Malawi: UPR Submission September 2014

Women’s Rights

During its first Universal Periodic Review (UPR) in 2010, Malawi acknowledged that although its Constitution recognizes the right of women to full and equal protection of the law, and non-discrimination on the basis of their gender or marital status, “disparities exist between what is contained in the Constitution, applicable international instruments and what is obtaining on the ground.” The government undertook to take steps to continue promoting equality between men and women, including by working with the Malawi Law Commission to “introduce policies that prohibit harmful social and cultural practices that perpetuate the subservice of women and which invoke exploitative sexual relations.”

While the government has taken some positive steps toward fulfillment of the gender equality pledges it made in 2010, it has failed to live up to most of them -- women’s rights in Malawi remain largely curtailed. Violence against women is still widespread, and the government has failed to curb the country’s high rates of child marriage, which is one of the highest in the world.[1]

On average, one out of two girls in the country will be married by her 18th birthday, according to the United Nations.[2] The UN Population Fund (UNFPA) ranks Malawi eighth of the 20 countries that are considered to have the highest rates of child marriage, and notes that there has been little to no change in child marriage prevalence in the country in the last decade.[3]

Malawi’s laws do not explicitly prohibit child marriage, and there is no set minimum age of marriage. The laws also fail to consistently define who is a child, to require free and full consent to marriage, and to criminalize marital rape. The government has yet to enact the Marriage, Divorce and Family Relations Bill -- a comprehensive family law developed in 2006 that has stronger protections from child and forced marriage and provides 18 as the minimum marriage age—despite indicating in the 2010 UPR that it was committed to passing the bill. It has also failed to develop and implement a comprehensive national plan to combat child marriage.

Victims of child marriage in Malawi face many barriers in getting help from authorities. Many girls and women do not know what their rights are under the law, or do not know where to look for assistance other than from their own families or traditional authorities, who often fail them. The absence of clear family legislation means that most matters relating to marriage, divorce, maintenance payments, and domestic violence are handled through customary procedures that discriminate against women and therefore fail to provide adequate redress to survivors of gender-based violence.

These problems are compounded and perpetuated by poor coordination among government agencies responsible for responding to violence against women; little or no monitoring of cases handled by officials from these agencies; negligent and dismissive police responses to reports of violence against women; lack of infrastructure, and well-trained personnel in the justice system; and widespread and deep-seated discriminatory attitudes towards women. Moreover, Malawi does not have sufficient specialized safe spaces where victims of forced marriage and other gender-related abuses can find shelter and protection. The 2013 “Cashgate” scandal exposed widespread corruption in government which undermines Malawi’s capacity to deliver essential services and improve people’s lives.

As a result of these serious shortcomings by the government, many women and girls continue to struggle with the long-lasting and often devastating harms of child marriage.

Rights of Lesbian, Gay, Bisexual and Transgender (LGBT) People

During the 2010 UPR, Malawi rejected the recommendation to decriminalize same-sex conduct saying that the wishes of the people of Malawi in this regard should be respected. To a recommendation to end incitement to discrimination and homophobia on the basis of sexual orientation, Malawi stated that there was no homophobia or incitement against gay people.

Section 153 of the Malawian criminal code, which criminalizes consensual sexual conduct between adults, violates the right to privacy, non-discrimination and other rights under international law. The Malawian constitution guarantees every person's right to liberty, dignity, and security of person. Article 20 prohibits discrimination on all grounds, and article 21 guarantees the right to privacy.

Arrests on the basis of Malawi’s anti-gay laws have been rare – two men were convicted under section 153 in 2009 and sentenced to 14 years, but were subsequently pardoned. But Human Rights Watch has found that even unenforced anti-gay laws have nefarious consequences, including blackmail, restricted access to health services, and lack of access to justice. While decriminalization is an important first step, it needs to be accompanied by a real government commitment to address public homophobia, and support civil society efforts to promote human rights more broadly.

The recently passed Marriage Bill contains  provisions that violate Malawi’s human rights obligations to protect against discrimination based on sexual orientation and gender identity, also in the area of family relations. The bill defines all marriages, unions, cohabitation, or customary marriages as being between a man and a woman, ignoring the reality of same-sex relationships, and codifying state rejection of all same-sex relationships, whether married or not. The bill defines sex or gender as the sex assigned to a person at birth, denying equal rights to form a family to trans and intersex persons, and others whose identity does not align with that assigned at birth.

The bill validates the criminalization of “unnatural offences” (often used to criminalize consensual same-sex relations between adults) by listing a conviction of such an offense as acceptable evidence of irretrievable marriage breakdown. This same section lists rape and “unnatural offences” as similar grounds for marriage breakdown, thus perpetuating the notion that consensual same-sex relationships either do not exist or are as damaging as sexual assault.