On 22nd October 2007, the African Commission on Human and People’s Rights marked twenty years of promotion and protection of human rights in the continent. Although Malawi ratified the charter in 1989 and it has eight outstanding state party reports to write to the African Commission, and it is yet to submit its initial report, writes Levi Mvula.
The adoption of the first post – colonial constitution in 1995 brought jubilation to many Malawians. This was so because the new constitution established a democratic system of government and included a bill of rights. This was in contrast with the 1966 Constitution, which, despite stating that Malawi would recognize the rights protected by the Universal Declaration of Human Rights, failed to include a comprehensive bill of rights. In this regard, it was difficult to understand how the state was going to achieve the fulfillment and protection of rights. Indeed for the first 23 years of its independence, Malawi did not sign up to any international human rights instruments and in practice, the government and its agents were responsible for widespread human rights violations against political or perceived opponents. However, the major turning point in Malawian constitutional history occurred in 1994, when the 1966 Constitution was replaced by a Constitution designed to create a more liberal political order. After a rigorous process of consultations, the constitution entered into force in May 1995. The new constitution, among other things included a bill of rights in chapter four that guarantees a wide range of justifiable human rights and also provided a framework in which the government can fully undertake its international obligations.
Despite the ‘gross violations of human rights occurring in the country’ during the one party state era, Malawi ratified most of the major relevant International and African human rights treaties. Such treaties include the African Charter on Human and People’s Rights, ratified on 17 November 1989, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both ratified on 22nd December 1993. Malawi is also a state party to the Convention on the Elimination of all forms of Discrimination against Women which it ratified on 22nd March 1987 and the Convention on the Rights of the Child, ratified on 2nd January 1991. Ratification or accession to these human rights instruments comes with certain obligations on the part of the ratifying state. Such obligations include giving effect to the provisions of the treaties at a national level through the process of domestication. One of the most important duties of state parties under international human rights law to these instruments is the submission of periodic reports to the treaty monitoring bodies on the steps they are undertaking to give effect to the rights contained in the treaties to their nationals.
Malawi has largely failed to discharge its reporting treaty obligations under the international treaties it is party to. To date, Malawi has only submitted some of the reports due under the CEDAW and CRC and none under the various other treaties the country signed without coercion including the reports to the African Commission on Human and People’s Rights. In June 2004, the government made some efforts to redress the situation by submitting a report which combined the second, third, fourth and fifth periodic reports on the Convention on the Elimination of Discrimination against Women. The shadow report to this particular state report was prepared by Centre for Human Rights and Rehabilitation (CHRR), Women Lawyers in Southern Africa (WLSA) and National Association for Business Women (NABW). The reports were considered by the committee on Elimination of all forms of Discrimination against Women during its 35th session from 15th May to 2nd June 2006. As required by the procedures of the committees, the committee of Elimination on all forms of Discrimination against Women made several recommendations such as appealing to the Malawi government to set a clear time frame for the adoption of the revised Citizenship Act, Immigration Act and the Wills and Inheritance Act and for the New Marriage, Divorce and Family Relations Bill, designed to eliminate discrimination against women. On the CRC state party report, the committee had recommended, among other things, that Malawi harmonize the definition of the age of a child and requested it to consider raising the age of the child up from 16 to 18. Much time has passed since then but there is still no sign on the ground that the government is undertaking steps to implement the recommendations that were made by the committee.
Recently, it was revealed that the Committee on the Elimination of Racial Discrimination (CERD) which is responsible for the convention on elimination of racial discrimination announced that it was going to consider Malawi’s country situation in August 2007 in the absence of the state party report from the Malawi Government. The committee reached that decision after Malawi ignored several reminders to comply with its reporting obligations. It is embarrassing to learn that the committee has since decided to give Malawi more time until next June 2008 to submit the report. A recent enquiry on the responsible ministry, the Ministry of Justice and Constitutional Affairs, indicated that the process of preparation of the report had not started as of first week of October 2007 and one wonders if the exercise will be carried out at all.
On 22nd October 2007, the African Commission on Human and People’s Rights marked twenty years of promotion and protection of human rights in the continent. Although Malawi ratified the charter in 1989 and it has eight outstanding state party reports to write to the African Commission, and it is yet to submit its initial report. Sources from the African Commission on Human and People’s Rights indicate that Malawi is the one of the three states in the SADC region yet to report and one of the three will be presenting its maiden report this November 2007 when the African Commission hosts its 42nd session which will sit in the Democratic Republic of Congo. Michelle Hansungule, a Human rights professor at the University of Pretoria labeled states who are never bothered with treaty obligations such as submission of state reports like Malawi as permanent defaulters. Surprisingly, states that are being accused of massive human rights violations like Zimbabwe take the reporting obligation under the African Charter very seriously by submitting its state party reports. It is important to note that all neighbouring countries have been submitting their state party reports. Tanzania and Mozambique have been reporting to the African Commission though they still have outstanding reports whilst Zambia and Zimbabwe are amongst those states that submitted all their reports and no outstanding reports. The African Commission continues to urge member states of the African Union that have not yet submitted their reports like Malawi to submit their initial and periodic reports. Of great significance to Malawi is that we can combine all the overdue reports (eight) into a single report for submission to the African Commission.
Efforts to understand the cause of this non compliance with reporting obligations under various international instruments reveals very troubling excuses. According to the Malawi Human Rights Commission, the government has attributed its current failure to fulfill its treaty reporting obligations to the lack of human and material resources to fund the process of preparing the reports and subsequent submission of the reports. The issue of lack of human resource as one of the reasons for non – compliance with the treaty monitoring bodies of various treaties is difficult to understand. This is because there are several well qualified men and women in the Ministry of Justice and Constitutional Affairs who have attended refresher courses on state party reporting and other important trainings. Besides, there are several men and women in the civil society and the academia that have the capacity to assist in the process of writing the state party report. After all, the state party report on CEDAW was done by various experts from the academia, civil society and government. It is important to note that the requirement is not necessarily that the Ministry should write the report on its own particularly where there is no enough capacity but that it should take a leading role in the report writing process.
On the other hand, it is widely rumoured that the government has finalized a state party report on the convention of the rights of the child. If this rumour is true, then the government through the ministry responsible should be applauded. I also hope that this will motivate us as a country to clear all the outstanding reports under various treaties. An appeal though to those responsible is that issues of reporting ought not to be secretive but rather open and it is my hope that the state will offer the civil society copies for them to shadow the report as encouraged by the human rights norms.
In conclusion, it is worthwhile to emphasize that submission of state party reports is very important in as far as promotion and protection of human rights is concerned. By ratifying the treaties, the country accepted to comply with the treaty obligations and it is frustrating that we are failing to do as is expected of us. Reporting needs to be taken seriously and there is need for political will since it is only the submission of these reports that can highlight the implementation of various human rights provisions as is required by these international human rights treaties since the international human rights law gives states near to total discretion to implement internationally recognized human rights within their own countries. All Malawians have noted that the situation of human rights in Malawi has tremendously improved since Malawians voted for politics of pluralism. Today, Malawians are enjoying rights that could have landed them in conflict with the law some fifteen years ago. The success stories of the human rights regime in Malawi need to be shared with other states after Malawians had lived 31 years under a regime that never recognized human rights and violated them. Reporting obligations also grant the independent experts on human rights the opportunity to offer recommendations, which may sometimes be referred to as General Comments or views on how states can ensure full realization of certain rights depending on the type of the treaty. This may well prove extremely beneficial to Malawi. It is thus wholly unheard of for Malawi to continue disregarding its reporting obligations, obligations it assumed voluntarily, as this paints an extremely depressing image of the government’s commitment to the promotion, protection and fulfillment of various human rights. The Attorney General as the chief government advisor can the nation service to remind the relevant authorities on the significance of the reporting obligations and assist where gaps exists.
* Levi Mvula is a human rights activist in Malawi working for the Centre for Human Rights and Rehabilitation (CHRR), a non-governmental organisation working in the area of human rights and governance in Malawi.
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