Wayzata World Factbook 1996/The World Factbook - 1996 Edition - Wayzata Technology (3079) (1996).iso/pc/text/humanrts/malawi.txt

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TITLE: MALAWI HUMAN RIGHTS PRACTICES, 1994
AUTHOR: U.S. DEPARTMENT OF STATE
DATE: FEBRUARY 1995

                             MALAWI


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
improvement 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
societal 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.

     b.  Disappearance

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.

     Women

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.

     Children

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.

     National/Racial/Ethnic Minorities

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.