Desmond Mhango’s series on Child Labour in Malawi continues with this fifth article.
Following his detailed explanation of the situational context of child labour in Malawi, including a depiction of the places and practices where child labour occurs, Mhango proceeded with his series by highlighting the push factors that contribute to child labour in Malawi. In this week’s contribution he examines the state’s responsibility to address child labour.
State Efforts to Address Child Labour
Malawi has a Social Protection Programme backed by a Social Support Policy, which is under review because it expired. The policy sits with the Ministry of Economic Planning. Unfortunately, the most visible of the programmes under the policy is the Social Cash Transfer (SCT). Development partners highly implement the SCT, while the Malawi government only caters to one of the twenty-eight districts.
The Cash Transfer Programme needs to be more robust in serving children because it lowly targets serving children. The SCT Programme does not recognise child-headed households as independent – a push factor into child labour. However, instead, it forces children to join a foster parent/household even when the foster parent already struggles with their own children. These could be children who lived together by their own means of sourcing income over some time. Although the programme will grant child beneficiaries additional cash should they be in secondary school, more than the additional money is needed to put a child beneficiary in secondary school for all her education needs.
Children will not be listed as beneficiaries for having been into child labour or as mitigation of prevention of child Labour entry.
The government has implemented policies and legislations to regulate the administration of child supply of public services. These pertain to child Labour, child protection, education, health, and youth. That said, the Ministry of Labour does not have its own legislation on Child Labour. At the same time, those of the Ministry of Gender Community Development and Social Welfare are all-encompassing – touching on all child development sectors.
Challenges and Failures of the State
Despite the National Child Labour Mainstreaming Programme recognising government Ministries, Departments and Agencies (MDAs) of relevance, cooperation among these institutions could be much higher. Cases of child labour rarely involve Rarely other institutions with a share of functional obligations. Key in this regard would be the Ministries of Gender CDSW, Ministry of Labour, Ministry of Education, Ministry of Health, Malawi Police Services, Judiciary, Ministry of Justice, Ministry of Youth and Sports, Human Rights Commission, etc.
Conflicting Legislation and Prescription of Institutional Mandates:
Malawi has a Child Care Protection and Justice Act (CCPJA) of 2010, transformed from a Children and Young Persons Act (CYPA) of 1969. The CCPJA embraces the fundamental principles of child rights, which inherently domesticate the UNCRC, the AU ACERWC, and the UNCEDAW. However, problems of child labour are compounded by the independence of the various legislations and policies that touch on children as they sit with various Ministries. The Ministry of Labour does not have a child labour act. Its child labour policy is said to be under development, although Employment Act partially speaks to the employment of children.
The legal regime fails to recognise what may better be described as a Principal Legislation on matters of children in Malawi. So, the specific legislation under any Ministries should be subordinate to the CCPJA. This lacking has enabled the Ministry of Labour to make too little reference to the CCPJA and MoGCDSW, getting the sense they are not obliged to legal compliance under the Act.
The government of Malawi has made attempts to harmonise all child-related laws with the Constitutional definition of a child following the 2017 Amendment of the Constitution. The harmonisation was recommended by the UNCRC Committee review of the State Party Report as also observed and recommended by the African Charter on the Rights and Welfare of the Child.
The government responded positively to a complaint by one of the national child rights organisations in Malawi through the African Centre for Democracy and Human Rights. The complaint was against the state for its constitutional definition of a child as “any persons below the age of 18 years”. In settling the matter outside formal mechanisms at the African Commission on Human and People’s Rights, the state party fulfilled its commitments by repealing section 23(6) of the Constitution of the Republic of Malawi so which defines children as persons under the age of 18 years. The repeal created a demand for a review of all definitions under different legislations on children.
When all was done, a compilation was translated into a proposal to the Ministry of Justice to process further into a single legal Bill on the Harmonisation of Child Related Laws (aligning with the Constitutional Amendment Act on the age definition of a child). Delays in progress from the Ministry of Justice and Constitutional Affairs and MoGCDSW compelled child rights advocates led by a national Coalition of child rights NGOs/CSO to follow up with the Ministry of Justice and Constitutional Affairs, only to be told that the Ministry was not dealing with a Harmonisation Bill because there was nothing of the sort. It implied that every piece of law would have to be looked at independently because, in each piece of legislation, a child is defined in context to serve the interests of each law.
Although that knowledge disappointed some activists, the opinion of the Law Drafts-persons could be understood positively. For example, the employment act allows the employment of children but under stipulated conditions. What is called hazardous work, forced labour is regulated under the labour laws by permitting those less than fourteen years of age to work under professional supervision for a specified work environment but restricts prohibition of children of the same age group from working in any public or private agricultural or industrial or non-industrial undertakings.
The present situation confirms the existence of child labour in Malawi, which involves children as young as five years of age when in essence, those below 14 years of age are not supposed to be employed at all, therefore nullifying child work because it is child labour. Working in productive sectors for children between five years and 14 years, as the case is present, should simply be banned in any way because it is naturally inhibitive to the growth and development of children who risk their quality of life, expose them to harmful products and work which may affect their performance in class because they would be tired, and gotten exposed to sexual, psychological and physical abuse and harassment.
The Ministry of Gender Community Development and Social Welfare has a very good Child Protection and Participation Programme but struggles heavily to implement the programme. Again, the Ministry has an overarching National Child Policy but implemented almost in isolation. It is unknown to what extent other Ministries, Departments, and Agencies (MDA) handling children attempt to contribute to implementing the National Child Policy. The same test question must be examined against the Ministry of Labour on the administration of child labour. The Ministry of Labour does not have specific legislation or regulations on child labour but instead uses the Employment Act, the Labour Act, and the Gazzetted List of Hazardous Work (child-specific). Other government Ministries similarly hold their pieces of legislation though without the intention to create criminality, for example, Education Act or Health Act.
On the contrary, the CCPJA creates both redresses to criminal misconduct as well as administration of services to promote the welfare of children. What may be unsubstantial in the CCPJA is its failure to create statutory penalties hence its dependence on the Penal Code.
Cases of child labour are handled at District Labour Office (DLO) with a concentration of payment settlement compensation at the discretion of the District Labour Officer. Demanding settlement at DLO for child labour should not arise unless in respect of the prevailing legal regime. Criminal offences ought to be charged on the perpetrators of violence and abuse of the rights of the child imposed legally on a child employer. Should state systems be functional, a social support programme is supposed to then cover up for the financial loss and damage so caused by the employer on the child.
Lack of Evident Linkages in the International Child Rights Instruments
International instruments form the basis on which state policies and legislations promoting and protecting the rights and welfare of children are formulated. The explicit basis is seen as compromised either at the foundation of the instruments or at implementation, lacking clear guidance. It must be argued that the United Nations, as a global authority on human rights and the rights of children, establishes the Convention on the Rights of the Child and designates a branch in the name of the United Nations Children’s Education Fund (UNICEF) to oversee the implementation of the Convention. Other protocols have been developed to facilitate the smooth implementation of the UNCRC.
Many other organs of the United Nations have also developed independent Conventions and Protocols, just as is the case also with United Nations International Labour Organisation (UN ILO). The aligned Conventions and Protocols fail to refer to the UNCRC as a fundamental or a principal Convention from which the rest, as shall be found in different organs, must apply. It will be the best thing to do to demonstrate the influence of the UNCRC and that all other related instruments are anchored in the principal Convention. This way, member states, including Malawi, will be compelled to embrace a coordinated approach, therefore, natural harmonisation of legislations and policies anchored in the principal law and policy.
Identification of a principal Convention, therefore, principal legislation on the protection and promotion of the human rights and welfare of a child would need to bud from the four fundamental principles of the rights of the child as enshrined in the UNCRC and the AU ACRWC, which are;
- The Best Interests of the Child, Non-Discrimination,
- First Call for the child, and in the AU ACRWC context, known as the right to life survival and development
- Child Participation/The Evolving Capacities of the Child,
Any rightful documents on the rights of the child, as may be the case with child labour conventions, protocols and any publications, labour laws, and policies in Malawi, might have to apply at any state party of either the UN or the AU, must rise sufficiently to meet legal and policy aspirations of the four fundamental principles. It is without satisfying the test the publication must be condemned as merely rhetoric as it falls outside the spectrums of the instruments. Guidance of the four principles is enriched by realities that child rights being human rights are deepened in the naturalism of human beings; that they are the same globally, that they are inviolable, non-derogatory, are inborn, are interdependent and are of general application. Children have the right to form an opinion and to decide on matters affecting them, in which case they must be granted all opportunities to contribute to decisions that would affect them so long their varying capacities are considered.
It should be time for the United Nations to begin to ask itself if the different agencies of the UN must act fully independently in developing child policies without attaching such instruments in their sub-sectors to the CRC if, indeed, the child is multi-faceted or if the rights of children are interdependent. An active child rights activist in Malawi will have come across practices that see independent UN agencies addressing children fully or partially without direct reference to the CRC, for example, the United Nations Family Planning Agency (UNFPA) by paying its attention to adolescent youth and women, the United Nations UN Women will choose to concentrate on the girl child and all women, the UN ILO will bear a component on child employment and child labour which is issue-based and not person based. All these bear limited sources of authority from the UN CRC and UNICEF; therefore, they are central in coordination and a source of guidance to all others.
An article on Recommendations for Child Labour in Malawi will follow on the upcoming Friday.
 AU ACERWC 2018.