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In Dialogue with Malawi, Experts of the Committee against Torture Commend Efforts to Combat Human Trafficking, Ask about Access to Lawyers and the Definition of Torture
04 November 2022
The Committee against Torture today concluded its consideration of the initial report of Malawi, with Committee Experts commending efforts to combat human trafficking, and raising questions about access to lawyers and the definition of torture.
Anna Racu, Committee Vice Chairperson and Co-Rapporteur for Malawi, said that it was positive that Malawi had adopted the Trafficking in Persons Act. The State’s efforts to eliminate trafficking, including through the enactment of national legislation, was appreciated.
Ms. Racu said sources indicated that 90 per cent of people in the criminal justice system were unrepresented. Could information be provided on how Malawi intended to provide access to lawyers for all persons deprived of their liberty? What steps were being taken by the State to ensure the effectiveness of the system for free legal representation, including at the initial stage of police custody? Had the number of lawyers providing services increased? What actions were being taken to prevent the undue delay of trials?
There were persistent legislative gaps which impacted negatively on the overall prevention of torture in Malawi, said Ms. Racu, and the Criminal Code lacked comprehensive provisions addressing torture. Malawi had not yet criminalised torture as a separate offence under domestic law, which meant acts amounting to torture could only be prosecuted as other ordinary criminal offenses. Malawi should ensure that the absolute prohibition of torture was non derogable and that acts amounting to torture were not subject to any statute of limitations.
Introducing the report, Steven Willian Kayuni, Director of Public Prosecutions of Malawi and head of the delegation, said that since the enactment of the Trafficking in Persons Act in 2015, the Government had adopted the Standard Operating Procedures and the National Referral Mechanism to identify trafficking victims, and had established four safe homes for victims of trafficking.
On the issue of access to lawyers, Mr. Kayuni said that funding for legal aid had been increased significantly in recent years, but financial resources were still inadequate. The delegation added that the Legal Aid Bureau had increased the number of lawyers it employed from 18 in 2018 to 41 in 2022, and had also increased the number of its paralegals and offices. A provision was in place requiring all private lawyers to conduct pro-bono work. The Legal Aid Bureau was also constantly conducting recruitment activities and aimed to hire 15 new lawyers by next year.
Although Malawi’s statute books did not contain a definition of torture as provided under the Convention, various criminal offences which amounted to torture could be found in various pieces of legislation such as the Penal Code, the Trafficking in Persons Act, and the Prevention of Domestic Violence Act, said Mr. Kayuni. Malawi was seriously considering the issue and the Law Commission would consider whether the definition of torture should be placed in the Penal Code. When this was approved by the Cabinet, the necessary legislation would be drafted, and the bill would then be tabled before Parliament. It was therefore difficult to provide a specific timeline for this process to be completed, as multiple stakeholders were involved.
In closing remarks, Claude Heller, Committee Chairperson, expressed deep gratitude to the delegation for travelling to Geneva to participate in the dialogue, and for participating in a constructive spirit. He said that the Committee wished to continue dialogue with the State party regarding the implementation of the Convention and the Committee’s concluding observations.
In his concluding remarks, Mr. Kayuni reiterated the State’s commitment to implementing the Convention. Torture in any form should not be permitted, he said. Malawi would continue to work to uphold the provisions of the Convention and looked forward to receiving the Committee’s concluding observations.
The delegation of Malawi consisted of representatives from the Malawi Human Rights Commission; Public Prosecutor’s Office; Legal Aid Bureau; Malawi Police Service; Malawi Prisons Service; Ministry of Gender, Community Development and Social Welfare; Ministry of Justice; and the Permanent Mission of Malawi to the United Nations Office at Geneva.
Summaries of the public meetings of the Committee can be found here, and webcasts of the public meetings can be found here. The programme of work of the Committee’s seventy-fifth session and other documents related to the session can be found here.
The Committee will next meet in public on Tuesday, 8 November at 10 a.m. to consider the initial report of Somalia ( CAT/C/SOM/1 ).
Report
The Committee has before it the initial report of Malawi (CAT/C/MWI/QPR/1).
Presentation of Report
STEVEN WILLIAN KAYUNI, Director of Public Prosecutions of Malawi and head of the delegation, said although Malawi’s statute books did not contain a definition of torture as provided under the Convention, various criminal offences which amounted to torture could be found in various pieces of legislation such as the Penal Code, the Trafficking in Persons Act, and the Prevention of Domestic Violence Act. The Law Commission’s report on the review of the Prisons Act, which proposed progressive ways to improve the conditions of detention of prisoners, was tabled before Parliament in June this year. This would be a significant improvement to the current Act which predated Malawi’s current constitutional dispensation. The report also proposed the establishment of a parole board and a parole system, open prisons, and halfway houses. The amendment of the Penal Code was also tabled in Parliament in August 2022, which proposed to decriminalise sedition and enhance the legal framework for terrorism and sexual offences against children and persons with disabilities.
All detainees enjoyed legal safeguards under the Constitution of Malawi. To address prolonged pre-trial detention, the Prison Service had trained its own paralegal officers to provide in-house legal clinics to the newly admitted inmates which would facilitate speedy trials. The Government had made strides to improve the conditions of detention in prisons, however, overcrowding remained an issue. Since 2018, the Prison Service had constructed and rehabilitated prison cells in eight prison stations, providing an additional 2,635 square metres of space to prisoners. Measures had been taken to provide nutritious food and appropriate health services to prisoners, and to manage communicable diseases.
Almost all inmates living with HIV had access to medication, and health education sessions and mass screening of prisoners were conducted regularly.
To ensure accountability for actions of law enforcement officers, the Independent Complaints Commission of Police was established to investigate complaints against the Malawi Police. Since January 2021, the Commission had received 105 complaints from the public, with police brutality being a key complaint. The Prisons Inspectorate provided oversight over the conduct of prison officers and had the power to receive complaints from prisoners and other persons, conduct investigations, and recommend action to be taken against any prison officer. The Malawi Human Rights Commission was an independent national human rights institution, empowered to investigate any allegations of violations of human rights. Another institution crucial in the vindication of both victims of torture and persons accused of committing acts of torture was the Legal Aid Bureau, which had offices in 19 of the 28 districts of the country and provided lawyers and paralegals to support pre-trial detainees and prisoners.
Malawi had taken several measures to eliminate harmful cultural practices, including the enactment of the Prevention of Domestic Violence Act, the Marriage, Divorce and Family Relations Act, and the HIV and AIDS Prevention and Management Act, which contained provisions that criminalised all harmful practices. To combat attacks against persons with albinism, the Government had implemented several measures, including the establishment of a multi-sectoral National Technical Committee that discussed initiatives and strategies to end the violations of human rights of persons with albinism. Since the enactment of the Trafficking in Persons Act in 2015, the Government had adopted the Standard Operating Procedures and the National Referral Mechanism to identify trafficking victims. It had also established four safe homes for victims of trafficking.
Mr. Kayuni said Malawi ensured asylum seekers had access to refugee status determination procedures from the point of entry. To comply with the principle of non-refoulment, those who claimed asylum were assessed at the point of entry into Malawi and once cleared, were referred to the Transit Shelter for further processing. To ensure that acts of torture were investigated, and perpetrators arrested and prosecuted, the Government entered into extradition treaties with other countries. Challenges faced by Malawi in implementing the Convention included inadequate funds to implement progressive laws, lack of data collection mechanisms, and limited training development of law enforcement offices. Mr. Kayuni said Malawi was committed to ensuring the Convention was implemented at the national level and appealed for technical assistance in this area.
Questions by Committee Experts
ANNA RACU, Committee Vice Chairperson and Co-Rapporteur for Malawi, said on a positive note, Malawi had ratified all core United Nations treaties, apart from the Convention on the Rights of Migrant Workers and Members of their Families. There were persistent legislative gaps which impacted negatively on the overall prevention of torture in Malawi, and the Criminal Code lacked comprehensive provisions addressing torture. Malawi had not yet criminalised torture as a separate offence under domestic law, which meant acts amounting to torture could only be prosecuted as other ordinary criminal offenses. Malawi should ensure that the absolute prohibition of torture was non derogable and that acts amounting to torture were not subject to any statute of limitations.
Could an update be provided on the budget and staffing of the National Human Rights Institution; in particular, if the allocated budget allowed for monitoring visits to places of detention, and for carrying out activities on gender equality? What was the share of complaints concerning acts of torture and ill treatment? Could more information be provided on the visits undertaken to places of detention, and the reports issued following the monitoring of places of detention? How many visits was the Inspectorate of Prisons carrying out each year? Were these efficient? Were Malawian authorities envisaging to sign and ratify the Optional Protocol to the Convention against Torture?
Ms. Racu commended the State for the legal provisions adopted to ensure the implementation of fundamental legal safeguards, including the section of the Constitution that provided arrested persons with the right to be brought before a court within 48 hours of arrest. The Committee was concerned about the situation of people in pre-trial detention. Reports had been received that police officers imprisoned people without being taken to court, and the Malawi Inspectorate of Prisons found many people were being detained for bailable offences. In the report, Malawi stated that a custody register was maintained and updated, capturing the pertinent details of all suspects in police custody at any given time. The Malawi Prison Service also maintained remand registers which kept records of all detainees. Did the State plan on implementing a uniform central register? Did lawyers and the National Human Rights Institution have access to this registry?
Sources indicated that 90 per cent of people in the criminal justice system were unrepresented. Could information be provided on how Malawi intended to provide access to lawyers for all persons deprived of their liberty? What steps were being taken by the State to ensure the effectiveness of the system for free legal representation, including at the initial stage of police custody? Had the number of lawyers providing services increased? What actions were being taken to prevent the undue delay of trials? Were there CCTV video systems installed in places of detention? Could information be provided on how the State party was ensuring medical examinations on admission in the police detention units? What were the internal provisions to report cases of possible torture and ill treatment? Were there any specific registers? How many such cases were reported in the last two years? What were the results of these reported cases in terms of investigations, prosecutions, and punishments? What efforts were being taken to ensure compliance with the Istanbul Protocol?
The Committee was concerned that the Government continued to ban registration of perceived lesbian, gay, bisexual, transgender, queer, and intersex asylum seekers, arguing it was against the law; what was the State’s view on this? Information had been received that refugees were subject to an encampment policy that restricted them to the Dzaleka Camp, which was initially built for 10,000 individuals, and now held more than 51,000 persons. Could the Committee be updated on the status of this camp and the conditions for refugees? Did refugees have access to vital necessities, including water, sanitation, and food? How many complaints had been submitted by migrants, and how many had been investigated? Were there procedures to identify victims of torture among refugees who had fled their country and resided in Malawi?
The Committee welcomed the adoption of the Gender Equality Act, the Prevention of Domestic Violence Act, the Marriage, Divorce and Family Relations Act, and
at the policy level, the adoption of the National Plan of Action to Combat Gender-Based Violence in Malawi. Could the number of domestic violence cases be provided? Had these led to protective measures and criminal cases? What had caused the increase in gender-based violence cases between 2005 and 2018? It was very concerning that violence against women was committed by State agents. What measures were being taken to ensure victims could file complaints, and that these were investigated, with perpetrators sanctioned appropriately? What was the coordination mechanism at the Government level regarding violence against women? What measures were being taken to encourage women to report incidents of violence? How many shelters for victims were fully functional?
Ms. Racu asked how many violent incidents and suicides were recorded in prisons over the past four years? What mechanisms were in place to record and report violent incidents in prisons? Was solitary confinement applied to all categories of prisoners? Was this practice still applicable on minors, and if so, how often? Would the maximum possible period of solitary confinement be lowered? Could disaggregated data be provided on the frequency and duration of solitary confinement? How many of the deaths recorded in prison were due to violent incidents? In 2019, a report was issued documenting suspicion of police involvement in extrajudicial killings of 28 prisoners. Had investigations into deaths in prison been initiated? What were the procedures used for the examination of bodies? Had analysis been done on the main factors contributing to deaths in custody? What was the Government’s vision for improving detention conditions and reducing overcrowding? Could updated statistical data on capacity rates and living cell space be provided?
It was positive that Malawi had adopted the Trafficking in Persons Act. The State’s efforts to eliminate trafficking, including through the enactment of national legislation, was appreciated. The discovery of 28 bodies in a mass grave in the northern district of Mzimba highlighted how significant Malawi was as a human trafficking transit hub. The bodies were believed to be of persons from Somalia and Ethiopia who ran away from conflicts in their countries and were passing through Malawi en route to South Africa. How would the investigation proceed? What measures would be taken to prevent such atrocities in the future? What were the number of investigations, prosecutions and convictions of government officials complicit in human trafficking offenses? What measures had been taken to prevent sex trafficking, including child sex trafficking?
HUAWEN LIU, Committee Expert and Co-Rapporteur for Malawi, said there were good practices and progress about the protection of human rights and the prohibition of torture in Malawi, which deserved recognition and encouragement, including that Malawi had one of the strongest constitutional and legislative frameworks for human rights protection, particularly in civil and political rights. Although the death penalty remained in the Penal Code, there had been no executions since 1994. Malawi had maintained a de facto moratorium with death sentences commuted to life imprisonment. Despite many recommendations at the 2020 Malawi Universal Periodic Review to eliminate the death penalty, the Government had failed to support these recommendations. Earlier this year, the President commuted the death sentences of 22 people. Was the State ready to abolish the death penalty completely and formally in the law?
Was it possible to criminalise harmful traditional practices in future Criminal Code revisions? Could the Committee be informed about the obstacles to implement national laws against these practices? The prosecution of Eric Aniva in 2016, a HIV positive man who was accused of committing the harmful cultural practice called widow cleansing, was welcomed, however the 24-month sentence was criticised as being too lenient, with no fines paid as compensation for the victims. Was it guaranteed that harmful practices were punished as felonies? What measures had the State taken to punish these felonies and how was the judicial process properly done under the law? Could an update be provided on the State’s efforts to work with traditional leaders to challenge community systems which promoted harmful traditional practices? What had been the outcome of these efforts?
Mr. Liu said the Government of Malawi should be commended for taking initiatives to combat attacks against persons with albinism, including the establishment of the National Technical Committee. However, the Committee was concerned that these measures had not led to a reduction in attacks on persons with albinism. It was recommended that the State address the root causes of these attacks by promoting nationwide awareness-raising campaigns, and conducting robust investigations and trials in all cases, as well as increasing protection for victims. What measures was the State taking to implement the National Action Plan on Persons with Albinism and guarantee that individuals and their families directly benefited from proactive measures?
Were measures being taken by the State to increase the age of criminal responsibility from 10 years? What concrete measures had the State taken to address the issue of mob violence and vigilante attacks? Statistics showed that between 2015 and 2017, 57 deaths had been reported, caused by mob justice, and the National Human Rights Commission was considering an inquiry into the causes, scope, and possible remedies on this issue. What was the result and impact of this inquiry? What oversight mechanisms were in place to ensure the issue of mob justice was properly addressed and penalised? What strategy, from a socio-cultural perspective, did the State intend to implement to curb the issue of mob violence in Malawi?
The Criminal Code in Malawi did not expressly prohibit the use of confessional evidence obtained by torture. What evidence was sufficient for a judge or jury to find that a confession had been made voluntarily and accurately? Would the Government consider amending the Criminal Procedure and Evidence Code to amend domestic law and provide for the exclusion or non-admission of torture-tainted evidence? What measures were being adopted to train and equip police officers to carry out effective investigations in line with the rule of law and international policing standards, and build up the police’s capacity to take forensic evidence? What were the number of cases where allegations of torture had been made? How many confessions had been thrown out on the basis of torture? What procedures were in place within the judiciary to investigate claims of torture? Could data be provided on the effectiveness of the human rights training sessions held for police officers and prison officials?
What measures were being taken to ensure the wellbeing of human rights defenders? Was there a legislative agenda on a specific bill on protecting human rights defenders? Reports had been received about police beating journalists who reported on issues surrounding COVID-19 or who criticised the Government. What protections were in place to ensure that journalists could report on issues of public interest without fear of violence? What measures had the State adopted to expand the working fields of non-governmental organizations and let them participate in the activities of the Malawi Human Rights Commission?
The Malawian Penal Code Act criminalised consensual same-sex activities, punishable with up to 14 years imprisonment. The Constitution, which was ranked supreme over any other law, ensured that all persons were guaranteed equal protection from discrimination. There was a moratorium on arrests and prosecutions for consensual same sex-conduct in Malawi, however, this was suspended in 2016. Would Malawi take measures to amend the laws, especially provisions on alleged discrimination, to decriminalise consensual same-sex activities? There were 16 documented instances of abuse based on real or perceived sexual orientation in 2021, with no investigations and prosecutions. What measures had the State adopted to set up task forces dedicated to protect the legal rights of lesbian, gay, bisexual, transgender and intersex persons from violence and discrimination? What steps had the State taken to ensure that police officers acted in a non-prejudiced manner when receiving and investigating complaints from this group?
Responses by the Delegation
STEVEN WILLIAN KAYUNI, Director of Public Prosecutions of Malawi and head of the delegation, said Malawi was seriously considering the issue regarding the definition of torture. Although the definition was not in the legislation, there were several offences covered under the Penal Code as forms of torture, including grievous bodily harm. The Law Commission would consider whether the definition of torture should be placed in the Penal Code. When this was approved by the Cabinet, the necessary legislation would be drafted, and the bill would then be tabled before Parliament. It was therefore difficult to provide a specific timeline for this process to be completed, as multiple stakeholders were involved. On average, four visits were conducted by the Prisons Inspectorate, with the reports made available to the public. As an issue of interest to stakeholders, the ratification of the Optional Protocol was something which the State could potentially move forward with.
Mobile courts helped to ensure that all individuals were brought before the court in the required 48 hours, or else they were released from custody. The right to access lawyers was being seriously considered; statistics indicated an improvement in the number of lawyers and paralegals who had been recruited to provide legal aid.
Question by a Committee Expert
A Committee Expert said victims of torture had a right to fair and adequate compensation. Could the State provide information and statistical data on redress and compensation measures provided by the courts to victims and their families?
Responses by the Delegation
The Government was implementing a de facto moratorium on the death penalty. Although courts continued to issue death sentences, no death penalties had been carried out since 1994. The Government was considering formalising this moratorium. The conditions in cells on death row were slightly better than in regular cells, but there was a need to improve conditions in these and all other cells. Under the capital resentencing project created in 2015, sentences for all but three death row inmates had been reduced; 22 death sentences had been commuted in 2022.
Damages had been provided to victims of torture. In one case, damages totalling 31,000 United States dollars were paid to a victim.
Around 105 complaints of abuse by public officials had been registered by the Government. Two cases had been recommended for prosecution and the remaining cases were under consideration.
A register of detained persons was kept. Registers included the name of the detained person, and the date and reason for arrest. Registers were kept at police offices and in digital format and were open for inspection. Registers could be accessed by any lawyer or paralegal.
CCTV video systems were installed in two police stations. The Government intended to install them in the remaining 46 police stations as resources became available. The Malawi Human Rights Commission and the Police Investigation Commission oversaw the actions of police officers. Police had been trained in human rights, prevention of torture, and the principle of proportionality in the use of force; 3,000 officers had received such training in 2022. Most police officers had undergone forensic training domestically or overseas. Police officers faced challenges in terms of lack of equipment.
A diverse range of institutions were involved in investigations of deaths in police custody. Disciplinary committees had been established to deal with cases of violence committed by inmates.
The Government was committed to ensuring that the principle of non-refoulement was protected. It had made reservations to various articles of the 1951 Refugee Convention, but was considering revising them. The Government was working with various stakeholders to protect the human rights of migrants. Unaccompanied children were kept in safe homes and provided with support services. When homes were not available for these children, efforts were made to safely repatriate those children to their home countries. Refugees were able to lodge complaints of torture to the authorities.
When prisoners committed certain offences, including munity or acts of violence, they were placed in solitary confinement. Minors were not placed in solitary confinement. Children in conflict with the law were kept in reformatory centres, not in prisons. It was illegal to keep juveniles in prison. It was incorrect that 80 per cent of the prison population were young offenders. There were around 800 children in reformatory centres. These children participated in school education and were encouraged to participate in sporting activities. Alternative measures to detention of children were also used when applicable, such as placement under the guidance of a mentor, good behaviour orders, and mediation with victims. Due consideration was given to the child’s age, criminal record, mental ability and other factors. Divergence programmes were also provided for children, which included measures such as community service.
There were 343 women detained in prisons in Mali. Women in prison had access to health services. Training was provided to ensure that each facility had qualified medical staff. Pregnant women gave birth outside of prisons, in hospitals. Infant children were allowed to stay with their mothers at the expense of the State from zero to five years. Most prisons had early childhood development centres and provided child friendly meals.
A new Prisons Bill would be drafted after the assessment of a report on the prison system was completed. The report recommended the establishment of alternatives to detention such as halfway houses. As part of reform measures already undertaken, the number of medical centres in prisons had been increased and ventilation in cells had been improved.
The Human Rights Commission Act had been amended, and funding for the Commission had been increased up to 2020. Due to the domestic economic situation, funding was downgraded in 2021 and 2022. Recommendations of the Commission were taken seriously. The Commission consulted with the Government on human rights issues regularly. It was allowed to monitor prisons and had released annual reports on conditions in prisons since 2018. An ad-hoc investigation was conducted this year in response to ill-treatment by a prison officer. The Commission issued reports on all allegations that it investigated.
A dedicated Government committee was considering the possibility of raising the age of criminal responsibility.
The Government was holding an awareness campaign on preventing vigilante acts. Police conducted investigations into such acts.
The Ministry of Justice planned to conduct consultations on the decriminalisation of same-sex marriage. A de facto moratorium on arrests for same-sex relations was in place. Lesbian, gay, bisexual, transgender and intersex persons enjoyed the rights provided in the Bill of Rights. Cases of discrimination of such persons often went unreported, so the Government was working to encourage reporting.
Gender-based violence cases, including rape and sexual assault, had increased during the COVID-19 pandemic. To address this increase, the Government had increased the number of shelters and strengthened services provided for victims.
Police officers had been accused of raping women and girls in 2019. This incident had been independently investigated in 2020, and the officers responsible had been stripped of their duties and prosecuted. The court ordered around 150,000 United States dollars to be paid in damages to the victims.
Training was provided to public officials on providing support to victims of gender-based violence and investigating gender-based violence cases. Awareness raising campaigns were carried out in communities to encourage women and girls to report cases of abuse. There were around 16,000 cases of gender-based violence reported in 2021, and 13,000 thus far in 2022. Gender disaggregated data was collected by the Government on topics such as the response to natural disasters. Law enforcement officers held regular meetings to discuss issues related to gender-based violence. The Government was committed to ending gender-based violence and harmful practices.
Legislation had been introduced that aimed to end early marriages and prevent harmful cultural practices. Religious leaders, teachers and local law enforcement officials played crucial roles in eliminating harmful practices in communities.
There had been a decrease in attacks on persons with albinism. A committee on preventing discrimination of persons with albinism had been established, and an awareness campaign on the rights of persons with albinism was being carried out. A handbook on the prosecution of cases of discrimination of persons with albinism had been developed. The Government also conducted meetings at the community level to encourage communities to protect persons with albinism.
Since 2018, there had been three cases of abduction of human rights defenders, and three petrol bomb attacks on such persons. The Government was committed to protecting human rights defenders and journalists. It informed human rights defenders of their legal rights to report cases of abuse.
Measures had been implemented to identify trafficking victims. Training on identification was provided for social welfare workers and other public officials. The Government was implementing its national action plan on women, peace and security, which included measures to prevent trafficking. Victims could lodge complaints with police, and legal aid was provided to victims as needed. In 2021, around 120 victims of trafficking and 80 traffickers had been identified. There had been 251 reported cases of trafficking in persons in 2021 and 2022. The Anti-Trafficking in Persons Act had been introduced in 2019. The Government provided financial resources to support efforts to identify victims and perpetrators of trafficking in persons.
Questions by Committee Experts
ANNA RACU, Committee Vice Chairperson and Co-Rapporteur for Malawi, thanked the State party for its engagement in promoting human rights. The legal provisions that had been adopted were quite advanced, but the issue was their implementation.
There was a major discrepancy in the number of lawyers in proportion to the population. There was a need for further measures to increase the number of lawyers. What actions had been taken to reduce delays in conducting trials? Why were so many people detained beyond legal limits? Prolonged detention in pre-trial facilities may amount to cruel, inhumane or degrading treatment.
What was the number of medical staff working in the prison system? What measures were in place to improve the staffing level and the level of medical services provided to inmates? Could doctors report suspected cases of abuse of detainees? Were there examples of reporting of such cases, and had perpetrators been punished? How many cases of self-harm were recorded in prisons? What measures were in place to prevent violence among prisoners? Detainees suffering from mental illness were often held in solitary confinement. What measures were in place to support such detainees’ health?
Ms. Racu asked for information on the root causes of deaths in custody. Why over the last five years had the number of deaths in a certain prison been four or five times higher than that of others? Was there a standardised procedure for investigating deaths in custody? What punishments were issued for persons responsible for deaths that were related to ill treatment? Ms. Racu said that the Government needed to prioritise improving the health of inmates and the conditions of detention, and to speed up the process of adopting the new Prisons Bill to address the issue of overcrowding.
The situation in refugee camps remained a source of concern. Had the State party established a mechanism for identifying cases of abuse within these camps? What was the legal procedure for appealing decisions on asylum?
Ms. Racu called for more information on the professional capacity of staff at juvenile detention facilities. Were migrant children held with other children in these facilities?
HUAWEN LIU, Committee Expert and Co-Rapporteur for Malawi, said that the delegation had taken great efforts to prepare its informative replies. Child marriage had increased during the COVID-19 pandemic, despite legislation prohibiting it. Why was this? There was also a lack of prosecution of persons who conducted female genital mutilation. Mr. Liu called on Malawi to improve the legal system to include systems of redress for victims of female genital mutilation and other abuses.
He also called on the State to protect the best interests of the child and revise legislation on trafficking in cooperation with civil society. Civil society organizations should be encouraged to visit places of detention and engage with the Human Rights Commission. Malawi also needed to integrate human rights education into training for police and the judiciary. Centralised detainee registration could prevent enforced disappearance and protect the rights of detainees. Birth registration could prevent infanticide. There was also a need to promote reporting of domestic violence cases and corruption within the judiciary. The State also needed to promote increased representation of women in the police force and the judiciary. The State party needed to work to improve conditions in detention centres.
Childcare and child education should be promoted in the State. Mr. Liu welcomed that Malawi emphasised the best interests of the child, as well as efforts to raise the minimum age of criminal responsibility. Children needed to be protected from torture and abuse.
Legal reforms were needed to revise the definition of human trafficking. The definition needed to cover different crimes of trafficking. The current legal framework did not cover cases of trafficking of persons for sexual exploitation facilitated through online dealings. The State party also needed to collect more detailed data on trafficking cases, perpetrators and victims.
Responses by the Delegation
STEVEN WILLIAN KAYUNI, Director of Public Prosecutions of Malawi and head of the delegation, said that Malawi had a women’s lawyers association and bodies for women judges and women police officers. These organizations were involved in efforts to increase women’s representation in these respective fields.
The Legal Aid Bureau, the police and corrective service staff were collectively responsible for monitoring the lengths of pretrial detention. All arrested persons had the ability to access medical services at the nearest medical facility. Doctors and clinical officers were stationed in prisons, and detainees were taken to medical facilities when those doctors could not provide treatment.
Most asylum seekers sought to travel out of Malawi. Most appeals were related to permission to travel out of the country. However, there was an appellate process in place regarding asylum decisions.
All deaths in custody were investigated and reports establish. Where deaths were found to be suspicious, officers were prosecuted and tried in court. There were issues of overcrowding in certain prisons that led to uneven numbers of deaths in different prisons of similar capacity.
Medical officers had the duty to report suspected cases of ill treatment by public officers. About eight incidents of violence between inmates had occurred during the reporting period, all of which had been investigated. When necessary, prisoners were transferred to separate prison cells in response to such cases.
The delegation said that there were over 700 private lawyers operating in the State, but the Legal Aid Bureau had only 41 lawyers and dealt with most cases. A provision was in place requiring all private lawyers to conduct pro-bono work. The Legal Aid Bureau was also constantly conducting recruitment activities and aimed to hire 15 new lawyers by next year.
Concluding Remarks
CLAUDE HELLER, Committee Chairperson, expressed deep gratitude to the delegation for travelling to Geneva to participate in the dialogue, and for participating in a constructive spirit. He said that the Committee wished to continue dialogue with the State party regarding the implementation of the Convention and the Committee’s concluding observations.
STEVEN WILLIAN KAYUNI, Director of Public Prosecutions of Malawi and head of the delegation, thanked the Committee for the constructive dialogue. He reiterated Malawi’s commitment to implementing the Convention. Torture in any form should not be permitted. The delegation thanked its international partners for supporting the facilitation of the dialogue, and called on those partners for further support in implementing the provisions of the Convention in Malawi. Malawi would continue to work to uphold the provisions of the Convention and looked forward to receiving the Committee’s concluding observations.
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