Malawi


  • Harry G. Chikasamba [1]

1. Population indicators

1.1 What is the total population of Malawi?

The final report of the 2018 Population and Housing Census published in May 2019 by the National Statistical Office (NSO) indicates Malawi has a total population (de-jure) of 17,563,749 representing a 35% growth in 10 years.[2] The report show that females make 51% (9,042,289) of the total population, and males make 49% (8,521,460) of the total population.

1.2 Describe the methodology used to obtain the statistical data on the prevalence of disability in Malawi. What criteria are used to determine who falls within the class of persons with disabilities?

The preliminary report on the 2018 Population and Housing Census published by NSO does not include disability-disaggregated data, and thus there is no discussion of any methodology used (if at all there was any) to collect disability data during the 2018 Census. The final report on the 2018 Population and Housing Census published by NSO indicates that during data collection a person was deemed to having a disability if they had difficulties or problems in one or all of the following areas: seeing, hearing, walking/climbing, speaking, intellectual, self-care, and other difficulties. NSO also collected data of persons with albinism and those with epilepsy.

The NSO obtained the 2018 data on the prevalence of disability through the population and housing census survey (decennial). Although the Washington Group Short Set of questions was not used, people were still asked if they had difficulties with walking/climbing, seeing, hearing, speaking or ‘any other problem’. Those that reported having difficulty in any of the above activities were considered to have had a disability.

1.3 What is the total number and percentage of people with disabilities in Malawi?

Malawi lacks clear and official disability statistics. But the 2008 NSO Census estimated the number of persons with disabilities to be around 498,122 which represented a disability prevalence rate of 3.8 percent. The 2018 Population and Housing Census indicates that there are 1,734,250 persons with disabilities in Malawi aged 5 years and above, representing about 11.6 percent of the total population aged 5 year and above. Of the total population of persons with disabilities, 134,636 are persons with albinism. Thus, persons with albinism in Malawi make up 0.8 percent of the total national population aged 5 years and above.

1.4 What is the total number and percentage of women with disabilities in Malawi?

The 2018 NSO Census estimated the population of women with disabilities to be around 937,536 representing 6.2 percent of the total population aged 5 years and above.

1.5 What is the total number and percentage of children with disabilities in Malawi?

The 2018 NSO Census does not provide a clear picture of the estimated number of children with disabilities. However, the 2008 NSO Census estimated children with disabilities aged 14 years or younger to be around 274,465 which represented 51.1 percent all persons with disabilities then.

1.6 What are the most prevalent forms of disability and/or peculiarities to disability in Malawi?

The 2018 Census classified seeing (49 percent), walking/climbing (27 percent), hearing (24 percent), intellectual (16 percent), and speaking (9 percent) to be the most prevalent forms of disability in the country.

2 Malawi’s international obligations

2.1 What is the status of the United Nation’s Convention on the Rights of Persons with Disabilities (CRPD) in Malawi? Did Malawi sign and ratify the CRPD? Provide the date(s)

Malawi ratified the CRPD on 27 August 2009 having had signed the same on 27 September 2007. Malawi is yet to sign and ratify the Optional Protocol to the CRPD.

2.2 If Malawi has signed and ratified the CRPD, when was the country report due? Which government department is responsible for submission of the report? Did Malawi submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?

Malawi’s Ministry of Justice and Constitutional Affairs is responsible for submission of state party reports to treaty bodies, and the Ministry closely works with line ministries, the Ministry of Gender, Children, Disability and Social Welfare in the case of CRPD reporting. Although the Ministry of Justice and Constitutional Affairs is tasked with the responsibility of submitting reports, it is the Ministry of Gender, Children, Disability and Social Welfare that plays a leading role. The Ministry of Justice and Constitutional Affairs is tasked with the responsibility of drafting and vetting the final report. Malawi’s Initial CRPD Country report was due on 27 August 2011. The country submitted its combined initial and first periodic report on 6th June 2017.

2.3 While reporting under various other United Nations’ instruments, under the African Charter on Human and People’s Rights, or the African Charter on the Rights and Welfare of the Child, did Malawi also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘concluding observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in your state’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/recommendations?

United Nations (UN) instruments

  • Convention on the Rights of the Child (CRC)

Malawi ratified the Convention on the Rights of the Child (CRC) on 2 January 1996. The country submitted its third report on 23 February 2015, and the CRC Committee considered the state party reported and adopted its Concluding Observations on the report in March 2017. In its Concluding Observations, the CRC Committee recommended the state party to intensify its efforts to eliminate discrimination against groups of children in vulnerable situations including children with disabilities and children with albinism. This recommendation is yet to be given full effect in Malawi.

  • Convention on the Elimination of All forms of Discrimination Against Women (CEDAW)

Malawi ratified the Convention on Elimination of all forms of Discrimination Against Women (CEDAW) on 12 March 1987. Malawi submitted its sixth and seventh reports to the CEDAW Committee on 20 October 2008 and 4th July 2014 respectively. The CEDAW Committee considered Malawi’s sixth state party report and adopted Concluding Observations on the report in January 2010. In its Concluding Observations to the sixth state party report, the CEDAW Committee did not make any observations or recommendations regarding women with disabilities. The Committee further considered Malawi’s seventh state party report and adopted its Concluding Observations on the report in November 2015. In the Concluding Observations to the seventh state party report, the CEDAW Committee expressed concerns over the lack of a clear provision on young women, children and persons with disabilities in the draft HIV/AIDS Bill. The Committee’s concern was not addressed in the HIV (Prevention and Management) Act of 2018.

  • International Conventional on the Elimination of all forms of Racial Discrimination (CERD)

Malawi ratified the International Convention on the Elimination of all forms of Racial Discrimination (CERD) on 11 June 1996. The initial state party report for Malawi was due on 11 July 1997, but Malawi has not yet submitted the report. On 22 August 2003, at its 1611th meeting, the CAT Committee adopted Concluding Observations on Malawi based on a variety of materials that were at the Committee’s disposal. The Committee did not make any reference to disability or persons with disabilities in the Concluding Observations. On 9 June 2006, however, Malawi submitted written replies to the list of issues by the CAT Committee under review procedure (initial to the fifth periodic reports due from 1997 to 2005 respectively). In its written replies, Malawi reported that 2.9 percent of the total national population comprised people with disabilities.

  • International Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment

Malawi ratified the International Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment on 11 June 1996, and the country’s initial state party report under LOIPR was due on 10 July 1997. The country has not submitted its report to the CAT Committee. On 6 December 2017, the CAT Committee adopted List of Issues Prior to Reporting (LOIPR) for Malawi in which the Committee asked Malawi to provide information on efforts undertaken to meet the special needs of persons with mental disorders and psychosocial disabilities in detention. Malawi is yet to respond to the inquiry made by the CAT Committee.

Universal Periodic Review (UPR)

Malawi underwent the second cycle of the Universal Periodic Review (UPR) on 5 May 2015. During the review a number of disability issues were considered including recommendations: to ‘reinforce action of the authorities to combat violence against persons with albinism’ put forward by France; ‘to combat all forms of discrimination, including against persons with albinism and persons with disabilities put forward by Italy; ‘to draw up a programme to ensure full enjoyment of rights by persons with albinism’ put forward by Sierra Leone; ‘to give full priority to ensuring full and effective implementation of the Disability Act’ put forward by Singapore; ‘to implement without delay recently presented action plan to improve security and wellbeing of persons with albinism’ put forward by Austria; and ‘to take concrete measures to ensure that anti-human trafficking act is effectively implemented and that persons with albinism are provided with equal protection of the law’ put forward by Norway. Most of the recommendations have been given full effect including through amending the Human Anatomy Act to strengthen security of persons with albinism, and also full prosecution and detainment of perpetrators of attacks, abductions and killings of persons with albinism. Furthermore, a new disability Bill, the Persons with Disabilities Bill, 2019, has been drafted and is awaiting enactment by the Malawi Parliament. Nonetheless, very little has been done to fully and effectively implement the Disability Act of 2012.

2.4 Was there any domestic effect on Malawi’s legal system after ratifying the international or regional instruments in 2.3 above? Does the international or regional instrument that has been ratified require Malawi’s legislature to incorporate it into the legal system before the instrument can have force in Malawi’s domestic law? Have Malawi’s courts ever considered this question? IF so, cite the case(s).

The Constitution of the Republic of Malawi requires that all international treaties or instruments Malawi accedes to be domesticated by an Act of Parliament.[3] It is noteworthy that almost all international and regional treaties or instruments ratified by Malawi are fully domesticated by Acts of Parliament. As noted above, there is a draft Persons with Disabilities Bill, 2019 which seeks to replace the Disability Act of 2012 to fully align Malawi’s disability legislation with the CRPD.

2.5 With reference to 2.4 above, has the CRPD or any other ratified international instrument been domesticated? Provide details.

The draft Disability Rights Bill of 2019 seeks to fully domesticate the CRPD. The Disability Act of 2012 in part domesticated the CRPD with provisions that were drawn verbatim from the CRPD.

3 Constitution

3.1 Does the Constitution of Malawi contain provisions that directly address disability? If so, list the provisions, and explain how each provision addresses disability.

Section

Provision

Explanation

13(g)

The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislations aimed at achieving the following goals –

(g) Persons with Disabilities

To enhance the dignity and quality of life of persons with disabilities by providing –

(i)      adequate and suitable access to public places;

(ii)     fair opportunities in employment; and

(iii)    the fullest possible participation in all sphere of Malawian society.

This provision empowers the Malawi government to take necessary actions or measures to ensure full inclusion and participation of persons with disabilities in society. With this provision, the government may adopt policies or make directives for government departments and parastatals, non-governmental organisations, private companies and/or institutions to make their premises accessible, promote active participation, and to exercise non-discrimination of persons with disabilities in all aspects including employment opportunities.

 

Persons with disabilities can therefore trigger this provision to hold government, NGOs or private companies/institutions accountable to the principles of equality and non-discrimination: the two cornerstones of human rights.  

20(1)

Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition.

Section 20(1) and 20(2) prohibits disability-based discrimination, and implicitly recognizes the equal status of persons with disabilities to that of everyone else. Thus, the law guarantees persons with disabilities an entitlement to enjoy all human rights and fundamental freedoms on an equal basis like everyone else.

 

The Constitution further mandates the government of Malawi to enact legislation and undertake deliberate measures to address any forms of inequality and/or exclusion persons with disabilities face in the country.

20(2)

Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts

23(4)

All children shall be entitled to reasonable maintenance from their parents, whether such parents are married, unmarried or divorced, and from their guardians; and, in addition, all children, and particularly orphans, children with disabilities and other children in situations of disadvantage shall be entitled to live in safety and security and, where appropriate, to State assistance.

This provision obliges government to guarantee and safeguard the safety and security of children with disabilities, and to ensure provision of adequate support and/or care to the children.

31(3)

Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.

 

This provision allows persons with disabilities to enjoy benefits on the same footing with persons without disabilities at work places. The employers are expressly given an obligation to treat all their employees equally where equal work of equal value is involved. Courts are expected to have regard to this provision and other provisions including sections 20 (equality before the law) when interpreting the law.

 

42(2)

Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right:-

(h)  if that person is a person with a disability, in recognition of his or her particular vulnerability, to be held, wherever possible, in separate accommodation

This will allow persons with disabilities suspected for or accused of an offence to be detained in conditions that diminishes the hardships that they would otherwise face if there were accommodated in facilities that do not take into account their disability.

  • Does the Constitution of Malawi contain provisions that indirectly address disability? If so, list the provisions and explain how each provision indirectly addresses disability.

It is worth noting that all the other provisions in the Constitution of the Republic of Malawi are applicable to all people including persons with disabilities. The following few provisions should, however, be taken note of as indirectly addressing disability.

Section

Provision

Explanation

12(2)

Every individual shall have duties towards other individuals, his or her family and society, the State and other legally recognized communities and the international community and these duties shall include the duty to respect his or her fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance; and in recognition of these duties, individual rights and freedoms shall be exercised with due regard for the rights of others, collective security, morality and the common interest

 

The state is recognizing that some abuse and discrimination happens in domestic setting and in some cases close relatives including guardians are involved. PwDs are thus guaranteed freedom from domestically perpetrated inequalities and insecurity. This necessitates that PwDs enjoy all human rights on an equal basis with others without fear of those around them and guaranteed their safety. This responsibility stems from the Constitution’s perception that PwDs belong to one of the vulnerable groups.

 

30(2)

The State shall take all necessary measures for the realization of the right to development. Such measures shall include, amongst other things, equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.

 

To enable realization of the right to development to spread equally among all, the state recognizes that other specific rights need to be attended to. Through legislation and/or policies on health, education and other services, the government shall emphasize on and guarantee the equality of all persons.

40(3)

Every person shall have the right to vote, to do so in secret and to stand for election for any elective office.

The state pays due regard to political rights of all persons and strives to make sure that everyone eligible to vote or stand for an elective office is able to do so, and this extends to PwDs. For example, voting materials are prepared specially for PwDs to enable them take part in the voting. However, there is still some work to be done to make sure that PwDs are involved in the all aspects of the electoral process. On the right to stand for election for an elective office, there is an uneven setting to allow PwDs favourably actively compete for an elective office. An initiative such as the 50:50 women campaign, which sponsors aspiring women candidates at national and party levels, would have had a favourable impact if availed to PwDs

4 Legislation

4.1 Does Malawi have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability?

Act

Explanation

Disability Bill 2019

The bill, which will become Persons with Disabilities Act of 2019, seeks to provide for equalization of opportunities for persons with disabilities through the promotion and protection of their rights. This will involve the establishment of the Council for Disability Affairs mandated to develop and implement standards and guidelines to ensure successful and effective implementation of rights based approaches to disability and development of persons with disabilities. Apart from regulating disability organisations and service providers, it will also harmonise a cross-sectoral collaboration and co-ordination in the planning, provision and evaluation of disability programs and services. The Act will also establish a Disability Trust Fund for purposes of supporting the implementation of disability programmes and services under the Act. If passed into law, the Bill will domesticate the UN CRPD with a holistic approach to the rights of PwDs in such areas including but not limited to health care services, education, accessibility, work and employment, social protection, participation in public and political life, economic empowerment, and access to technologies.

 

Disability Act 2012

This is Malawi’s disability-specific legislation which, in part, domesticates the CRPD. The Disability Act directly addresses disability issues, and further outlines some of the fundamental human rights that persons with disabilities are entitled to, including but not limited to the right to health care services (section 6), prohibition of disability-based discrimination in the health care and rehabilitation services (section 7), right to inclusive education (section 10), right to work and employment (section 12), right to participation in political and public life (section 17), right to economic empowerment (section 23), and the right to benefit from state disability-related research, information and communication technologies (section 26).

Mental Treatment Act

The Act makes provisions on treatment and management of mental health issues in the country. It is worth noting that the Act was adopted decades before Malawi ratified the CRPD, as such the Mental Treatment Act is grounded in the bio-medical framework of mental health. However, there have been some considerable efforts to replace the Mental Treatment Act following drafting of a Mental Health Bill in 2005. Notably, the Mental Health Bill partially considered the social and/or human rights model of mental health by, among others, providing for accessibility of mental health care and services to persons with mental health issues at all levels, and for the respect of the human rights and dignity of persons with mental health issues. It however remains unclear on where the country is as regards the draft Mental Health Bill of 2005.

4.2 Does Malawi have legislation that indirectly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability?

Name of legislation

Description of pertinent provision

Political Parties Act of 2018

The Act is anchored on non-discrimination as one of its guiding principles, and section 3(1)(c) of the Act explicitly mentions disability as one of the grounds upon which discrimination is prohibited. Further, the Act, under section 14, empowers the Registrar of Political Parties to refuse any party registration if he or she deems the purpose or objects of such a party discriminate against or promote discrimination of people on the basis of different grounds including disability.

Customary Land Act of 2016

The Act, under section 22(2), explicitly guarantees that Land Committees shall exercise full regard to equality of persons and will thus not discriminate against anyone on the basis of disability or other grounds in determining whether to grant or refuse a customary estate.

 

HIV and AIDS (Protection and Management) Act of 2018

The Act, under section 2, mandates the responsible minister to ensure availability of HIV and AIDS information and educational materials in accessible formats with full regard to the needs of PwDs

Child Care, Protection and Justice Act of 2010

The Act, under section 72, mandates local government authorities to keep a register of children with disabilities and to provide support and/or assistance to the children to facilitate their growth with dignity and o develop their potential and self-reliance.

 

Further, section 145(d) of the Act obliges presiding officers in child justice courts to ensure that children with disabilities are adequately supported and given assistance during court proceedings.

 

Education Act of 2013

The Act, under section 4(1)(a), obliges the Minister of Education to facilitate and promote non-discriminatory practices and opportunities in education including without regard to ones disabilities.

 

Employment Act of 2000

Section 5(1) provides for a non-discrimination clause, and includes disability as one of the grounds upon which discrimination in employment is prohibited.

 

Section 5(2) of the Act provides room for adoption of deliberate measures aimed at achieving de facto equality for all employees or prospective employees. Such measures may include affirmative action and/or reasonable accommodation.

 

Section 6(1) prohibits discrimination on any basis, including disability, in remuneration of employees. Thus, the Act, under this provision, guarantees equality of status and opportunity for all employees undertaking similar work.

 

Section 57(a) provides security of employees with disabilities from unfair dismissal on the basis of disability.

 

Technical, Entrepreneurial and Vocational Education and Training Authority (TEVETA) Act of 1999

Whereas the Act does not refer to persons with disabilities in its provisions, it nonetheless obliges the TEVETA Board to include a representative of persons with disabilities among its membership.

5. Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in Malawi ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.

In recent times, there have been a number of cases involving abductions, attacks and killings of persons with albinism that have been brought to the attention of the courts in Malawi. Most of the cases have not yet been concluded, while as those that were concluded are not adequately reported.

  • Republic v Bello Dinesi and Others (Criminal case No. 66 of 2015)

The accused persons were charged with an offence of selling human bones, contrary to section 16(a) of the Anatomy Act, believed to be of a deceased person with albinism among other charges. On the evidence, the accused persons made confessions to the effect that they entered the graveyard and exhumed the bones of the deceased person buried three years earlier. However, the charge as prepared by the prosecution and the elements of the offence charged failed to support the conviction of the accused persons. Nonetheless, the presiding Senior Resident Magistrate noted that the proper charge would be trespassing on burial place contrary to section 129 of the Penal Code and removing bones from the body of a deceased person contrary to section 18(1)(a) of the Anatomy Act. He then duly substituted the charges. The disposition of the matter was therefore an order for a fresh plea to be taken by the accused persons.

The accused persons pleaded guilty to the substituted offences and were consequently convicted and sentenced. When coming up with the sentences, the court opined that although the convicts were first offenders where custodial sentence is not preferred, aggravating factors in the present case warranted custodial sentence as a matter of punishment and deterrence. The court took judicial notice that cases involving persecution of persons with albinism whether dead or alive had proliferated and that there were a number of unconcluded cases in various courts whose subject matter was sale of human bones especially of persons with albinism. The case was further aggravated by the fact that the bones of the deceased person with albinism were yet to be recovered. The case highlights problems faced in prosecuting offences relating to persons with albinism in that the framing of the law made it problematic to secure convictions. It must be noted, however, that relevant parts of the Penal Code and the Anatomy Act have since been amended to address these problems. It is also worth noting that the Ministry of Justice and Constitutional Affairs has since come up with a comprehensive Handbook for investigators, prosecutors and magistrates concerning offences against persons with albinism. 

6 Policies and programmes

6.1 Does Malawi have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.

  • National Inclusive Education Strategy 2017-2021

The National Inclusive Education Strategy, which was adopted in 2017, aims at supporting a major reform towards Inclusive Education which enables all children to learn together in the same environment without discrimination. The strategy mainstreams special needs education interventions into the general education programmes and activities. The Strategy, to a large extent, entails redefining the roles of all education players and aligning them to inclusive education principles and demands. The strategy is basically grounded to address factors that either exclude learners from and/or within the education system which include, but not limited to
inaccessible school infrastructure, lack of counselling and psychosocial support services at school and community levels.

  • The National Disability Mainstreaming Strategy and Implementation Plan (NDMS&IP) 2018 - 2023

The NDMS&IP is a guide and Action Plan of the Malawi government for the years 2018 to 2023. This was developed and subsequently adopted against the background that persons with disabilities continue to face discrimination in accessing basic social services despite the existence of national policies and laws on disability. The plan is a tool to guide the public and private sector to effectively mainstream disability in their policies and programmes in order to ensure government’s commitment to ensuring promotion of an inclusive society that appreciates disability as part and parcel of human diversity. It is envisaged that the effective implementation of the Strategy will contribute to the realisation equality and non-discrimination principles as provided for in the Republican Constitution, the National Policy on the Equalization of Opportunities for Persons with Disabilities and the Disability Act among other disability standards and instruments.

The NDMS&IP is premised on the assumptions that government will be committed to implementing the Disability Act (2012) and that it will take deliberate steps to ensure that subsequent national development strategies are disability inclusive. Again, on its part, government will ensure that its agencies responsible for the delivery of services in such areas as but not limited to health, education, livelihoods, community and social development, infrastructural development, information and technology, environment, and climate change will assign senior staff at Director/Deputy Director level to champion and coordinate disability mainstreaming activities in their respective ministries, departments and parastatals. The government also intends to operationalize a Disability Trust Fund as provided for in the Disability Act of 2012 to ensure availability of resources for programmes and services that focus on mainstreaming disability that will also involve decentralizing disability issues to local government councils so that coordination and monitoring of disability inclusive development at both local and national levels.

  • National Policy on the Equalisation of Opportunities for Persons with Disabilities

In 2006, the Malawi Government adopted a first ever disability-related policy: the National Policy on the Equalisation of Opportunities for Persons with Disabilities[4]. The Disability Policy seeks to facilitate and promote human rights of persons with disabilities as well as to enable them to fully participate in all aspects of society. The policy identifies ‘promotion of inclusion of persons with disabilities at all levels of society through creation of an enabling environment for the respect of human diversity, human rights and development of all human potential’ as its mission. The Disability Policy envisions ‘Malawi becoming a nation where people with disabilities have equal opportunities to participate in various undertakings and realize their potential and goals in life’. The Policy’s overall goal is ‘to integrate fully persons with disabilities in all aspects of life thereby equalizing their opportunities in order to enhance their dignity and well-being so that they have essentials of life’. To achieve the overall goal, the Policy outlines a number of statements in key areas including but not limited to education, accessibility, information and communication, transport, self-representation and participation. 

The Disability Policy is anchored on several guiding principles including but not limited to participatory approach and community empowerment; facilitating and supporting capacity building of DPOs; ensuring access for persons with disabilities to all public sector activities; a twin-track approach to service delivery; ensuring inclusion of persons with disabilities; advocacy and support to the human rights model of disability; and recognition of the diversity of persons with disabilities.

The main objectives of the Disability Policy are: formulating strategies towards disability prevention, rehabilitation and equalization of opportunities for persons with disabilities; developing programmes that alleviate poverty amongst persons with disabilities and their families; promoting efforts that encourage positive attitudes towards children, youth, women and adults with disabilities; supporting community-based service delivery, in collaboration with local and international development agencies and organisations; mainstreaming disability in the social, economic and political agenda of development programmes; strengthening the National Advisory and Coordination Committee on Disability Issues (NACCODI); and putting in place programmes that create greater awareness and conscientiousness of communities and government relating to disability.

  • Special Needs Education Policy

The Special Needs Education Policy was adopted in 2007 ‘to address the pressing challenges that come with implementation of special needs education including but not limited to inadequacy of funds to promote special needs education, negative attitudes that other people have towards persons with disabilities, and inaccessibility of school structures.’[5] The Policy identifies core elements of special needs education within the context of the Malawi education system, viz early identification of disability; access; advocacy; assessment and intervention; management, planning and resourcing; quality, care and support; equity; and relevance.[6] It is worth noting that the policy aligns itself with the special schools approach by consistently referring to the notion of special needs education, and not inclusive education.

6.2 Does Malawi have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.

  • National HIV/AIDS Policy

The policy builds from the Constitutional guarantees on the right to equal protection before the law and freedom from discrimination on different grounds including disability. It recognizes that groups suffering from discrimination which makes them vulnerable in the context of HIV/AIDS include women and young girls, orphans, widows and widowers, children, the poor, sex workers, prisoners, persons engaged in same sex sexual relations and people with disabilities.

On the part of PwDs, the policy underscores that an effective response to the epidemic requires that the rights to equality before the law and freedom from discrimination are respected, protected and fulfilled. It thus requires that the government and partners ensure that HIV-related prevention information and education, treatment care and support strategies are tailored to the special needs of and are accessible to people with disabilities. Government and partners also have to ensure that all decision-making forums and structures make provision for the full and active participation of people with disabilities. Apart from that, the policy obliges government and partners to make sure that all responses to HIV/AIDS consider the implications for people with disabilities, and plan for more effective responses based on models of international best practice.

  • National Education Policy, 2013

The National Education Policy (NEP) is Malawi Government’s document that spells out government policy on education, and was developed to respond to the Malawi Growth and Development Strategy II (MGDS II). The policy recognizes the importance of inclusion of special needs education, out-of-school youth and adult literacy in the education sector. The NEP outlines the sector’s priorities and defines the country’s education policies that will guide development of the education sector in Malawi. Through the policy, Malawi government recognizes that education is the backbone for socio-economic development, economic growth and a major source of economic empowerment for all people especially women, the youth and persons with disabilities. Further, the policy seeks to mainstream and enhance equitable access to quality and relevant special and inclusive education.

  • National Youth Policy, 2013

Malawi adopted a National Youth Policy in 2013 with an overall aim of providing ‘a framework with guidelines for the facilitation of meaningful youth development programs and services with full participation of the young people themselves at all levels.’[7] The Policy outlines non-discrimination on any basis including disability (my emphasis) as one of its guiding principles. The Policy commits to ‘increasing the proportion of youth participating in sports, cultural and recreational activities including those friendly to youth with disabilities’[8], and further states that Organisations of Persons with Disabilities (DPOs) will be encouraged to participate in provision of sports and recreation facilities. It is worth noting that the Policy recognizes youth with disabilities as one of the priority target groups during implementation; however, a critical analysis of the Policy document as a whole indicates serious neglect and exclusion of youth with disabilities, and there is lack of clarity on how implementation of the National Youth Policy in effect prioritises youth with disabilities.

7 Disability bodies

7.1 Other than the ordinary courts and tribunals, does Malawi have any official body that specifically addresses violations of the rights of people with disabilities? If so, describe the body, its functions and its powers.

Malawi does not have a specific body that is mandated to address violations of the rights of people with disabilities.

7.2 Other than the ordinary courts or tribunals, does Malawi have any official body that though not established to specifically address violations of the rights of persons with disabilities, can nonetheless do so? If so, describe the body, its functions and its powers.

Malawi only has a National Technical Committee on Abuse of Persons with Albinism which was given the mandate to address issues of violations of the rights of persons with albinism especially in the wake of brutal attacks, abductions and killings of persons with albinism in the country. However, the Committee has not lived up to people’s expectations and, according to the Association of Persons with Albinism, the Committee has demonstrated serious lack of political will to address the challenges that persons with albinism are facing in the country.[9]

 It is worth noting, however, that the draft Disability Bill of 2019 proposes establishment of the Council for Disability Affairs which will have the mandate to (1) develop and implement standards and guidelines to ensure successful and effective implementation of rights based approaches to disability and development of PwDs, (2) regulating disability organisations and service providers, and (3) harmonise a cross-sectoral collaboration and co-ordination in the planning, provision and evaluation of disability programs and services. The only setback though is that the Bill does not explicitly mandate the Council for Disability Affairs to address violations of the rights of persons with disabilities.

8 National human rights institutions, Human Rights Commission, Ombudsman or Public Protector

8.1 Does Malawi have a Human Rights Commission, Ombudsman or Public Protector. If so, does its remit include the promotion and protection of the rights of people with disabilities? If your answer is yes, also indicate whether the Human Rights Commission, or the Ombudsman or Public Protector of Malawi has ever addressed issues relating to the rights of persons with disabilities.

Yes, Malawi has both the Human Rights Commission[10] and the Ombudsman[11] although the two bodies have not yet carried disability-specific work or litigation. It is however worth noting that the Constitution mandates these two bodies to receive complaints or allegations on any forms of violations of the rights of all people.

The Malawi Human Rights Commission was established by the Constitution of the Republic of Malawi, and was given legal mandate to handle issues relating to violations of all forms of human rights including the rights of persons with disabilities. The work of the Malawi Human Rights Commission is further strengthened by an Act of parliament: the Human Rights Commission Act, which defines the scope, status and functions of the Malawi Human Rights Commission. The Act thus mandates the Malawi Human Rights Commission ‘to promote more particularly the human rights of vulnerable groups such as children, illiterate persons, persons with disabilities and the elderly.’[12]

The Office of the Ombudsman was also established by the Constitution of the Republic of Malawi, under section 123, to investigate complaints or allegations in which a ‘person has suffered injustice and it does not appear that there is any remedy reasonably available by way of appeal from court or where there is no other practical remedy.’[13]

9 Disabled peoples organisations (DPOs) and other civil society organisations

9.1 Does Malawi have organisations that represent and advocate for the rights and welfare of persons with disabilities? If so, list each organisation and describe its activities.

Yes, Malawi has several organisations that are working on disability issues. Most of the organisations are DPOs which focus solely on disability issues. Other organisations, like Plan International Malawi and Episcopal Conference of Malawi (ECM) only have a program or two that focus on disability, and mostly such program(s) focus on awareness raising and promoting inclusive education for children with disabilities. Below is a list[14] of the organisations working in disability issues in Malawi:

  • Federation of Disability Organisations in Malawi (FEDOMA)
  • Association of Persons with Albinism (APAM)
  • Malawi Union of the Blind (MUB)
  • Malawi National Association for the Deaf (MANAD)
  • Disabled Women in Africa (DIWA)
  • Episcopal Conference of Malawi (ECM)
  • Plan International Malawi
  • Visual Hearing Impairment Membership Association (VIHEMA)
  • Disability, HIV and AIDS Trust (DHAT) Malawi
  • Association of the Physically Disabled of Malawi (APDM)
  • Livingstonia Synod of the CCAP
  • Blantyre Synod of the CCAP
  • National Epilepsy Association (NEA)
  • Centre for Inclusive Education, Mzuzu University
  • Faculty of Law, Chancellor College
  • Department of Special Needs Education, Catholic University of Malawi
  • Disabled Women in Development (DIWODE)
  • Malawi Disability Sports Association (MADISA)
  • Disabled Widows Orphans Organisation of Malawi (DWOOM)
  • Parents of Disabled Children Association in Malawi (PODCAM)
  • Save the Children International
  • UNICEF
  • CBM

10 Government departments

10.1 Does Malawi have a government department/departments that is/are specifically responsible for promoting and protecting the rights and welfare of persons with disabilities? If so, describe the activities of the department(s).

  • The Department of Disability and the Elderly within the Ministry of Gender, Children, Disability and Social Welfare is the primary government department with the mandate to promote the rights, welfare and wellbeing of persons with disabilities and the elderly. The department exists to, among other functions, (1) provide policy direction on disability and elderly, (2) facilitate mainstreaming of disability issues into sectoral plans, policies and programmes, (3) promote rights of persons with disabilities and the elderly; (4) coordinate, monitor and evaluate implementation of disability and elderly programmes, and (5) raise public awareness on disability issues.
  • The Ministry of Education, Science and Technology (MoEST) has a Special Needs Department which exists to provide policy direction and support for mainstreaming disability in the education sector.
  • Malawi Council for the Handicapped (MACOHA) is a Malawi government agency with the mandate to promote the welfare of persons with disabilities by providing rehabilitation and welfare services; and administering vocational and special training centres for persons with disabilities. However, it is worth noting that MACOHA was established by a 1971 Act of Parliament, at a time when the charity and medical models of disability were at their peak, and thus its functions or objects are not fully in line with the human rights model of disability.

11 Main human rights concerns of people with disabilities in Malawi

11.1 Contemporary challenges of persons with disabilities in Malawi (for example, in some parts of Africa ritual killings or certain classes of PwDs, such as people with albinism, occurs).

The challenges include but not limited to social exclusion and discrimination, abduction and killing of persons with albinism. Refer to 11.2 below for a detailed account of the challenges.

11.2 Describe contemporary challenges of persons with disabilities, and the legal responses thereto.

Persons with disabilities in Malawi face several challenges, the most common one being social exclusion and discrimination.[15] Whereas Malawi has had, in the past couple of years, considerable efforts in ensuring access to educational opportunities for all, persons with disabilities remain systematically excluded at different levels of the education system including early childhood development, primary, secondary and tertiary education.[16] Exclusion of and discrimination of PwDs extend to several areas of the Malawi society including but not limited to pubic and political life, health, access to justice[17] and employment among other areas.

For persons with albinism, they specifically face gruesome killings, abductions and attacks for their bones that are believed to contain some magical powers. Amnesty International documents the extent to which the attacks, abductions and killings of persons with albinism have increased since 2014. According to Amnesty, over 148 cases were reported between 2014 and 2018, and several other incidences remained unreported.[18]

In terms of legal responses to the challenges stated above, Malawi enacted a Disability Act in 2012 and amended the Anatomy Act. There is also a draft Persons with Disabilities Bill, 2019 which seeks to build on the shortfalls in the current Disability Act to fully domesticate the UN CRPD and to strengthen the national response mechanism. Whereas some cases involving attacks, abduction and/or killing of persons with albinisms have been brought to the attention of the formal institutions of justice including the police and the court, it is very regrettable to note that the slow pace in attending to and concluding the cases leaves a lot to be desired.

11.3 Do people with disabilities have a right to participation in political life (political representation and leadership) in Malawi?

Every Malawian is constitutionally guaranteed freedom of association, under section 32, which includes freedom to form associations. Also, section 40(3) provides that every person shall have the right to vote and to stand for election for any elective office. The right to political participation and to non-discrimination in political and public life is also provided for under the Disability Act. Over and above, section 20 of the Constitution provides for equality of all persons and it further prohibits discrimination on the basis of disability among other grounds. It is worth noting that Malawi has ever had a cabinet minister who was a person with a disability.   Whereas the law provides for equal participation in political and public life, societal attitudes and persons with disabilities’ lack of resources as well as inaccessibility of most of the political structures continue to pose great challenges to persons with disabilities’ participation in political life.

11.4 Are people with disabilities’ socio-economic rights, including the right to health, education and other social services protected and realized in Malawi?

The Constitution of Malawi is anchored on equality and non-discrimination principles. Other national legislation also addresses the rights of persons with disabilities directly or otherwise. Malawi also has quite substantial policies that have been formulated to address the challenges faced by persons with disabilities and to facilitate or promote their full enjoyment to human rights and freedoms. Thus, the socio-economic rights of persons with disabilities including their right to health, education and other social services are adequately guaranteed and protected in Malawi. This notwithstanding, persons with disabilities continue to face grave exclusion and discrimination which thwarts efforts to realize the socio-economic rights as guaranteed for and protected in the national legal and policy instruments. Whereas socio-economic rights are subject to progressive realization, states are nevertheless expected to strive towards fulfilling and ensuring citizens enjoy their socio-economic rights to the maximum extent possible, even in the face of resource constraints.[19] Notably, Malawi still struggles to fully realize socio-economic rights of persons with disabilities.

11.5 Specific categories experiencing particular issues / vulnerability.

Persons with albinism continue to face brutal attacks and killings due to societal misconceptions that body parts of persons with albinism contain magical powers for wealth generation. In some cases, the attacks and/or killings are orchestrated by close family members; and in one particular case which is currently in court, a member of the clergy, a government health worker and a police officer are among the key suspects answering murder charges involving a person with albinism.

12 Future perspective

12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in your country at the moment? What legal reforms are being raised? Which legal reforms would you like to see in your country?

Issues around the security of persons with albinism and their access to justice have of late been debated in the country. It is worth noting that in the wake of continued attacks and killings of persons with albinism, the Ministry of Justice and Constitutional Affairs produced a handbook for investigators, prosecutors and magistrates which seeks to provide guidance on offences against persons with albinism. There is, however, need to accelerate government’s effort to train magistrates, lawyers, investigators, judges and prosecutors on disability rights issues.

In terms of reforms, the Persons with Disabilities Bill, 2019 is proposing very substantial and progressive reforms to strengthen legal response to violations of rights of persons with disabilities. One notable feature that was missing out in the Disability Act of 2012 was a provision on access to justice, and the Persons with Disabilities Bill, 2019 addresses that gap. However, the draft Bill fails to make adequate provision for procedural and age-appropriate reasonable accommodation and promotion of disability rights training to those working in the field of administration of justice.[20] Section 7 of the draft Bill, which guarantees the right to inclusive education, does not make provision on training teachers and other educators in inclusive education practices, as well as reforming the education curriculum by, among other things, incorporating AAC (augmentative, alternative communication) in the design and delivery of the curriculum at different levels. Accordingly, the Bill should be revised to include provision of ‘procedural and age-appropriate accommodation’ and training of people working in the administration of justice; and provide for training of teachers and other educators on inclusive education practices, and reforming the education curriculum to, among other things, incorporate AAC tools. This would essentially strengthen the ‘legal framework’ guaranteeing persons with disabilities’ access to justice and to an inclusive education system in the country.

 

The draft Persons with Disabilities Bill, 2019 is nonetheless a good tool that aligns Malawi with the right direction towards full domestication of the CRPD and adequate guaranteeing of the rights of persons with disabilities. Enacting the Bill, albeit there is need to make the revisions suggested above, would strengthen the country’s efforts in ensuring, promoting and safeguarding the rights of persons with disabilities.

[1] PhD Candidate (Human Rights Law and Disability), Vrije Universiteit Amsterdam; LL.M (with Distinction), University of Leeds.

[2] National Statistical Office (NSO) Population and Housing Census 2018: Final Report (2019) 4.

[3] Malawi Constitution, sec 211(1); Chihana v Republic [1992] 15 MLR 86 (Supreme Court).

[4] Malawi Government. National Policy on the Equalisation of Opportunities for Persons with Disabilities (2006) (the Disability Policy)

[5] Harry Chikasamba Negotiating the right to inclusive education in Malawi: Persons with Disabilities and the higher education system in Malawi Unpublished LLM thesis, University of Leeds (2017); See also Malawi Government (Ministry of Education, Science and Technology) National Special Needs Education Policy

[6] Chikasamba (supra) 38-39; See also Ambumulire Itimu and Patricia Kopets ‘Malawi’s special needs education (SNE): perspectives and comparisons of practice and progress’ (2008) 8(3) Journal of Research in Special Educational Needs;

[7] Malawi Government (Ministry of Youth Development and Sports) National Youth Policy – The Nation today and tomorrow (2013).

[8] Ibid. 21

[9] Times Reporter ‘Peter Mutharika’s committee has failed us— Apam’ (27 March 2018). Accessed online at https://www.times.mw/peter-mutharikas-committee-has-failed-us-apam/ on 13 December 2018.

[10] Malawi Human Rights Commission (MHRC), HB House, Off Paul Kagame Road, Private Bag 378, Lilongwe 3, Malawi, Tel: +265 1 750 900

[11] Office of the Ombudsman, St. Martin’s House, Private Bag 348, Lilongwe 3, Malawi, Tel: +265 1 774 886, Email: This email address is being protected from spambots. You need JavaScript enabled to view it., url: http://www.ombudsmanmalawi.org/

[12] Malawi Government (Ministry of Justice and Constitutional Affairs) Human Rights Commission Act (1998)

[13] See Office of the Ombudsman website at http://www.ombudsmanmalawi.org/

[14] The author does not want to claim that this is an exhaustive list of all organisatons working on disability issues in the country. There may be some other organisations that work on disability issues, but their work is not reported or little is known about such organisations.

[15] Ambumulire Itimu-Phiri (ed) National Disability Mainstreaming Strategy and Implementation Plan (NDMS&IP) 2018-2023 (2018).

[16] Ministry of Education, Science and Technology (MoEST) National Strategy on Inclusive Education 2017-2021 (2018)

[17] Amnesty International, in its briefing titled ‘End violence against people with albinism: Towards effective criminal justice for people with albinism in Malawi’, posits that people with albinism experience long delays in their attempts to get justice.

[18] Amnesty International ‘Malawi: Impunity fuels killings of people with albinism for their body parts’ available online at https://www.amnesty.org/en/latest/news/2018/06/malawi-impunity-fuels-killings-of-people-with-albinism-for-their-body-parts/

[19] Gable Masangano (suing on his own behalf and on behalf of all prisoners in Malawi) v Attorney General and Others, Constitutional Case No. 15 of 2007

[20] See sec 18 of the draft Persons with Disabilities Bill, 2019; See also how the CRPD makes explicit provision of procedural accommodations and promotion of training to those working in the field of administration of justice under Article 13.