CMNT_TITLE

Forced Labour Convention, 1930 (No. 29) - Malawi (RATIFICATION: 1999)
Protocol of 2014 to the Forced Labour Convention, 1930 - Malawi (RATIFICATION: 2019)

Other comments on C029

Observation

Direct Request

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Previous comments

1. Trafficking in persons

Articles 1(1) and 2(1) of the Convention, and Article 1(2) of the Protocol. Institutional framework. In its previous comments, the Committee noted the creation of the National Coordination Committee Against Trafficking in Persons, under the Trafficking in Persons Act of 2015, as the entity responsible for the formulation of policies, programs and strategies to prevent and suppress trafficking in persons. In this regard, the Committee notes the Government’s indication in its report that this entity has put in place capacity-building for enforcement bodies, implemented awareness-raising activities and monitored the conditions of rescued victims of trafficking in shelters. The Government adds that the Anti-Trafficking Fund (created under section 51 of the Trafficking in Persons Act) is operational with public funding to support prevention measures and investigations of trafficking cases.

The Committee notes with interest the adoption of the country’s first National Plan of Action Against Trafficking in Persons for the period 2017–22, which is based on five priorities: (i) prevention of trafficking in persons; (ii) support and protection of victims; (iii) detection, investigation and prosecution of trafficking offences; (iv) partnership, coordination and sustainable financing; and (v) research, monitoring and evaluation, and reporting. The National Plan sets an institutional framework which includes village development committees, and a results framework with specific outcomes and indicators. The Committee also notes that Technical Working Groups on Trafficking in Persons have been established in eight districts to coordinate anti-trafficking activities at district and local level.

The Committee welcomes the institutional framework established to combat trafficking in persons andrequests the Government to provide information on any assessment conducted concerning the implementation of the different components of the National Plan of Action Against Trafficking in Persons. It also requests the Government to continue to provide information on the activities of the National Coordination Committee Against Trafficking in Persons.

Article 25 of the Convention and Article 1(3) of the Protocol. Enforcement of anti-trafficking legislation. The Committee notes the Government’s indication that labour, police and immigration officers have been designated as enforcement officers of the Trafficking in Persons Act, and that this has helped to strengthen collaboration among these three sets of public officers. It notes that enforcement officers have been continuously trained with support from the United Nations Office on Drugs and Crimes (UNODC). Regarding the application of section 14 of the Trafficking in Persons Act (criminalization of trafficking in persons), the Government indicates that from 2020 to August 2022, a total of 55 cases were recorded and prosecuted. Of these, 36 cases have been completed with convictions secured for 27 cases, one discharged and eight acquittals. 19 cases are still pending in Court. The Committee requests the Government to provide information on the measures taken to strengthen the capacities of labour, police, and immigration officers to detect and investigate cases of internal and transnational trafficking in persons, including information on the difficulties faced in this regard. It also requests the Government to continue to provide information on the number of prosecutions initiated, convictions handed down and penalties imposed under section 14 of the Trafficking in Persons Act.

Article 2 of the Protocol. Prevention. Clauses (a) and (b). Awareness-raising, education, and information. The Committee notes the implementation of a National Communication Strategy on Trafficking in Persons during the period 2020–22, which aimed at increasing the number of reported cases of trafficking, garnering political support, ensuring adequate allocation of resources, and motivating civil society to help traditionally excluded groups. The Strategy also envisaged measures to sensitize business owners and farmers and enhance their knowledge about labour laws. The Committee requests the Government to provide specific information on education and awareness-raising activities aimed at strengthening employers’ knowledge about the relevant labour legislation andat preventing their becoming involved in forced labour practices.

Clause (d). Protecting migrant workers from possible abusive and fraudulent practices. The Committee notes that, in 2016, the Government adopted labour export guidelines for private and employment agencies and migrating individuals aimed at reducing vulnerabilities during the migration process (Republic of Malawi, National Voluntary Review of the Global Compact on Migration). The Committee requests the Government to provide information on the impact of the measures taken to prevent abusive recruitment practices that could lead to situations of forced labour of Malawian workers both internally and abroad.

Article 3 of the Protocol. (i) Identification of victims. The Committee notes the Government’s indication that police officers and labour inspectors are responsible for identifying victims of forced or compulsory labour and their release. It notes that the First Schedule of the Trafficking in Persons Act contains guiding principles for conducting screening interviews for the identification of trafficked persons. Such principles include the consent of the presumed victim, protection against re-traumatization, and anonymity and confidentiality. The Second Schedule of the Act contains a Trafficked Person Screening and Identification Form with questions related to the way the presumed victim entered the situation of trafficking and to the form of exploitation. According to that schedule, a trafficked person can only be conclusively identified as such if the distinct elements of the crime of trafficking have been detected.

The Committee further notes that according to the information of UNODC, in 2022, the Malawian Police Service identified and rescued over 90 victims of trafficking in persons in the Dzaleka Refugee Camp. Most of the victims were men from Ethiopia between 18 and 30 years of age who were subject to forced labour in farms or inside the camps; as well as girls and women between 12 and 24 years of age from Ethiopia, Burundi, and the Democratic Republic of Congo, who were sexually exploited or were to be transported for the purpose of exploitation to other countries in Southern Africa (UNODC, Press Release, May 2022). The Committee requests the Government to continue to take measures to ensure the proper identification of victims of trafficking in persons, for both sexual and labour purposes, and to provide information on the results achieved.

(ii) Protection and rehabilitation. The Committee notes that in accordance with section 43 of the Trafficking in Persons Act, social welfare officers have been appointed as protection officers tasked with ensuring that victims of trafficking in persons who are placed in shelters are well protected and provided with social and psychological support services. It also notes that, in 2019, the National Coordinating Committee issued the Standard Operating Procedures (SOPs) For Identification and Assistance To Victims of Trafficking in Persons and National Referral Mechanisms In Malawi (SOPs and NRM). The SOPs and NRM have the purpose to assist law enforcement bodies to respond and conduct professional investigations that strive towards immediate and appropriate psychological and legal assistance to the victims and their families, and increase the efficiency of all stakeholders to protect victims of trafficking. The Government indicates that there are four shelters for victims of trafficking, where they can receive social and psychological support, as well as vocational training as part of their rehabilitation. The Committee requests the Government to continue to provide information on the measures taken for the protection, recovery, and rehabilitation of victims of trafficking in persons, including those who were rescued in situation of transit to other countries as well as on the measures taken to facilitate the voluntary repatriation of victims of trafficking.

Article 4 of the Protocol. Access to appropriate and effective remedies for victims, such as compensation. The Committee notes the Government’s indication that almost all cases of forced labour in Malawi take place away from one’s home area and are tried under section 40 of the Trafficking in Persons Act. According to this provision, a trafficked person, irrespective of his/her immigration status, has the right to institute civil proceedings against any person including a public officer in respect of an offence under the Act, or to seek compensation, restitution, and recovery in damages from any person or from the proceeds of disposal of assets of any person connected with the offence. The Committee requests the Government to provide information on the number of civil proceedings that have been initiated by victims of trafficking in persons under section 40 of the Trafficking in Persons Act, indicating in how many cases the victims have received remedies or any form of compensation from the perpetrator or the State.

Article 5 of the Protocol. International cooperation. The Government mentions among the measures of cooperation to combat trafficking in persons the establishment of Joint Permanent Commissions of Cooperation (JPCCs), the Annual Migration Dialogue for Southern Africa (MIDSA) and Bilateral Cross Border Cooperation with the neighbouring countries of Mozambique, Tanzania and Zambia. The Committee requests the Government to provide information on the measures taken within the framework of the Bilateral Cross Border Cooperation Agreements with Mozambique, Tanzania and Zambia to prevent trafficking in persons in Southern Africa and to strengthen the protection of victims of transnational trafficking, including refugees.

2 . Exceptions to forced labour

Article 2(2)(c) of the Convention. Work exacted as a consequence of a conviction in a court of law. The Committee notes the Government’s indication that the review process of the Prisons Act has not yet been finalized, and that a copy of the Act will be furnished once it has been passed by Parliament. The Committee recalls that, pursuant to section 75 of the Prisons Act (chapter 9:02), every prisoner under sentence of imprisonment may be kept to labour within or without the precincts of any prison in any part of Malawi and in any employment that may be approved by the Minister, and that work of prisoners for private persons/entities is not excluded. The Committee requests the Government to indicate if, in practice, prisoners undertake work for private entities and, if so, to explain the modalities of such labour. It also requests the Government to provide information on the progress made with respect to the review of the Prisons Act.

3. Article 2(2)(e). Minor communal services. For a number of years, the Committee has requested the Government to provide information on provisions or regulations addressing minor communal services, and to indicate whether individuals refusing to participate in communal services are liable to penalties. The Committee notes the Government’s indication that there are no regulations yet in place for minor communal services and that there have been no complaints related to this issue.