Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee  notes the Government’s report and requests it to provide information on the following points.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee notes the Government’s indication that this practice does not happen in Malawi. It adds that the Government has put in place programmes to educate people, including children themselves, on the dangers of the worst forms of child labour. In its previous comments, the Committee noted that, in its initial report to the Committee on the Right of the Child in June 2002 (CRC/C/8/Add.43, paragraphs 370 and 381), the Government indicated that sections 135, 167 and 265 of the Penal Code establish various offences in relation to the abduction, trafficking and sale of children and provide for sentences of imprisonment. It also noted that there is no specific policy or programme regarding the sale, trafficking and abduction of children in Malawi. The Committee notes 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 on the Rights of the Child recommended the Government to take measures, such as a comprehensive programme to prevent and combat the sale and trafficking of children, and to carry on an awareness-raising campaign and educational programmes, particularly for parents. The Committee draws the Government’s attention to the fact that, under the terms of Article 1 of the Convention, when a member State ratifies the Convention, it has to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour for persons under 18 years of age. The Committee therefore requests the Government to provide information on the measures adopted or envisaged to extend the prohibition on the sale and trafficking of young persons to all girls and boys under 18 years of age. Furthermore, it requests the Government to provide information on the imposition of penalties in practice by providing, inter alia, reports on the number of convictions.

Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. The Committee notes the Government’s indication that these practices do not happen in Malawi. However, the Committee notes that, according to an analysis entitled Malawi child labour survey published in February 2002 and produced by the Government and ILO/IPEC, over 500 children are victims of commercial sexual exploitation, particularly prostitution. The majority of the children are aged between 15 and 17 years. However, depending on the geographical area, between 15 and 20 per cent of the children are between 10 and 14 years of age. Furthermore, in its concluding observations on the initial report of Malawi in April 2002 (CRC/C/15/Add.174, paragraph 61), the Committee on the Rights of the Child expressed concern at the lack of knowledge of sexual exploitation and at the increasing number of child victims of commercial sexual exploitation, including prostitution and pornography. It also expressed concern at the insufficient programmes for the physical and psychological rehabilitation and social integration of child victims of this type of abuse and exploitation. The Committee observes that, according to the information referred to above, the use, procuring or offering of young persons under 18 years of age for prostitution, for the production of pornography or for pornographic performances appears to exist in Malawi. It further observes that the national legislation does not appear to prohibit this worst form of child labour. The Committee accordingly requests the Government to take the necessary measures to prohibit in the national legislation the use, procuring or offering of young persons under 18 years of age for prostitution, for the production of pornography or for pornographic performances. It also requests the Government to adopt adequate penalties. In this regard, the Committee draws the Government’s attention to its obligation under Article 1 to take "immediate" measures to prohibit the worst forms of child labour.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that the Government has not provided any information concerning this provision of the Convention. It reminds the Government that, under the terms of Article 3(c) of the Convention, the use, procuring or offering of a young person under 18 years of age for illicit activities, in particular for the production and trafficking of drugs, is considered to be one of the worst forms of child labour. The Committee therefore requests the Government to indicate the measures adopted or envisaged to secure the prohibition and elimination of the use, procuring or offering of young persons under 18 years of age for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, in accordance with Article 3(c) of the Convention. It also requests the Government to adopt adequate penalties. The Committee draws the Government’s attention to its obligation under Article 1 to take "immediate" measures to prohibit the worst forms of child labour.

Finally, the Committee once again requests the Government to provide the Office with a copy of the Penal Code.

Clause (d). Hazardous work. In its previous comments, the Committee noted that article 23, paragraph 4, of the Constitution of the Republic of Malawi provides that children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to: (a) be hazardous; (b) interfere with their education; or (c) be harmful to their health or to their physical, mental or spiritual or social development. Under the terms of paragraph 5 of article 23 of the Constitution, the term "children" means persons under 16 years of age. It also noted that section 22(1)(a) of the Employment Act (Act No. 6 of 2000) provides that no person between the ages of 14 and 18 years shall work or be employed in any occupation or activity that is likely to be harmful to the health, safety, education, morals or development of such a person. The Committee noted that there is a discrepancy between article 23 of the Constitution, which provides protection against hazardous work for children under 16 years of age and the provisions of section 22(1)(a) of the Employment Act, which prohibits the performance of types of hazardous work by any person under 18 years of age. The Committee notes the information provided by the Government that the issue of the discrepancy between the constitutional provisions and those of the Employment Act will be tabled at a meeting of the Tripartite Labour Advisory Council. The issue will also be discussed in the context of the labour law reform programme of the ILO/ILSSA project on this subject entitled Improving labour systems in southern Africa (ILO/ILSSA). Recalling that under this Article the term "child" shall apply to all persons under the age of 18, the Committee requests the Government to provide information on any developments as a result of the discussions held by the Tripartite Labour Advisory Council and in the context of the ILO/ILSSA labour law reform programme on the subject.

Article 4, paragraph 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 his 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 notes the information provided by the Government that, since the Act was promulgated, the Minister has not consulted with the relevant organizations of employers and employees on this issue. It also notes the Government’s indication that it will consult the organizations of employers and employees following the discussions which will be held in the ILO Consultative Workshop on Child Labour Monitoring and Identification of Hazardous Types of Work, which is scheduled for November 2004.

In this respect, the Committee reminds the Government that, under Article 4, paragraph 1, of the Convention, the types of work referred to under Article 3(d) must be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraphs 3 and 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). It draws the Government’s attention to Paragraph 3 of Recommendation No. 190, which indicates that, in determining the types of work referred to under Article 3(d) of the Convention, and in identifying where they exist, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; and (e) work under particularly difficult conditions, such as work for long hours or during the night, or work where the child is unreasonably confined to the premises of the employer. The Committee therefore requests the Government to take the necessary measures to determine the types of hazardous work prohibited for young persons under 18 years of age as a matter of urgency. It trusts that, when determining the types of hazardous work prohibited for young persons under 18 years of age, the Government will take into consideration the types of activities enumerated in Paragraph 3 of Recommendation No. 190. The Committee further requests the Government to provide information on the consultations held with the organizations of employers and workers.

Article 4, paragraph 2. Identification of where the hazardous types of work exist. The Committee notes with interest the information provided by the Government that, when conducting the survey of child labour in Malawi, an identification was made of where the hazardous types of work exist.

Article 5. Monitoring mechanisms. 1. National Steering Committee (NSC) on child labour, National Task Force on the Elimination of Child Labour and child labour monitoring committees. The Committee notes the Government’s indication that it has established a National Steering Committee (NSC) on child labour and a National Task Force on the Elimination of Child Labour, which is currently working in 11 districts of the country. Child labour monitoring committees have been set up at both the national and local levels, to monitor the implementation of the provisions of the Convention. The Committee requests the Government to provide information on the activities on the NSC, the National Task Force and the child labour monitoring committees and on the measures taken to establish an appropriate mechanism to monitor the implementation of the provisions giving effect to the Convention. It also requests the Government to provide information on the outcome of the various activities undertaken by the NSC, the National Task Force and the child labour monitoring committees, particularly through the provision of extracts of reports or documents.

2. Labour inspection. The Committee notes the Government’s indication that 33 labour inspectors have been trained on the prosecution procedures under the Employment Act. It also notes that the child labour monitoring system is being developed. The Committee requests the Government to provide information on the outcome of the various inspections undertaken in relation to the worst forms of child labour, particularly by supplying extracts of reports or documents. Furthermore, it requests the Government to provide information on the child labour monitoring system, particularly as it relates to the elimination of the worst forms of child labour.

Article 6, paragraphs 1 and 2. Programmes of action to eliminate the worst forms of child labour. With reference to its previous comments, the Committee notes the information provided by the Government that the ILO/IPEC programme was officially launched in December 2002. A planning workshop was held on 17 and 18 December 2002 to formulate an action programme. In this respect, the Committee notes the Government’s indication that nine action programmes have been established by organizations of employers and workers and local NGOs. It also notes that the results of the nine action programmes will be available at the end of 2004. The Committee requests the Government to provide information on the impact of the nine action programmes implemented and the results achieved in relation to the elimination of the worst forms of child labour.

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. The Committee notes the project entitled Prevention, withdrawal and rehabilitation of children engaged in hazardous work in commercial agriculture in Malawi. It notes that this project targets tobacco estates and family farms. It further notes that the objective of the project is to identify and eliminate hazardous child labour in tobacco plantations. The project is intended to prevent the premature work of 2,000 at-risk children in plantations and to withdraw and rehabilitate 1,200 children working under hazardous conditions, and their families. The Committee requests the Government to provide statistical data on the number of children who are in practice prevented from being engaged or who are withdrawn from hazardous work in tobacco plantations following the implementation of the project.

Clause (d). Identifying children at special risk. 1. HIV/AIDS. The Committee notes 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 notes 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 observes that HIV/AIDS has consequences on orphans, for whom there is an increased risk of being engaged in the worst forms of child labour. The Committee accordingly requests the Government to provide information on the specific measures adopted to improve the situation of these children.

2. Street children. 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 and to provide the children concerned with adequate assistance. The Committee notes that, according to the analysis entitled Malawi child labour survey, over 400 children live and work in the streets in Malawi. The Committee considers that children living in the streets are particularly exposed to the worst forms of child labour. It therefore requests the Government to provide information on the measures adopted or envisaged, particularly with regard to the protection of children living in the streets against the worst forms of child labour and their rehabilitation and social integration.

Clause (e). Special situation of girls. The Committee notes that, according to the study 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 requests the Government to indicate the manner in which it intends to accord special attention to these girls and remove them from the worst forms of child labour. It also requests the Government to provide information on the effective and time-bound measures taken to secure the rehabilitation and social integration of these girls. It further requests the Government to provide statistical data on the number of children who are in practice removed from commercial sexual exploitation.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the analysis report entitled Malawi child labour survey published by the Government and ILO/IPEC in February 2004. It requests the Government to continue providing statistics and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and the penal sanctions applied. To the extent possible, all information provided should be disaggregated by sex.