Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 3 of the Convention and Part III of the report form. Worst forms of child labour and court decisions. Clause (a). All forms of slavery or practices similar to slavery. Sale and trafficking of children. In its previous comments, the Committee noted that in its concluding observations on the initial report of Malawi in April 2002 (CRC/C/15/Add.174, paragraphs 63 and 64), the Committee on the Rights of the Child expressed concern at information on alleged instances of trafficking in children. The Committee had further noted the Government’s indication that it is currently reviewing national laws relating to human trafficking.

The Committee notes that, in criminal case No. 347/05 of the resident magistrate court sitting at Mchinji court, dated 20 August 2005, the accused, a national from Zambia, had employed ten Malawian children to work on his farm in Zambia. In order to punish the act of smuggling these children into Zambia, the resident magistrate found the accused guilty of violating section 21 of the Employment Act, which prohibits any person from engaging children under 14 years, and section 66, which provides for the prohibition of engaging young persons under 18 in an occupation or activity harmful to their health, safety, education and morals. The Committee notes that, in his judgement, the resident magistrate states that the Parliament needs to expressly enact a law addressing the illegal trafficking of young persons, with the aim of preventing and combating trafficking, and to protect the rights, of young persons. In this regards, the Committee notes the Government’s information that the Malawi Law Commission initiated a process of consultations for the development of a law on human trafficking. The Committee expresses the hope that the new law on human trafficking will ensure the protection of children under 18 years of age from sale and trafficking for economic and sexual exploitation. It requests the Government to provide information on the progress made in the elaboration of the law on human trafficking and to provide a copy thereof as soon as it is adopted.

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 had 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 appeared to exist in Malawi, but that national legislation did not appear to prohibit this worst form of child labour. The Committee had also noted the Government’s indication that the labour laws were being reviewed and that this issue would be taken into consideration by all stakeholders and that the Malawi Censorship Board was doing its best on this matter.

The Committee notes the Government’s information that it will endeavour to include a prohibition against the use, procuring or offering of a child for prostitution, production of pornography or pornographic performances in the current review of labour laws, which is going through a final round of examination before being submitted to the Ministry of Justice. The Government also indicates that the Malawi Law Commission has also elaborated a child protection bill, in which some of the concerns of the Committee are addressed. In this regard, the Committee 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 therefore urges the Government to take the necessary measures to adopt the national legislation, including the new child protection bill amendments to the labour laws and, to ensure the prohibition of the use, procuring or offering of persons under 18 years of age for prostitution, for the production of pornography or for pornographic performances, as a matter of urgency. It requests the Government to include sufficiently effective and dissuasive sanctions in this legislation. The Committee requests the Government to provide information, in its next report, on the progress made in this regard.

Article 4, paragraph 1. Determination of types of hazardous work. In its previous comments, the Committee had noted that section 22(2) of the Employment Act provides that the Minister may, in consultation with relevant organizations of employers and employees, specify, by notice published in the Gazette, occupations or activities which, in the Minister’s opinion, are likely to be harmful to the health, safety, education, morals or development of persons between the ages of 14 and 18 years. The Committee had noted the Government’s indication that a draft list of hazardous types of employment or work had been established and was ready to be discussed with stakeholders. The Committee reminded the Government that, by virtue of Article 4, paragraph 1, of the Convention, the competent authority is obliged to determine the types of hazardous work, after consultation with the organizations of employers and workers concerned. The Committee notes the Government’s information, provided under Convention No. 138, that several consultative workshops were held and that the final draft list of types of hazardous work when produced will be submitted to the Ministry of Justice for further action. The Committee requests the Government to take immediate measures to ensure that the draft list of types of hazardous employment is adopted in the near future. It requests the Government to provide a copy of this list as soon as it is adopted.

Article 5. Monitoring mechanisms. Child labour monitoring system. The Committee had previously noted the establishment of the National Steering Committee (NSC) on child labour, the National Task Force on the Elimination of Child Labour and the Child Labour Monitoring System (CLMS). It had particularly noted that, at the national level, the Child Labour Unit in the Ministry of Labour and Vocational Training (IAs) provided the technical back up to the monitoring. The Unit facilitated the setting up of the monitoring system, mobilized the actors and stakeholders, helped the District Child Labour Committees (DCLCs) identify supervisors and provided the monitors and supervisors with continuous training and logistical support. At the same level, the main tasks of the NSC and the Technical Working Group were to advise on the necessary steps to be undertaken after the analysis of trends of child labour has taken place and on policy issues to be designed and developed in regard to child labour. At the district level, the child labour monitoring primarily targeted four impact districts, namely Kasungu, Mzimba and Mchinji, and the communities of project implementation. The DCLCs, Area Child Labour Committees (traditional authority level) and the Community Child Labour Committees form a hub of alliance-building and implementation structure. All key government departments and stakeholders at district, area and community levels are members of the Child Labour Committees which have already been sensitized on the CLMS.

The Committee notes the Government’s information that the CLMS was initiated and implemented under the auspices of the ILO/IPEC project entitled “Prevention, withdrawal and rehabilitation of children engaged in hazardous work in the commercial agricultural sector in Africa (COMAGRI) – Commercial Agriculture”, and that the Ministry of Labour had spearheaded the pilot phase. However, the CLMS was not sustainable beyond the project’s life. The Government indicates that the new country programme has not attempted to pursue the implementation of the CLMS because the system was too ambitious and unmanageable. The Committee notes the Government’s information that it intends to ask for ILO support and assistance to review the existing system in order to render it more manageable or to develop a new system that would be more practical and sustainable. The Committee strongly encourages the Government to take measures to develop and improve the CLMS system in order to monitor the implementation of the provisions giving effect to the Convention and combat the worst forms of child labour. It requests the Government to provide information on progress made in this regard.

Article 7, paragraph 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. 1 Trafficking in children. The Committee had previously noted that, in its initial report to the Committee on the Rights of the Child in June 2002 (CRC/C/8/Add.43, paragraph 371), the Government had indicated that there was no specific policy or programme regarding the sale, trafficking and abduction of children in Malawi and that it had not established any centre for the rehabilitation of the victims of trafficking.

The Committee notes the Government’s statement that it has embarked on a comprehensive campaign against child abuse, including child trafficking. In collaboration with UNICEF, the Government launched, in August 2007, a one‑year Campaign Against Child Abuse which focuses on eight thematic areas, one of which is child trafficking. With the implementation of this campaign, DCLCs have been sensitized to the subject of child trafficking for labour exploitation in 11 districts and plans are under way to sensitize local communities, particularly border districts. The Committee notes the Government’s information that, although it has not yet established rehabilitation centres for trafficked children, the Ministry of Women and Child Development has built three regional transit centres which rehabilitate local victims of child trafficking in Malawi. Furthermore, the Ministry of Women and Child Development is carrying out a baseline survey on child trafficking, with assistance from ILO/IPEC. According to the Government’s information, the results of the study will be used to advance the anti-child trafficking strategies in the country. In this regard, and particularly with regard to the rehabilitation of child victims of trafficking, the Committee draws the Government’s attention to the report of 9 January 2008 submitted by the Special Rapporteur on the sale of children, child prostitution and child pornography to the Human Rights Council of the United Nations General Assembly, which offers guidelines for assistance and rehabilitation programmes and shelters, including medical care, psychological assistance, education and recreational activities (A/HRC/7/8, paragraphs 39–42). The Committee requests the Government to continue to provide information on the Campaign Against Child Abuse. It also requests the Government to provide information on the number of child victims of trafficking who were rehabilitated through the regional transit centres. Finally, it requests the Government to supply information on the results of the baseline survey on child trafficking, once it is finalized.

2. Children engaged in hazardous work in commercial agriculture, especially tobacco estates. Following its previous comments, the Committee notes that, according to the summary outline for the ILO/IPEC Action Programme of 2007, entitled “Mzimba Project on Elimination of Child Labour”, there are 734,845 child labourers working in the agricultural sector in Malawi, out of which 288,341 are working in hazardous occupations. The Committee notes that the programme intends to prevent 450 children (250 girls and 200 boys) and to withdraw 350 children (200 boys and 150 girls) aged 6–17 from the worst forms of child labour in the agricultural sector. The same programme also intends to reintegrate 250 children into formal or non-formal education, to rehabilitate 100 children through vocational training, and to reintegrate or repatriate 50 children into their families. The Committee further notes that the ILO/IPEC Action Programme entitled “TANARD Programme on Elimination of Child Labour in Mchinji and Kasungu” of January 2007 aims to withdraw children from the worst forms of child labour and rehabilitate them through formal and non-formal education arrangements, as well as vocational training for young persons aged 14–18. By the end of the project, 1,000 child labourers (450 girls and 550 boys) involved in work in various agricultural enterprises, especially tobacco estates, will have been withdrawn. The programme also aims to prevent 1,500 children (750 girls and 750 boys) from being engaged in such labour through awareness strategies and community sensitization. The Committee requests the Government to provide statistical data on the number of children who were in practice prevented from being engaged in or who were withdrawn from hazardous work in the agricultural sector and in tobacco plantations following the implementation of the programmes.

Clause (d). Identifying children at special risk. 1. Children orphaned by HIV/AIDS. The Committee had previously noted that, according to the United Nations Joint Programme on HIV/AIDS (UNAIDS), the problem of HIV/AIDS is increasing in Malawi. In this respect, the Committee had noted that, in its concluding observations on the initial report of Malawi in April 2002 (CRC/C/15/Add.174, paragraph 47), the Committee on the Rights of the Child indicated that, while noting the existence of the National AIDS Control Programme, the National Task Force on Orphans and the Orphan Care Programme, it remained extremely concerned at the high incidence and increasing prevalence of HIV/AIDS amongst adults and children and the resulting high and increasing number of children orphaned by HIV/AIDS. The Committee had noted the Government’s indication that a National Plan of Action for Orphans and Other Vulnerable Children 2005–09 (NPA for OVC), a Technical Support and Advisory Unit in the Ministry of Gender, Child Welfare and Community Services and a Childhood Development Policy were established. However, it had noted that, according to the NPA for OVC, around 500,000 children were orphans due to HIV/AIDS in 2004, and more than 1 million children were orphans in Malawi in 2005. It had also noted the Strategic Objective No. 3 of the NPA for OVC is “to protect the most vulnerable children through improved policy and legislation, leadership, efficient coordination at all levels”.

The Committee notes that, according to the technical progress report of March 2007 for the ILO/IPEC project entitled “Country Programme to Combat Child Labour in Malawi”, two country projects were launched on 26 February 2007: the ILO HIV/AIDS Workplace Education Programme and the HIV/AIDS in Transport Sector. The projects intend to add value to the ILO/IPEC programme and its involvement with tripartite partners by mainstreaming the subject of HIV/AIDS in the child labour programmes and sharing lessons on the impact of HIV/AIDS in Malawi. Recalling that HIV/AIDS has consequences for orphans, for whom there is an increased risk of being engaged in the worst forms of child labour, the Committee requests the Government to provide information on the impact of the NPA for OVC as well as of the ILO/IPEC HIV/AIDS projects towards eliminating the worst forms of child labour, in its next report.

2. Street children. In its previous comments, the Committee had noted that, in its concluding observations on the initial report of Malawi in April 2002 (CRC/C/15/Add.174, paragraph 65), the Committee on the Rights of the Child expressed concern at the increasing number of street children and at the lack of specific policies and programmes to address this situation. The Committee had also noted that, according to the study entitled “Malawi Child Labour Survey”, produced by the Government with the collaboration of ILO/IPEC and published in February 2002, over 400 children live and work in the streets in Malawi. The Government had indicated that four NGOs, namely Chisomo Children’s Club, Tikondane Orphan Acre, Samaritan Trust and Eye of the Child, provide rehabilitation services for street children. The Government had also indicated that it had established a drop-in centre which will provide a 24-hour free helpline for street children and those that are abused. Moreover, the Government had indicated that it is in the process of conducting a countrywide survey to substantiate the numbers of abused children. The Committee notes the Government’s additional information that, with the financial support of UNICEF and in collaboration with NGOs, it has created a child network for street children. The Committee once again requests the Government to provide information on the impact of these measures in protecting street children and providing assistance for their removal as well as their rehabilitation and social integration. It also once again requests the Government to communicate a copy of the countrywide survey on the number of abused children once it has been completed and requests it to provide information on the progress made in this regard.

Clause (e). Special situation of girls. The Committee had previously noted that, according to the Malawi Child Labour Survey, all the child victims of commercial sexual exploitation, including prostitution, are girls. Almost seven out of every ten girls involved in commercial sexual exploitation have lost one of their parents or do not know where they are, and one in every two have lost both parents. The majority of children who are victims of commercial sexual exploitation, namely 65 per cent of cases, do not attend school beyond the second year. The Committee had noted the Government’s indication that it has established a social support centre for sex workers which provides the following services: skills training and development; psychosocial support and counselling; reintegration; income-generating activities; HIV/AIDS treatment; and hotline helpline. It further notes the Government’s information that it is planning to build a reformatory school for girls. The Committee once again requests the Government to provide information on the impact of the measures taken, particularly in terms of statistical data on the number of girls under 18 who are in practice removed from commercial sexual exploitation and who are rehabilitated.