Solicitud directa (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

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, although various penal provisions relate to the offences of abduction and trafficking, these provisions are not comprehensive. It noted a 2005 case where a man (who had smuggled ten Malawian children) was found guilty under the Employment Act of employing persons under the minimum age, and under the age of 18, in harmful activities. The resident magistrate stated the need for Parliament to expressly enact a law addressing the illegal trafficking of young persons. In this regard, the Committee noted the Government’s indication that the Malawi Law Commission had initiated a process of consultations for the development of a law on human trafficking.

The Committee notes the Government’s statement that the process of developing a law on trafficking is still ongoing under the auspices of the Law Commission. The Committee also notes the Government’s statement in its report to the Committee on the Rights of the Child (CRC) of 17 July 2008, that existing laws (and proposed reforms to the Penal Code) are inadequate and that weak immigration rules and procedures have created an environment conducive to trafficking (CRC/C/MWI/2, paragraph 166). The Committee also notes the information in a report on trafficking in persons in Malawi of 14 June 2010, available on the website of the Office of the High Commissioner for Refugees (www.unhcr.org) (Trafficking Report), indicating that, for the second year, the Malawi Law Commission has not completed the drafting of the comprehensive anti-trafficking legislation. The Committee further notes that the CRC, in its concluding observation of 27 March 2009, expressed concern at reports that children have been trafficked abroad and at the fact that perpetrators of trafficking of children are not brought to justice (CRC/C/MWI/CO/2, paragraph 27).

However, the Committee notes that, according to information available at the Office, the Child Care, Protection and Justice Bill was adopted on 28 June 2010. The Trafficking Report indicates that the draft of this Bill contained a definition of child trafficking and imposed a penalty of life imprisonment for convicted traffickers. The Committee expresses the firm hope that the adopted version of the Child Care, Protection and Justice Bill prohibits the sale and trafficking (both internal and cross-border) of all persons under 18 years of age for the purposes of labour and sexual exploitation. The Committee requests the Government to provide of a copy of the Child Care, Protection and Justice Bill. It also requests the Government to provide information on the practical application of the provisions in the Child Care, Protection and Justice Bill related to trafficking, including the number and nature of the contraventions reported, the investigations undertaken, prosecutions, convictions and the penal sanctions imposed. Lastly, it requests the Government to provide information on the progress made towards the adoption of comprehensive anti-trafficking legislation.

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 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 existed in Malawi and that national legislation did not appear to prohibit these worst forms of child labour. However, the Committee noted the Government’s indication that it endeavoured to include such a prohibition in the ongoing review of labour laws, which was going through a final round of examination prior to submission to the Ministry of Justice. The Committee requested the Government to take the necessary measures to adopt this legislation, as a matter of urgency.

The Committee notes the information in the Government’s report that the Employment (Amendment) Bill has yet to be adopted, though it notes the Government’s statement that it will do everything possible to ensure that this Bill is prioritized by Cabinet and Parliament. The Committee also notes the Government’s statement in its report to the CRC of 17 July 2008, that, while there is no data available on the number of children involved in sexual exploitation, including prostitution and pornography, these are recognized problems in the country (CRC/C/MWI/2, paragraph 323). The Government further indicates in this report that prostitution generally is unregulated, to the detriment of women and child sex workers (CRC/C/MWI/2, paragraph 329).

In this regard, the Committee expresses its deep concern at the continued lack of regulation of child commercial sexual exploitation, and 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 urges the Government to take the necessary measures, as a matter of urgency, to ensure the adoption of national legislation prohibiting the use, procuring or offering of both boys and girls under 18 years of age, for the purpose of prostitution, for the production of pornography or for pornographic performances. It requests the Government to include sufficiently effective and dissuasive sanctions in this legislation, and to provide a copy of this legislation, once adopted.

Article 4(1). Determination of types of hazardous work. In its previous comments, the Committee 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 noted the Government’s indication that consultative workshops had been held on this topic, and that a final draft list of types of hazardous work would be submitted to the Ministry of Justice.

The Committee notes the Government’s statement that the draft list has been submitted for final vetting and gazetting, and that this list should be ready in the second half of 2010. The Committee requests the Government to take the necessary measures to ensure that the draft list of types of hazardous employment is adopted in the near future. It also requests the Government to provide a copy of this list once adopted.

Article 5. Monitoring mechanisms. Child labour monitoring system. The Committee previously noted the establishment of the National Steering Committee on Child Labour, the National Task Force on the Elimination of Child Labour and the Child Labour Monitoring System (CLMS). The Committee also noted the Government’s statement that it intended to ask for ILO support and assistance to review the CLMS in order to render it more manageable, practical and sustainable.

The Committee notes the information in the Government’s report that the ILO Country Programme 2005–08 supported the review and streamlining of the CLMS’s data collection form and the development of a database. The Committee also notes the Government’s statement that a design flaw has prevented the system from being functional but that it will engage ILO–IPEC for technical assistance for this problem. The Committee strongly encourages the Government to take measures, in collaboration with ILO–IPEC, to develop and improve the CLMS system in order to monitor the implementation of the provisions giving effect to the Convention. It requests the Government to provide information on progress made in this regard.

Article 7(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 previously noted that the Ministry of Women and Child Development was carrying out a baseline survey on child trafficking, the results of which would be used to advance the anti-child trafficking strategies in the country. The Committee requested information from this baseline survey, once finalized.

The Committee notes the information in the Government’s reply to the list of issues of the CRC of 9 January 2009, that the child trafficking study failed to collect data on how many cases of trafficking were registered in Malawi. The Government also states in this report that the child trafficking study indicated that there is more internal child trafficking than cross-border child trafficking in Malawi (CRC/C/MWI/Q/2/Add.1, paragraph 66). The Committee also notes the information in the Government’s report to the Committee on the Elimination of Discrimination against Women (CEDAW) of 20 October 2008, that the International Organization for Migration (IOM), in collaboration with the Government and NGO partners, is implementing a project in the region to prevent trafficking in persons, to protect victims and provide them with rehabilitative assistance, or with return and reintegration options. The Government further indicates in this report that the Police Service and the Immigration Department has put in place mechanisms for the protection of victims of trafficking, including Child Protection Units which provide support and shelter to victims (CEDAW/C/MWI/6, paragraph 157). The Committee further notes the information in the Trafficking Report that the Government provided law enforcement, immigration, and social services personnel with basic training in identifying victims of trafficking. The Trafficking Report also indicates that an inter-ministerial task force on human trafficking, led by the Ministry of Women and Child Development, began drafting a national plan of action on trafficking which is not yet complete. The Committee encourages the Government to take the necessary measures to ensure that the national plan of action on trafficking includes measures for the prevention of the trafficking of persons under 18, in addition to their removal and rehabilitation.

2. Children engaged in hazardous work in commercial agriculture, particularly tobacco estates. In its previous comments, the Committee noted that, according to the summary outline for the ILO–IPEC Action Programme of 2007, entitled “Mzimba Project on Elimination of Child Labour”, there were 734,845 child labourers working in the agricultural sector in Malawi, out of which 288,341 were working in hazardous occupations. The Committee also noted that ILO–IPEC was implementing several action programmes in the tobacco sector, which sought to withdraw children from hazardous work and reintegrate these children into formal and non-formal educational programmes. The Committee requested information on the impact of these projects.

The Committee notes the Government’s statement that it is still receiving reports from the implementing partners on this topic, and that it will provide this information in its next report. The Committee also notes that the ILO–IPEC final technical progress report for the “Country Programme to Combat Child Labour in Malawi” of January 2009 (ILO–IPEC FTPR) indicates that, through the programme’s support, the Employers’ Association of Malawi produced a child labour guide for members, which was distributed to its members and tobacco farmers in four districts. The ILO–IPEC FTPR also indicates that the Employers’ Consultative Association of Malawi, in collaboration with the Tobacco Association of Malawi, initiated sensitization on child labour issues for tobacco councillors from the Mchinji and Kasungu districts. Furthermore, the Committee notes the information in the ILO–IPEC technical progress report for the project entitled “Project of support to the national action plan to combat child labour in Malawi” of 18 March 2010 that this new project includes work with tobacco and tea companies for the elimination of child labour. Nonetheless, the Committee notes that the CRC, in its concluding observations of 27 March 2009, expressed concern that many children between 15 and 17 are engaged in work that is considered as hazardous, especially in the tobacco and tea estate sector, which continues to be a major source of child labour (CRC/C/MWI/CO/2, paragraph 66). The Committee therefore requests the Government to redouble its efforts to remove children from hazardous work in the tobacco sector, and to provide for their rehabilitation. The Committee requests the Government to provide information on measures taken in this regard, and on the results achieved.

Clause (d). Identifying children at special risk. 1. Children orphaned by HIV/AIDS. The Committee previously noted that, according to the National Plan of Action for Orphans and Other Vulnerable Children 2005–09 (NPA for OVC), around 500,000 children were orphaned due to HIV/AIDS in 2004. It also noted that a strategic objective of the NPA for OVC was “to protect the most vulnerable children through improved policy and legislation, leadership and efficient coordination at all levels” and requested information on the impact of this initiative on the elimination of the worst forms of child labour.

The Committee notes the Government’s statement that it is difficult to measure the impact of the NPA for OVC on child labour, in the absence of specific studies in this regard. The Government indicates that more information may be available following the planned child labour survey in 2010. The Committee also notes the information in the ILO–IPEC FTPR of January 2009, that one of the objectives of the “Country Programme to Combat Child Labour in Malawi” was to strengthen community based safety nets and mechanisms that support HIV/AIDS affected children and OVCs. In this context, in collaboration with UNICEF and the World Food Programme, OVCs withdrawn from child labour received support in Thyolo, Mulanje and Phalombe through school feeding and home rations projects, and targeted families received assistance in the form of business start-up support and the provision of subsidized fertilizers.

The Committee notes the information from UNAIDS that there are approximately 560,000 orphans in Malawi due to HIV/AIDS. The Committee also notes the Government’s indication in its UNGASS country report of 31 March 2010 that only 18.5 per cent of OVCs receive support through governmental initiatives, and that 81.5 per cent of OVCs receive no support at all. The Committee recalls that orphans are at an increased risk of being engaged in the worst forms of child labour and therefore encourages the Government to strengthen its efforts to ensure that children orphaned by HIV/AIDS are prevented from being engaged in the worst forms of child labour. The Committee requests the Government to provide information on the concrete measures taken in this regard.

2. Street children. In its previous comments, the Committee noted that the CRC, in its concluding observations of April 2002 (CRC/C/15/Add.174, paragraph 65), expressed concern at the increasing number of street children and at the lack of specific policies and programmes to address this situation. The Committee also noted information from a 2002 survey that indicated that over 400 children live and work in the streets in Malawi. The Government indicated that it operated a drop-in centre and that it had established a child network for street children, while four NGOs provided them with rehabilitation services.

The Committee notes that the CRC, in its concluding observations of 27 March 2009 reiterated its concern at the increasing number of children living in the streets and at the Government’s lack of specific policies and programmes to address the situation (CRC/C/MWI/CO/2, paragraph 68). Recalling that street children are particularly vulnerable to the worst forms of child labour, the Committee requests the Government to strengthen its efforts to remove these children from the street and provide for their rehabilitation and social reintegration. It requests the Government to provide information on measures taken in this regard.

Clause (e). Special situation of girls. The Committee previously noted that, according to the Malawi child labour survey, all the child victims of commercial sexual exploitation were girls. Half of these girls had lost both of their parents, while 65 per cent of them did not attend school past the second year. The Committee requested information on the number of girls removed from sexual exploitation. The Committee notes an absence of information in the Government’s report on this point. However, the Committee notes the information in the Government’s report to the CRC of 17 July 2008, that the Ministry of Women and Child Development, through its District Social Welfare Offices, is raising awareness on commercial sexual exploitation and providing assistance to victims. The Government indicates that these offices lack adequate resources to meet the basic needs of the withdrawn children and, as the victims have no alternate sources of income, they often return to work after receiving assistance (CRC/C/MWI/2, paragraph 332). The Committee also notes that the CEDAW, in its concluding observations of 5 February 2010, expressed concern at the extent to which women and girls are involved in sexual exploitation, including prostitution, and the limited statistical data regarding these issues (CEDAW/C/MWI/CO/6, paragraph 24). The Committee requests the Government to redouble its efforts to prevent girls under the age 18 from becoming victims of commercial sexual exploitation, and to remove and rehabilitate victims of this worst form of child labour. It requests the Government to provide information on the concrete measures taken in this regard, as well as information on the impact of these measures. To the extent possible, all information provided should be disaggregated by sex and age.