Observation (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 182) sur les pires formes de travail des enfants, 1999 - Malawi (Ratification: 1999)

Articles 3 and 7(1) of the Convention. Worst forms of child labour and penalties. Clause (a). All forms of slavery or practices similar to slavery. Sale and trafficking of children. In its previous comments, the Committee noted that section 179(1) of the Child Care, Protection and Justice Act which establishes penalties for any transaction involving child trafficking applied only to children under 16 years of age. It also noted from the concluding observations of the United Nations Human Rights Committee of 18 June 2012 (CCPR/C/MWI/CO/1, paragraph 15), that a draft anti-trafficking bill was in the process of consideration by the Parliament. The Committee asked the Government to ensure that the anti-trafficking bill would be adopted as soon as possible.

The Committee notes with satisfaction the adoption of the Trafficking in Persons Act No. 3 of 2015 which criminalizes and punishes the offences related to trafficking of children. According to section 15 of the Act, a person who commits an offence of trafficking of a child under the age of 18 years shall be liable to imprisonment for 21 years. “Trafficking in persons” as defined under section 2 of the Act, means recruiting, transporting, transferring, harbouring, receiving or obtaining a person within or beyond the territory of Malawi for the purposes of exploitation, including labour and sexual exploitation. It also notes the Government’s information in its report that several cases of trafficking of children have been dealt with under the new Act and that the perpetrators were prosecuted, and sentenced to imprisonment for 14 to 18 years. The Committee requests the Government to provide specific information on the application in practice of the Trafficking in Persons Act, including in particular, statistics on the number and nature of violations reported, investigations, prosecutions, convictions and penal sanctions imposed for the sale and trafficking of children under 18 years of age.

Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. In its previous comments, the Committee noted that section 84(1)(d) of the Child Care, Protection and Justice Act No. 22 of 2010 only provides that a social welfare officer who has reasonable grounds to believe that a child is being used for the purposes of prostitution or immoral practices, may remove and temporarily place the child in a place of safety and does not contain any prohibition against the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. It noted the Government’s indication that it would endeavour to include this prohibition in the labour laws which were under review. The Committee expressed its deep concern at the continued lack of regulation to prohibit the commercial sexual exploitation of children.

The Committee notes the Government’s information that the Child Care Protection and Justice Act has been reviewed to set the age of a child at 18 years through the harmonization process by the Law Commission which is still ongoing. It also notes the Government’s statement that the Child Care Protection and Justice Act and the Penal Code have provided benchmarks for the judiciary in dealing with cases regarding prostitution, pornography and sale of children. The Government further indicates that the revision of these legislations are under consideration.

In this regard, the Committee notes that the Penal Code of 1930 as amended by Act No. 9 of 1999 contains provisions which establish penalties for the offences related to: (a) procuration or attempts to procure any girl or women under the age of 21 years to become a prostitute or an inmate of or frequent a brothel, either in Malawi, or elsewhere (section 140); (b) unlawful detention of any woman or girl in any brothel (section 143). Persons committing such offences shall be guilty of a misdemeanour which includes imprisonment for more than three years. Section 155 deals with the indecent assault of boys under 14 years of age which shall be punishable with imprisonment for seven years. However, the Committee observes that there appears to be no provision criminalizing the use of a child by a client for prostitution and, furthermore, there are no provisions that protect boys aged 15 to 18 years from the use, procuring or offering for prostitution. In addition, the Committee observes that there appear to be no provisions prohibiting the use, procuring or offering of children for the production of pornography or for pornographic performances

In this regard, the Committee notes that the United Nations Committee on the Rights of the Child (CRC), in its concluding observations of March 2017 expressed its grave concern at the low rate of reporting and delays in prosecuting the perpetrators of sexual exploitation and the limited access to justice by child victims, particularly of girls (CRC/C/MWI/CO/3-5, paragraph 22(d) and (e)). The Committee therefore urges the Government to take the necessary measures, within the framework of the revision of national legislation, to ensure the protection of boys between 15 to 18 years from commercial sexual exploitation as well as to criminalize clients who use both girls and boys under 18 years of age for prostitution. The Committee also requests the Government to indicate the measures taken or envisaged to ensure that the use, procuring or offering of a child under 18 years for the production of pornography or for pornographic performances is prohibited. It finally requests the Government to take the necessary measures to ensure that effective mechanisms are established to deal with cases concerning the use of children for purposes of commercial sexual exploitation and that thorough investigations and prosecutions are carried out against persons responsible for such offences and that effective and sufficiently dissuasive penalties are imposed in practice.

Article 7(2). Effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour and providing assistance for the removal of children from these types of work and for their rehabilitation and social integration. Children engaged in hazardous work in commercial agriculture, particularly tobacco estates. In its previous comments, the Committee noted that children were engaged in work that is considered as hazardous, especially in the tobacco and tea estate sector. It noted that in Mzimba, Mulanje and Kasungu, child labour continued to be dominated by the agricultural sector and that children often worked in hazardous conditions without protective gear, and with hazardous equipment such as hoes, ploughs, saws, sickles, panga knives and sprayers.

The Committee notes the Government’s information that Malawi being an agro-based economy with tobacco ranking highest in generating the Gross Domestic Product (GDP), this sector demands much labour throughout its supply chain. Child labour in this sector occur mainly due to the tenancy system, whereby children of the tenants working in tobacco estates engage in child labour, often in hazardous work in the fields. In this regard, the Committee notes the Government’s reference to the ongoing projects on Achieving Reduction of Child Labour in Support of Education (ARISE) and the Child Labour Elimination Actions for Real Change (CLEAR I and II) supported and funded by the Elimination of Child Labour in Tobacco Growing Foundation (ECLT) which enhanced the protection of children from engaging in child labour in tobacco farms and necessitated their withdrawal and rehabilitation. According to the information from the Development Cooperation (DCPR) Final Progress Report (FPR) of the ILO–IPEC, within the framework of the ARISE project, from April 2015 to December 2018, 2101 children (1,027 boys and 1,074 girls) were provided with rehabilitation services; 2,012 children (986 boys and 1,026 girls) were prevented from child labour, 675 children (365 boys and 310 girls) were withdrawn from child labour; and 59 children were protected and had their workplaces improved. It also notes from the DCPR-FPR of the ILO–IPEC of 2016 and 2018 that since 2016, Malawi has been actively implementing the project entitled “Strengthening Social Dialogue in selected Tobacco Growing Countries”. Within this project, several Cooperatives and Associations in the tobacco growing communities have been strengthened and their capacities enhanced to deal with child labour situations; awareness has been created on child labour through public meetings at national, district and community level; training of trainers has been conducted for agricultural cooperatives on the elimination of child labour through social dialogue; and training on child labour has been provided to 33 labour officers and 199 council members from five districts. The Government of Malawi has further embarked on a project on Accelerating Action for the Elimination of Child Labour in Supply Chains in Africa (ACCEL) which focusses on the elimination of child labour in the tea and coffee supply chains. The Committee encourages the Government to continue its efforts to protect children from hazardous work in these sectors, in particular in tobacco plantations, through measures taken within the framework of the various ongoing projects, namely ARISE, CLEAR, Strengthening Social Dialogue in selected Tobacco Growing Countries, and ACCEL. It requests the Government to continue to provide concrete information on the number of children who have been prevented or withdrawn from engaging in this type of hazardous work, and then rehabilitated and socially integrated.

Clause (e). Special situation of girls. Commercial sexual exploitation of children. In its previous comments, the Committee noted that the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW), in its concluding observations had expressed its concern at the extent to which women and girls were involved in sexual exploitation, including prostitution, and the limited statistical data regarding these issues (CEDAW/C/MWI/CO/6, paragraph 24). It therefore urged the Government to strengthen its efforts to prevent girls under the age of 18 from becoming victims of commercial sexual exploitation and to provide information on the concrete measures taken to protect, remove and rehabilitate them.

The Committee notes the Government’s information that the Ministry of Education, in collaboration with other stakeholders, is implementing education programmes to support the girl child and keep them in schools through bursaries and the provision of critical amenities. Programmes like Village Savings and Loans are being implemented in rural areas to empower women and support themselves and startup businesses. The Committee, however, notes that the CRC, in its concluding observations of March 2017 on the Optional Protocol to the Convention on the rights of the child on the sale of children, child prostitution and child pornography expressed its concern at the reports of cases of child sex tourism at the holiday resorts along Lake Malawi (CRC/C/OPSC/MWI/CO/1, paragraph 23). The Committee urges the Government to continue to take effective and time-bound measures to prevent girls under the age of 18 years from becoming victims of commercial sexual exploitation and to remove and rehabilitate victims of this worst form of child labour. It also requests the Government to provide concrete information on the measures taken in this regard, and on the number of these children who have been effectively rehabilitated and socially integrated. To the extent possible, all information provided should be disaggregated by age and gender.

The Committee is raising other matters in a request addressed directly to the Government.