Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Worst Forms of Child Labour Convention, 1999 (No. 182) - Malawi (Ratification: 1999)

Articles 3 and 7 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, although various penal provisions relate to the offences of abduction and trafficking, these provisions are not comprehensive. However, the Committee noted that the Child Care, Protection and Justice Bill, which was adopted on 28 June 2010, contains a definition of child trafficking and imposes a penalty of life imprisonment for convicted traffickers, and expressed the firm hope that the adopted version of the Child Care, Protection and Justice Bill prohibits the sale and trafficking (both internal and cross-border) of all persons under 18 years of age for the purposes of labour and sexual exploitation.

The Committee notes that section 179(1) of the Child Care, Protection and Justice Act provides that a person who takes part in any transaction involving child trafficking is liable to life imprisonment. According to section 179(2), child trafficking means the recruitment, transaction, transfer, harbouring or receipt of a child for the purposes of exploitation. The Committee observes, however, that according to section 2(d) of the same Act, a “child” means a person below the age of 16 years. The Committee reminds the Government that by virtue of Article 3(a) of the Convention, Member States are required to prohibit the sale and trafficking of all children under 18 years of age. The Committee accordingly urges the Government to take immediate measures to ensure that the Child Care, Protection and Justice Act is amended to extend the prohibition of sale and trafficking to cover all children under the age of 18, as a matter of urgency. The Committee also requests the Government to provide information on the application in practice of this Act, including in particular, statistics on the number and nature of violations reported, investigations, prosecutions, convictions and penal sanctions imposed.

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 observed that the use, procuring or offering of young persons under 18 years of age for prostitution, for the production of pornography or for pornographic performances existed in Malawi and that national legislation did not appear to prohibit these worst forms of child labour. The Committee noted the Government’s statement in its report to the Committee on the Rights of the Child (CRC) of 17 July 2008, that, while there are no data available on the number of children involved in sexual exploitation, including prostitution and pornography, these are recognized problems in the country (CRC/C/MWI/2, paragraph 323). However, the Committee noted the Government’s indication that it endeavoured to include such a prohibition in the ongoing review of labour laws, including the Employment (Amendment) Bill, which was going through a final round of examination prior to submission to the Ministry of Justice.

The Committee notes that the Government’s report contains no new information on the adoption of the Employment (Amendment) Bill. It notes, however, the Government’s statement that the Child Care, Protection and Justice Act prohibits the procuring or offering of boys and girls under the age of 16 years for the purpose of prostitution, for the production of pornography or for pornographic performances. In this regard, the Committee observes that section 84(1)(d) 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.

The Committee reminds the Government that Article 3(b) of the Convention requires Member States to prohibit the use, procuring or offering of a child under 18 years for prostitution, for the production of pornography or for pornographic performances. The Committee once again expresses its deep concern at the continued lack of regulation to prohibit the commercial sexual exploitation of children, and once again draws the Government’s attention to its obligation under Article 1 to take immediate measures to prohibit the worst forms of child labour. The Committee accordingly urges the Government to take the necessary measures, as a matter of urgency, to ensure the adoption of national legislation prohibiting the use, procuring or offering of both boys and girls under 18 years of age, for the purpose of prostitution, for the production of pornography or for pornographic performances, and to include sufficiently effective and dissuasive sanctions in this legislation. It requests the Government to provide information on the progress made in this regard.

Article 4(1). Determination of types of hazardous work. Following its previous comments, the Committee notes the Government’s information that a list of hazardous work for children is in the process of being finalized. Observing that the Government has been referring to the List of Hazardous Work since 2006, the Committee urges the Government to take the necessary measures to ensure that the draft list of types of hazardous work is adopted as a matter of urgency. It requests the Government to provide a copy of this list as soon as it is adopted.

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, according to the summary outline for the ILO–IPEC Action Programme of 2007, entitled “Mzimba Project on Elimination of Child Labour”, there were 734,845 child labourers working in the agricultural sector in Malawi, out of which 288,341 were working in hazardous occupations. It also noted that the CRC, in its concluding observations of 27 March 2009, expressed concern that many children between 15–17 are engaged in work that is considered as hazardous, especially in the tobacco and tea estate sector, which continues to be a major source of child labour (CRC/C/MWI/CO/2, paragraph 66). The Committee noted that ILO–IPEC was implementing several action programmes in the tobacco sector, which sought to withdraw children from hazardous work and reintegrate these children into formal and non-formal educational programmes, as well as to raise awareness about child labour in agriculture.

The Committee notes the Government’s information that labour inspections have been undertaken in the tobacco sector, to help withdraw children from this sector, to rehabilitate and then to send them back to school. It further notes that, within the framework of the National Action Plan (NAP) on Child Labour, it is envisaged to improve awareness of child labour at all levels; prevent and withdraw children from such labour; and provide these children with educational opportunities. In this regard, the NAP on Child Labour indicates that the agricultural sector, including tobacco plantations and family farms, constitutes one of its sectoral priorities, as it accounts for 53 per cent of child labour in the country. The Committee urges the Government to strengthen its efforts to protect children from hazardous work in the tobacco sector through measures taken within the framework of the NAP on Child Labour. In this regard, it requests the Government to provide concrete information on the number of children who have been thus prevented or withdrawn from engaging in this type of hazardous work, and then rehabilitated and socially integrated.

Clause (e). Special situation of girls. The Committee previously noted that, according to the Malawi child labour survey of 2002, all the child victims of commercial sexual exploitation were girls. Half of these girls had lost both of their parents, while 65 per cent of them did not attend school past the second year. The Committee also noted that the Committee on the Elimination of Discrimination against Women, in its concluding observations of 5 February 2010, expressed concern at the extent to which women and girls are involved in sexual exploitation, including prostitution, and the limited statistical data regarding these issues (CEDAW/C/MWI/CO/6, paragraph 24). It therefore requested the Government to provide information on the measures taken to protect girls under the age of 18 from commercial sexual exploitation.

The Committee notes with regret that the Government provides no information on this point in its report. It therefore urges the Government to strengthen its efforts to prevent girls under the age of 18 from becoming victims of commercial sexual exploitation, and to remove and rehabilitate victims of this worst form of child labour, within the framework of the NAP on Child Labour or otherwise. It once again requests the Government to provide information on the concrete measures taken in this regard, as well as information on the impact of these measures. To the extent possible, all information provided should be disaggregated by age and sex.

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