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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Malawi (RATIFICATION: 1965)

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Observation

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Article 1(1)(b) of the Convention. Discrimination based on additional grounds. HIV status. The Committee notes the Government’s statement that it continues to encourage Ministries, Departments and Agencies to commit 2 per cent of their annual budgets to implement activities in awareness and management of HIV and AIDS issues and that these sums have mainly been used to support the nutritional needs of the concerned persons. The Committee also notes the adoption of the National Male Engagement Strategy on Gender Equality, Gender-based Violence, HIV and Sexual and Reproductive Health Rights (2023–30). The Committee asks the Government to: (i) continue its efforts to raise awareness about the HIV and AIDS (Prevention and Management) Act of 2018 and to provide information in this regard; and (ii) provide information on the activities directed at addressing discrimination and promoting equality of opportunity and treatment in employment and occupation irrespective of real or perceived HIV/AIDS status that are funded by Ministries, Departments and Agencies with the 2 per cent of their annual budgets. The Committee also encourages the Government to develop a system to collect disaggregated information on the cases addressed by the labour inspectors and the courts on discrimination on all the grounds prohibited by the legislation, and in particular on the ground of real or perceived HIV/AIDS status and recalls that the Government can avail itself of the technical assistance of the ILO in this regard.

Article 2. National equality policy. Promoting equality and inclusiveness in the public service. The Committee notes that the Public Service Act (PSA) and the Malawi Public Service Regulations (MPSR) are still under review. Regarding the efforts to promote equality of opportunity and treatment under the strategy on equality and diversity in the Public Service Management Policy, the Committee welcomes the examples given by the Government to demonstrate its determination to promote women in high positions as well as the increase of the representation of women in the National Assembly and in ministerial positions, but notes the low representation of women in decision-making positions in the civil service, with women occupying 33 per cent of the positions at the head of public service level. The Government states that it has developed guidelines to guide stakeholders in gender mainstreaming, including enhancement of equality of treatment in employment. Recalling that section 11 of the Gender Equality Act sets a 60/40 ratio in recruitment (which provides that an appointing or recruiting authority in the public service shall appoint no less than 40 per cent and no more than 60 per cent of either sex in any department) but that exceptions to this rule are foreseen (in Section 11(2)), the Committee notes the Government’s declared commitment to address the disadvantaged position of women which will necessitate the review of the exceptions. In this regard, the Committee notes the concerns expressed by the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), in its recent concluding observations, about: (1) the fact that the 60/40 ratio has not been met and that this system only applies to the public service and tertiary education sector, but not to political participation, procurement or the private sector; (2) the limited capacity of the Ministry of Gender, Community Development and Social Welfare to effectively coordinate gender mainstreaming across all government departments; (3) the unsustainability of policies, programmes and activities aimed at the elimination of discrimination against women and the advancement of women due to the high level of dependency on external funding; and (4) the inadequate allocation of resources to undertake gender mainstreaming and achieve substantive results (CEDAW/C/MWI/CO/8, 30 October 2023, paragraphs 13 and 17). In view of the above, the Committee asks the Government to provide information on: (i) the results of the review of the Public Service Act and the Malawi Public Service Regulations in so far as the application of the principles of the Convention is concerned; (ii) the measures taken to promote equality of opportunity and treatment in the public sector under the strategy on equality and diversity in the Public Service Management Policy and the results achieved, including as regards the implementation of the 60/40 ratio set out in the Gender Equality Act; (iii) any step undertaken to review the exceptions granted under section 11(2) of this Act; and (iv) the concrete measures taken within the framework of theNational Male Engagement Strategy on Gender Equality, Gender-based Violence, HIV and Sexual and Reproductive Health Rights (2023–30) and the results achieved.

Promoting gender equality. National Gender Policy and Gender Equality Act. The Committee notes the Government’s indication that the consultation processes to evaluate the implementation of the National Gender Policy, the Gender Equality Act and other relevant legislation has started, while a review of these texts is underway to modernize them. In this regard, the Committee notes that the CEDAW, while welcoming the process initiated to amend the Gender Equality Act to take it more effective in promoting and protecting women’s rights, noted with concern the lack of an assessment of the Gender Equality Act Implementation and Monitoring Plan (2016-2020). It also noted the adoption of the National Job Creation Strategy in 2022, which prioritizes women and persons with disabilities and envisages financial schemes and capacity-building programmes to redress inequalities in the labour market, but remained concerned about: (1) the high unemployment rate among women, especially women with disabilities, and women’s limited access to the formal labour market; (2) women’s disproportionate burden of household and childcare responsibilities; and (3) the persistent gender pay gap. The CEDAW recommended the development and implementation of a comprehensive strategy, including awareness-raising and education campaigns, targeting local communities and religious leaders, teachers, girls and boys, and women and men to eliminate discriminatory stereotypes regarding the roles and responsibilities of women and men in the family and in society (CEDAW/C/MWI/CO/8, paragraphs 13, 20 and 33). The Committee also notes that the National Level Gender Audit Report carried out for the Employers’ Consultative Association of Malawi (ECAM) in May 2023 underlined that most of the national strategies and programmes have come to the end of the period they were intended to cover and that there is a need to review the current situation, evaluate the impact of past policies and programmes, and plan for the next 3-5 years. This audit found that: (1) women´s participation in the labour force is lower than men, with the number of women in managerial and decision-making positions in both the public and private sectors lagging even further behind; (2) their unemployment rate is higher than men, they are more likely to be self-employed, in precarious employment and in the informal sector; (3) they earn less than their male counterparts due to vertical gender segregation and pay discrimination; and (4) they are also time-poor as they are responsible for the majority of unpaid care work and domestic responsibilities. It called for the creation of a specific task force on gender issues with a coordinated action plan which would facilitate more effective communication and collaboration among all stakeholders (pages 7, 21 and 27). The Committee encourages the Government to evaluate the implementation of the National Gender Equality Policy and other relevant policies and programmes to date with a view to identifying the progress made, the obstacles encountered, and the adjustments required to advance further on the promotion of gender equality in employment and occupation. The Committee also asks the Government to continue providing information on: (i) awareness-raising campaigns conducted on the principles of the Convention and the provisions of the Gender Equality Act; and (ii) the measures aimed at promoting the reconciliation of work and family responsibilities, including measures designed to promote a fairer distribution of family responsibilities between men and women.

Promoting equal access to education and vocational training for girls and boys and for women and men. Affirmative action. The Committee notes the Government reiterated indications that it is taking concrete steps to promote girls’ enrolment, attendance and retention in school and to facilitate their return when they drop-out. It also encourages girls to acquire skills that will allow them access to jobs traditionally occupied by boys. The Technical, Entrepreneurial and Vocational Education and Training Authority (TEVETA) provides scholarships and bursaries to this effect. The Committee notes that the period covered by the National Girls’ Education Strategy (NGES), attached to the Government’s report, is coming to an end. While noting the reduction of the gender gap in access to secondary education, it also notes the concerns expressed by the CEDAW regarding the remaining high dropout rates among young women and girls owing to child marriage and early pregnancy, even after readmission, and the fact that young women and girls are not allowed to remain in school during pregnancy and may only be readmitted one year after giving birth, as well as the limited access to education for girls with disabilities (CEDAW/C/MWI/CO/8, paragraph 31). In this regard, the Committee underlines that the above-mentioned 2023 Gender Audit for ECAM recommends engaging with men and women to challenge some of the existing stereotypes and redefine norms in society around gender roles, power dynamics and girls in education, and working with primary and secondary educational establishments to highlight the choices available to girls and to foster greater participation in non-traditional subjects (pages 8-9). Finally, the Committee recalls that section 18(1)(c) of the Gender Equality Act – which mentions addressing “the special needs of female students by incorporating life skills, including sex education” in the curricula – risks reinforcing stereotypes regarding girls’ aspirations, preferences and capabilities, and their role and responsibilities in society. It notes the Government’s statement that the review of the Act is under way, including its section 18(1)(c). The Committee requests the Government to provide: (i) information on the review of section 18(1)(c) of the Gender Equality Act and a copy of the new provision; (ii) examples of concrete measures taken to promote girls’ enrolment, attendance and retention in school and facilitate their return when they drop-out (including measures adopted under section 16 of the Gender Equality Act), as well as measures directed at promoting girls’ and women’s access to a wide range of non-traditional educational paths; and (iii) statistical information on the number of students enrolled in general education and TEVET (disaggregated by sex and subjects), as well as on the number of girls reintegrated in an education cursus after dropping-out of school.

Articles 2 and 3. Equality of opportunity and treatment irrespective of social origin. Rural workers. Referring to the application of the Land Act and the Customary Land Act, the Government reiterates the information provided in its previous report that Customary Land Committees, which are responsible for decision on land management, as well as Land Tribunals at Traditional Authority level, District level and National level include both women and men among their members with a view to preventing and tackling discrimination in land matters. It does not provide, however, any information on complaints filed with competent authorities on the ground of discrimination and their outcomes. The Committee notes the Government’s statement that a number of trainings, based on needs assessments, are offered in rural areas. It also notes that the CEDAW, observing the persistent gender pay gap and lower productivity of women in agriculture, expressed concerns regarding rural women’s and girls’ limited access to justice, education, land ownership, labour-saving technologies, markets, employment, and services to reduce their disproportionate burden of unpaid domestic, care and community work, as well as the lack of support for women to establish cooperatives. The CEDAW recommended to support entrepreneurship among rural women (CEDAW/C/MWI/CO/8, paragraphs 33(c), 39 and 40(b)). Finally, the Committee notes that the Office undertook a mission to Malawi from 8 to 12 May 2023 to conduct consultations with constituents to develop an action plan for intervention in the tea sector in Malawi within the framework of the multi-countries project funded by Norway on “Promoting workers’ rights and gender equality”. The mission’s attention was drawn to the facts that: (1) the abuse of short-term contract was among the root causes of violence and harassment; and (2) smallholder farmers, men, and women, were exposed to violence and harassment, including physical and financial, both at work and at home, and faced a dire situation in the dry season. The Committee asks the Government to provide information on: (i) the number of complaints for violations of the Land Act and the Customary Land Act filed with competent authorities on the ground of discrimination, and their outcome, as well as any appeal lodged against these decisions; (ii) any initiative taken to set up alternative dispute resolution mechanism in land matters; and (iii) any measures taken to carry independent research on the causes of gender-based violence and harassment in agriculture, including work arrangements and non-standard forms of work.

Enforcement. The Committee notes the Government’s indication that the Malawi Human Rights Commission (MHRC) continues providing training and capacity-building programmes to both private and public institutions. Since the beginning of the programme, a total of 58 law enforcement officers, 15 magistrates and 43 police staff benefited from the training. The Government does not, however, provide any information on cases of discrimination in employment and occupation addressed by the labour inspection services, the MHRC or the courts. In this regard, the Committee notes the concerns of the CEDAW regarding the lack of sufficient financial, technical and human resources of the MHRC to discharge its mandate effectively and independently, and the lack of labour inspectors to conduct regular inspections, enforce labour law standards and ensure that workplaces have policies to address sexual harassment. The Committee further notes that the 2023 Gender Audit for ECAM indicates that “one key aspect of the legal and regulatory framework that needs to be addressed is implementation and enforcement, which is where progress is less uniform, often due to a lack of resources”. According to a survey carried out for the gender audit, only 21 per cent of persons experiencing discrimination reported the case to human resources, with 8 percent reporting the incident outside the company. The corresponding figures were 17 and 13 per cent in the case of harassment. At least 40 per cent of women experiencing discrimination or harassment took no action or left their job. Only a quarter of complaints were investigated, while over 20 per cent of incidents reported were not acted upon. The audit concluded that “the implied attrition rates from the number of incidents occurring to achieving a satisfying outcome are alarming” (pages 6–7). Finally, the Committee welcomes the “Statement of commitment towards zero-tolerance against violence and harassment at work” adopted by chief executive officers and board members of ECAM on 20 July 2023 which commits, inter alia, to align their policies with all applicable national laws and policies and international obligations. In view of the above, the Committee encourages once again the Government to take action to facilitate access of victims of discrimination, including women, to enforcement mechanisms and asks it to continue providing information on: (i) measures adopted, including training and capacity-building, to enhance the capacity of enforcement officials and magistrates to identity and address violations of the principle of equality of opportunity and treatment in employment and occupation in respect of all grounds of discrimination enumerated in Article 1(1)(a) of the Convention; and (ii) cases of discrimination in employment and occupation addressed by labour inspection services, the Malawi Human Rights Commission or the courts, and their outcome.