United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1995 - Malawi, 30 January 1996, available at: http://www.refworld.org/docid/3ae6aa3a1c.html [accessed 25 May 2013]
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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.
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.
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.
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.
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.