CRC, 29^th Sess., 765^th mtg. at 3, U.N. Doc. CRC/C/SR.765 (Jan. 31, 2002), available here, and also as .pdf Document, and also as Word Document.

[4] Committee on the Rights of the Child, Initial reports of States parties due in 1993: Malawi, ¶ 199, U.N. Doc. CRC/C/8/Add.43 (Jun. 26, 2001), available here, and also as .pdf Document, and also as Word Document.

[5] Id., para 104.

[6] Id., para 108.

[7] Id., para 104-108.

[8] Id., para 107.

[9] Id., para 109.

[10] Statute law from Malawi is currently unavailable electronically.  Texts of statutes forthcoming from contacts within country.

[11] United Nations Convention on the Rights of the Child, A/RES/44/25 (1989), entered into force Sept. 2, 1990, available at http://www.ohchr.org/english/law/crc.htm.