Country Report on Human Rights Practices for 1991
MALAWI
Malawi's political, economic, and social development has been
dominated by Life President Dr. H. Kamuzu Banda ever since he
led the country to independence in 1964. Dr. Banda is also
life president of Malawi's sole legal party, the Malawi
Congress Party (MCP) . In practice, the Cabinet and Parliament
are subordinate to the MCP Central Committee. Only candidates
selected by the party and approved by the President may contest
parliamentary elections. Constitutional amendments and laws
passed by the Parliament mirror decisions already taken by
President Banda.
Police and party security organs—notably the Security and
Intelligence Service (SIS), the MCP Youth League, and the
Malawi Young Pioneers (MYP)—closely monitor a wide range of
the population's activities. The police continue to commit
serious human rights abuses. In contrast, the army has
eschewed internal politics.
Small, densely populated, and landlocked, Malawi is a
predominantly agricultural economy operating under a relatively
free enterprise environment. Nearly 90 percent of the
population engages in subsistence farming. The main cash
crops, grown mostly on estates, are tobacco, tea, coffee, and
sugar. Since independence, and with good management, the
economy has grown steadily, with a major portion of that growth
in the agricultural sector.
Malawi's poor hxunan rights record stands in sharp contrast to
its economic achievements and humanitarian handling of Africa's
largest refugee population. In 1991 the Government and party
kept strict control on all aspects of political life, with
continued restrictions on speech, press, assembly, association,
and the right of citizens to change their government through
democratic means. Police abuse of prisoners and detainees,
including women, persisted. The Government continued also to
use arbitrary detention, especially under the Preservation of
Public Safety Act, to counter alleged opponents. The
Government released 88 political detainees in the first half of
1991, including Professor Jack Mpanje and several other
prominent persons long held without charge or trial. It did
not, however, release Orton and Vera Chirwa, who have long been
the focal point of international concerns about human rights
abuses in Malawi, and a number of other political detainees and
prisoners, estimated at year's end at between 15 and 20.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
There were no political killings in 1991. However, Fred
Kazombo Mwale, a nephew of President Banda and a detainee since
June 1991, is believed to have died in November while in
custody. Kazombo suffered from high blood pressure,
exacerbated by the deleterious conditions of Nsanje Prison. In
the case of Mkwapatira Mhango, a leading Malawian dissident who
was murdered in Zambia in October 1989 (along with eight
members of his family), the five Malawians detained as suspects
by Zambian authorities were handed over to Malawian officials
in mid-1991. They were reportedly released 1 month later.
Disappearance
There were no reported cases of disappearance for political
reasons in 1991.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Allegations of institutionalized torture persist. Beatings
during arrest and detention are illegal but common. Guilty
officers are rarely disciplined. Human rights organizations
have reported that some criminal prisoners have been subjected
to "hard core" punishment in which the person is chained naked
to the floor of a cell and denied adequate food for 30 days.
Prison terms and conditions are harsh and frequently degrading,
particularly in Nyachikadza (Nsanje) prison on the Shire river
marshes in southern Malawi, where malaria is also a constant
danger. Women appear to be particularly ill-treated, including
at the country's main prison in Zomba . Reports persist
concerning sexual abuse of women prisoners by their warders.
d. Arbitrary Arrest, Detention, or Exile
Under the Preservation of Public Security Act, the Minister of
Justice (a position held by President Banda) may order the
arrest, search, and detention of persons considered a threat to
public order. Persons arrested under this law may be, and
usually are, detained without charge or trial. The President
is supposed to review such cases every 6 months, but this
constitutional safeguard has had no noticeable effect on
presidential decisions.
Police officers may also arrest persons on their own authority
for up to 28 days before a formal detention order is issued.
Historically, persons often have been held for months before
being served detention p'apers, if ever. In 1990 improved
police performance helped to ensure that most new detainees
were processed properly within the 28-day limit, but it did not
prevent the Government from issuing detention orders in 1991 to
stifle any sign of dissent.
During the first half of 1991, the President, in an unexplained
surprise move, released 88 political detainees. None of them
was even given an official explanation as to why they had been
detained. Those released comprise more than 80 percent of the
number of known political detainees and included several
prominent figures.
Among those released were Professor Jack Mapanje, former head
of the University of Malawi's Department of Literature; Dr.
George Mtafu, Malawi's only neurosurgeon; and Margaret Marango
Banda, a prominent Anglican lay leader. Mapanje and Mtafu were
reinstated professionally but immediately went abroad to teach
and study. Others released without explanation included Brown
Mpinganjira, Ishmael Mazunda, Blaise Machila, L.W. Masiku, and
Ian Mbale.
Among new detentions in 1991 were the two daughters of Gwanda
Chakuamba Phiri, a former minister convicted and imprisoned in
1980 for an alleged coup plot. They were held for 2 months for
allegedly helping their father smuggle out of prison
correspondence that questioned the country's leadership and
direction. In May President Banda detained his nephew, 6 5-year
old Fred Kazombo Mwale, and imprisoned him at Nsanje prison
without charge. He died in November. Two of Kazombo ' s wives
were also detained, albeit in prisons with better conditions.
Kazombo reportedly had abused his position as de facto
patriarch of the President's family to seize lands from
neighboring smallholders.
George Chikuni, former Malawian Ambassador to South Africa, was
arrested in January 1990 for fiscal irregularities while
assigned to Pretoria. Chikuni was convicted of a misdemeanor
in 1991, and, after he had spent a year in jail, a magistrate
gave him a suspended sentence. The police refused to release
him, possibly because President Banda is known to have
personally expressed his displeasure over Chikuni ' s behavior.
Government secrecy precludes an accurate estimate of the number
of political detainees and prisoners in Malawi, but at the end
of 1991 experienced observers put the number at between 15 and
20, including Orton and Vera Chirwa (see Section I.e.). Martin
Machipisa Munthali, who was first detained in 1965, remained in
prison at year's end; he is now considered Africa's longest
serving political detainee. Aleke Banda, once a confidant and
likely successor to President Banda (no relation), was quietly
released from Mikuyu prison in late 1988 but is still
restricted to house arrest on the Mpyupyu prison farm near
Zomba . He is allowed periodic visits from family members.
Detained in 1980, Aleke Banda has never been charged. Dr. Dany
(Goodluck) Mhango, detained in 1987 after his brother
(Mkwapitira Mhango, murdered in Lusaka in 1989) published
hostile articles outside Malawi, remained in Mikuyu prison.
Mary Sikwese, sister of Fred Sikwese, remains in detention
after she complained about her brother's death while in police
custody in 1989. Frackson Zgambo, detained with Sikwese,
allegedly for espionage, also remained in detention.
Former teachers' association official Kalusa Chimombo has been
detained since 1978. Others detained include Sylvester Gondwe,
,he sales manager for a large petroleum distributor; he was
detained in September for unknown reasons, subsequently
dismissed from his job, and then released in December. Abdul
Juneja Lemani , a merchant from the Mwanza district, was
detained in November after allegedly expressing a lack of
confidence in the ability of the police to protect area
residents from border-crossing RENAMO forces.
While forced exile has not been used as a means of political
control, there is a small but constant exodus of persons who
leave for political reasons.
e. Denial of Fair Public Trial
Malawi has both traditional and European court systems. Legal
counsel is permitted only in the modern courts. The right of
appeal exists in both systems. Both are empowered to try
capital offenses, including treason, but in practice the modern
courts hear mostly civil cases. Although constitutionally
mandated, neither judiciary is truly independent. Executive
interference in the modern court system is rare in civil cases
but common in those of a political or security nature, which
usually come before the traditional courts.
The European court system consists of magistrate's courts, the
High Court, and the Supreme Court of Appeal. The President
appoints the Chief Justice of the High Court and, after
consultation with the judicial service commission, other court
justices. The courts are open to the public, and defendants
are charged publicly. Crowded dockets, however, can delay
serious cases from being heard for up to 4 years. In criminal
cases, the defendant waits in prison during the interval.
The traditional courts, which try over 90 percent of all
criminal cases, are the most accessible to the average
Malawian. Over 300 traditional courts, dispersed among
Malawi's 24 districts and 3 regions, hear several hundred
thousand civil and criminal cases each year. Traditional court
justices are appointed directly by the President, including to
the National Traditional Appeal Court. In practice, they are
drawn from the ranks of MCP officers and exercise their party
responsibilities concurrently. Police officials handle the
prosecution, and defendants conduct their own defense.
The executive branch seldom interferes in traditional court
cases involving customary (tribal) law but does so routinely in
political and security cases. The traditional courts were
designed by Orton Chirwa (the first Minister of Justice) to
handle small claims, family, and customary disputes in order to
accelerate the delivery of justice to Malawi's largely rural
and illiterate population.
Traditional courts were not empowered to try treason cases
until 1977 when President Banda sought to ensure the conviction
and subsec[uent execution of a secretary general of the Malawi
Congress Party who had allegedly plotted his overthrow.
Similarly, the President directed that Orton and Vera Chirwa be
tried by the traditional court in 1983 in which few, if any,
procedural safeguards are available. Banda subsequently
commuted the Chirwas' death sentences to life imprisonment.
Despite appeals from many human rights organizations, the
Chirwas' remained in prison at year's end, reportedly in poor
health. Orton Chirwa is now 73 years old.
The Forfeiture Act permits the Government to revoke the
property rights of those merely suspected of economic crimes,
such as illegal currency transactions. These revocations
sometimes have political overtones and have been heavily
weighted against the Asian community. However, the Act has not
been invoked in recent years, and in 1991 restitution of
certain properties seized earlier was made.
f . Arbitrary Interference with Privacy, Family, Home, or
Co r respondence
Police may enter houses of suspects at will under special entry
authority to conduct searches for incriminating evidence or
suspects. Telephones are routinely tapped, and an extensive
network of informers reports private statements and actions to
the Government. Authorities regularly open domestic and
international mail and sharply increased this practice in
1991. Malawi's security services feared the effects of
accelerating democratization trends in neighboring countries.
Malawian law permits the Government to designate certain
districts as "special areas" where citizens may be stopped,
questioned, and searched on the street. Most special area
districts are in the north. Although this has been an unused
statute in recent years, its residual effect has contributed to
the north's sense of disenf ranchisement.
«
Membership in the ruling Malawi Congress Party is not legally
mandatory, but it is frequently coerced, and membership is
expected of those who seek access to government services or
entrance to local markets, even babies carried on their
mothers ' backs.
Section 2 Respect for Civil Liberties, Including;
a. Freedom of Speech and Press
Free speech and press are severely circumscribed i Malawi. It
is an offense, punishable by 5 years' imprisonment, to publish
anything likely "to undermine the authority of, oc public
confidence in, the Government." It is punishable by life
imprisonment to send out of the country "false information"
which may be "harmful to the interests or good name of
Malawi." At least one journalist was arrested and held in 1991
under this provision. In practice, giving critical information
to foreign journalists can result in detention without trial.
Any discussion of Malawi's political future or speculation
about the President's age is prohibited, although the elderly
President's oft-predicted passing is now a common topic of
conversation. A few years ago, speculation about the eventual
succession would have guaranteed detention.
Malawi's two newspapers and government-owned radio exist
primarily to catalog the President's words and deeds.
Nevertheless, local media do not submit material to the
Government beforehand but exercise careful self-censorship.
Even so, journalists, including senior editors, have been
jailed for extended periods after overstepping undefined
boundaries. In July two editors of the daily newspaper were
detained by police for between 4 hours and 4 days when they
published an editorial that implied minor police corruption in
the traffic department. In the same month, the editor of a
monthly magazine was detained overnight when he published a
letter from the dean of the University of Malawi law school
that gave a legal interpretation of the country's strict dress
code that was contrary to the interpretation enforced by the
Inspector General of Police. The law school dean was also
briefly held.
Criticism of various government departments' efficiency does
appear in the newspapers and often in parliamentary debate.
While reporting on democratic tendencies in Malawi is taboo,
there was considerable print coverage, but no radio coverage,
of worldwide democratic developments during 1991, especially in
other parts of Africa. The multiparty movement in neighboring
Zambia received surprisingly impartial coverage.
The newly formed Journalists' Association of Malawi was
formally registered in 1991 and held a 1-week media workshop to
highlight the role of the press. The Association also
remonstrated with the Inspector General of Police when its
members were briefly incarcerated, a confrontation that would
have been inconceivable in Malawi only a few years ago. In
July the June issue of Africa South magazine was banned in
Malawi because it contained discussion of a report criticizing
widespread human rights violations.
Foreign journalists must request permission to enter Malawi and
must specify in advance the topics they intend to cover. They
are also asked to specify who they intend to interview. The
Government continues to permit some Western journalists to
visit Malawi.
Academic freedom is limited by the general restrictions on
speech and press. The long detentions of Professors Mapanje
and Machila, who were finally released in 1991, remind
university professors of the definite bounds to academic
inquiry.
b. Freedom of Peaceful Assembly and Association
Political meetings are not permitted outside the framework of
the Malawi Congress Party. Persons may be imprisoned if they
further the aims of an "unlawful society," defined as "any
group considered to be dangerous to the good government of the
republic." A gathering of three or more persons may be
construed as an unlawful assembly under Malawian law.
Individuals and organizations can and do associate freely
concerning nonpolitical matters.
c. Freedom of Religion
There is no state or preferred religion, and religious groups
generally may establish places of worship and train clergy.
However, religious groups are required to register with the
Government, and an informal presidential decree that no new
religious groups should be registered in Malawi has taken on
the force of law. The ban has served to prevent legitimate
religious groups, such as the Mormons, from establishing a
registered presence in Malawi.
Jehovah's Witnesses, whose religious convictions, inter alia,
prevent them from joining the MCP or any other political party,
have been banned since 1967. Relations between the Government
and the Witnesses remain tense and regularly elicit hostile
outbursts from senior officials. Several Jehovah's Witnesses
are imprisoned for their religious beliefs. In October some
local officials publicly criticized Mozambican refugees who
were openly proselytizing for the Jehovah's Witnesses faith.
Many of these refugees, it turned out, were originally
Malawians who had fled Malawi's persecution of the Jehovah's
Witnesses during the 1970's. However, credible reports
indicate that several hundred were forcibly repatriated to
Mozambique.
Religious publications, like others, may not criticize the
Government or the party. Most religious groups are free to
establish and maintain links with coreligionists in other
countries, and members are free to travel abroad.
Malawi's sizable Muslim minority (estimated at 20 percent of
the population) conducts its religion and builds mosques
freely. Foreign Islamic organizations have funded the latter
with no governmental interference.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Legal provisions exist for testricting movement of those
convicted of political or criminal offenses. Denial of
passports on political grounds is common. Credible evidence
suggested that SIS agents followed persons suspected of
opposition to the Government out of Malawi in 1991. Civil
servants and employees of state-owned enterprises must obtain
written permission to travel abroad, even on vacation, although
such clearance now appears to be routine.
Formal emigration is neither restricted nor encouraged.
However, Asian residents and citizens, while free to travel
within the country, must nominally reside and work in one of
four urban areas (Lilongwe, Zomba, Mzuzu, and Blantyre/Limbe).
In Lilongwe, a planned capital, they must also live within
certain neighborhoods. During 1991 the Government did not
strictly enforce those restrictions.
Malawi hosts the largest refugee population in Africa. Over
900,000 Mozambicans—more than 10 percent of Malawi's
population—are now located in rural areas in nearly half of
Malawi's 24 districts. Some refugees live in camps, but many
live within or adjacent to existing villages. In both cases,
their presence has increased deforestation and put pressure on
scarce arable land. The strain on Malawi's economy, as well as
its transportation and social services networks, has been
severe. More recently, security from cross-border attacks has
become a greater concern. Public discontent at the burden has
been rising at an alarming rate, but in 1991 President Banda
again reaffirmed Malawi's commitment to offer asylum to all who
are forced to flee Mozambique's brutal civil war.
There were credible reports that hundreds of refugees were
forcibly repatriated because they were members of the Jehovah's
Witnesses, a banned religious group. Voluntary repatriation
has been very limited. The Government has cooperated with the
United Nations High Commissioner for Refugees and other
international relief efforts.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Citizens of Malawi cannot change their national government
through democratic means. Major, and many minor, political
decisions are made by the President or his closest associates.
Opposition political parties are prohibited. In 1991 there
appeared to be emerging support at the grassroots level for a
multiparty movement, as some persons began to discuss more
openly a post-Banda political system.
The Malawi Congress Party structure provides for some choice
among candidates for party (every 3 years), parliamentary
(every 5 years), and other offices—all by secret ballot.
Nominees for political seats, however, are carefully selected
by the MCP and approved by the President. The National
Assembly, consisting of both elected and a few appointed
members, is mainly concerned with ratifying preordained
policy. Its independence and powers are broadly based in law
but highly circumscribed in practice.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Local nongovernmental human rights organizations are not
permitted. At best, human rights issues can be touched on
tangentially by the Malawi Law Society which, in recent years,
has been able to debate in public some aspects of existing law
with increasing candor. In November Justin Malewezi, the
nation's top civil servant and the government official most
closely involved with human rights issues, was fired.
Malewezi, an effective force for constructive change in Malawi,
had contributed to human rights reform, though his dismissal
seems not to be related to his work in that area. The
Government does not permit organizations such as the
International Committee of the Red Cross and Amnesty
International to visit prisons or conduct human rights
invest igat ions.
Section 5 Discrimination Based on Race, Sex, Religion, Language, or Social Status
Membership in the ruling party, the MCP, or its organs is not
open to Malawians of Asian or European descent. In addition
there are regional differences between the north and the rest
of Malawi. Northerners have experienced considerable
discrimination by the Government in the past, most recently in
1989, when President Banda lent his weight to a campaign that
resulted in many northerners losing jobs in the south and being
forced to return to their region or go into exile abroad.
Several of the most important political prisoners, including
Orton and Vera Chirwa, are from the northern region. Since
1990 the Government has made a concerted effort to downplay
regionalism as a domestic issue. Northerners continued to hold
important positions within the Government and Parliament, but
few are permitted to advance to high positions within the
police, the Government's primary instrument to enforce internal
security.
Asian residents, whether Malawian citizens or not, have been
compelled to transfer ownership of rural shops and trucking
businesses to ethnic Africans. Strict rules govern where
Asians may own property, although these were relaxed
considerably during 1991. Malawi's official government
hostess, C. Tamanda Kadzamira, has recently gone to
considerable lengths to draw Asian women into her new National
Women's Development Organization (CCAM) . Despite these
informal changes, many persons in the small but prosperous
Asian community of about 5,000 question their long-term future
in Malawi.
In Malawi women are ec[ual under the law, and tribal leadership
structures remain primarily matrilineal in the central and
southern regions of the country. However, in practice women do
not have opportunities equal to those of men. Historically,
most women have been unable to complete even a primary
education and are at a serious disadvantage in the job market.
The Government presently reserves for women 33 percent of the
places in the secondary school system, although the actual
number of attendees is less. The Government has also
cooperated closely with international donors seeking to enhance
educational opportunities for women at all levels, e.g., with a
U.S. -assisted $20 million program designed to improve the basic
education of girls.
In practice, women are also disadvantaged under the law through
ignorance. In 1991 the National Commission of Women in
Development, working with the CCAM and the Malawi Law Society,
held a well-publicized workshop and began work on the
publication and distribution of a bilingual handbook on women's
legal rights.
The Government is also slowly giving recognition to the
importance of women as agricultural producers, as approximately
70 percent of all smallholder farms and over 50 percent of
subsistence holdings are headed by women. When buying and
selling "saleable" property, men and women have equal rights.
However, with "customary" property (land in transition),
succession in the northern region reverts to male family
members, whereas succession in the southern region reverts to
female family members. The Ministry of Agriculture now has a
separate women's extension program specifically designed to
accommodate their needs. Women enjoy access to maternal health
services and to extension programs, but infant and child
mortality remain extremely high.
Malawi continues to maintain a strict dress code for women.
Pants and shorts are not permitted in public, and dress length
must be below the knees. In 1991 the police began a strict
enforcement of these rules; several women were arrested and
fined.
Malawi has no tradition of violence against women; however, a
few small ethnic groups continue to practice female
circumcision.
Section 6 Worker Rights
:
a. The Right of Association
Only nongovernment workers have the legal right to form and
join trade unions. Unions represent from 10 to 20 percent of
Malawi's small labor force in the money economy; most organized
wage workers are unskilled laborers on large agricultural
estates. Unions are required by law to affiliate with the
Trade Union Congress of Malawi (TUCM) . The TUCM, like both the
Employers Consultative Group and the Associated Chambers of
Commerce, is a private organization ostensibly independent of
the Malawi Congress Party, but in practice its activities are
highly circumscribed by the Government. Restrictive colonial
labor legislation has been subsumed largely intact into
Malawian law.
While technically legal, strikes are not tolerated in Malawi.
Ministry of Labor officers are quick to intervene at the first
hint of labor unrest. There were no efforts to strike in 1991.
The TUCM associates with international labor organizations and
is a member of the Organization of African Trade Union Unity
and the Southern African Trade Union Coordination Council which
is headquartered in Lilongwe.
b. The Right to Organize and Bargain Collectively
Workers have the legal ri^ht to organize, but the law does
little to restrict antiunion discrimination by employers.
Complaints are resolved by the Ministry of Labor. When
employees and employers cannot reach agreement on a labor
issue, a labor officer from the Ministry of Labor meets with
the two sides in an attempt to reach a consensus. This is
usually successful. The labor officer does not decide the
outcome himself.
Collective bargaining is protected by law, but in practice its
use is limited by stark market realities. Skilled workers are
in demand in Malawi and have enjoyed relative success when
negotiating contracts. However, unskilled workers are in
oversupply, and this holds down their wages. The Government
does not intervene overtly in the collective bargaining process.
Management-labor councils (called "work committees") mediate
labor issues at the workplace. There are standing managementlabor
councils in large industries and businesses. The
composition of these is generally half labor and half
management. Grievances of all kinds can be handled by these
committees (including wage issues) as long as they relate to
work at that particular place of employment. When wage
negotiations concern an entire industry nationwide, then the
Government involves itself in the discussions, and again all
parties work until a consensus is reached.
There are no export processing or free trade zones in Malawi.
c. Prohibition of Forced or Compulsory Labor
Forced labor, which was widely practiced during colonial times,
has never been formally outlawed, but it is opposed by the
Government and is not practiced.
d. Minimum Age for Employment of Children
The minimum working age is 14, but this applies only to the
small urban wage sector where it can be enforced by labor
inspectors from the Ministry of Labor. The law concerns young
workers throughout the country, but it is less easily enforced
in rural areas. Overall, enforcement is not considered to be
effective. Also, because there is no law providing compulsory
education for children, many children are available for daily
employment. In the large subsistence agriculture sector, where
most Malawians work, children help on family farms at a much
younger age. Many also work on plantations, where they are
paid substantially less than the legal minimum wage.
e. Acceptable Conditions of Work
Less than 15 percent of the work force is employed in the
formal wage sector. In May 1989, the Minimum Wage and
Conditions of Employment Act nearly doubled the minimum daily
wages in Malawi's three cities, but perhaps a quarter of the
work force receives less than the legal minimum wage because of
poor enforcement and because many workers are unaware they are
entitled to a minimum wage. The legal minimum wage is not
adequate for a decent living and is often supplemented by
additional employment. Minimum wages vary from urban to rural
areas. For those fortunate enough to hold paying jobs, wages
and working conditions are generally adequate to maintain
slightly better than a subsistence standard of living. Many
subsistence farmers supplement their earnings by working as
tenants on nearby estates. Labor laws address normal
employment practices but do not cover tenancy agreements, and
abuses are widespread.
The maximum workweek in Malawi is 48 hours or less . Workers
have Sundays and official holidays off from work or must be
paid overtime. Paid holidays and safety standards in the
workplace are required by law. However, enforcement of safety
standards by Ministry of Labor inspectors is erratic.
