United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1994 - Malawi, 30 January 1995, available at: http://www.refworld.org/docid/3ae6aa4520.html [accessed 12 July 2014]
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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 improvemet 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 socital 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.
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.
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.
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.
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.