List of issues prepared in the absence of the initial report of Malawi Constitutional and legal framework within which the Covenant is implemented (art. 2) 1. Please explain whether the Covenant can be directly invoked and given effect by courts, tribunals and administrative authorities, in line with the May 2007 ruling of the Malawi Supreme Court of Appeal? If so, please provide examples of such cases. What measures have been taken to raise awareness about the Covenant among public officials and State agents, in particular through training of judges, lawyers and law enforcement officers? (1) Whether the Covenant can be directly invoked and given effect by courts (a) Section 211(1) of the Constitution provides that any international agreement ratified by an Act of Parliament shall form part of the law of Malawi if so provided for in the Act of Parliament ratifying the agreement. International agreements entered into before the Constitution came into force also form part of the law of Malawi. Malawi ratified the International Covenant on Civil and Political Rights on 22 December, 1993. The Covenant, therefore, forms part of the law of Malawi. (b) Malawi is a dualist State as such, no international Convention can have the force of law in the country before incorporation into the GE.11- domestic laws. The Covenant cannot, therefore, be directly invoked. However, Chapter IV of the Constitution provides for human rights and section 10 provides that in interpreting all laws, the provisions of the Constitution shall be regarded as the supreme arbiter and ultimate source of authority. In that regard, courts, tribunals and administrative authorities do consider the provisions of the Covenant in applying the law to ensure conformity with international law and obligations under the Covenant. (c) In the case of Charles Kafantayeni and others (Constitutional Case No. 12 of 2005), the court took into account similar provisions of the Covenant enshrined in the Constitution in arriving at its decision. In the case of Adoption of Children Act chapter 26:01 of the laws of Malawi and Chifundo James, (MSCA Adoption Appeal No. 29 of 2009), the court stated that international agreements and customary international law form part of the law of Malawi subject to the provisions of section 211 of the Constitution. Accordingly, courts of law can give effect to the provisions of the Convention in so far as they are not found to be inconsistent with the provisions of the Constitution. (2) Awareness of the Convention by public officials etc (a) The majority public officers working in the justice sector and administration are conversant with the provisions of the Covenant and take a human rights based approach in the work they do. (b) From time to time, legal and judicial officers undergo training in the application of international human rights 2 law as part of the Government’s efforts in promoting human rights in Malawi. For example, under the Government/EU Rule of Law Programme, the Government through the Ministry of Justice has trained lawyers, the Police and judicial officers in human rights. Human rights have been further mainstreamed in the work of Law enforcement agencies. (c) Efforts continue to be made to train Police Officers to take a human rights based approach in the handling of cases. Non-discrimination, equality between men and women (arts. 2, para. 1, 3 and 26) 3. Please provide information on measures taken to protect persons from discrimination and violence based on sexual orientation. Please report on the number of persons that have been attacked since 2005 based on their sexual orientation, including by police or other security forces, and specify whether perpetrators have systematically been prosecuted and punished. Are legislative amendments foreseen to de-criminalize homosexuality? (1) Measures against discrimination and violence based on sexual orientation (a) Section 20 of the Constitution guarantees equality of persons and prohibits discrimination in any form, and all persons are, under any law, guaranteed equal and effective protection against any discrimination on any grounds or any status. (b) Issues of discrimination based on sexual orientation have not been reported. The vast majority of society has not accepted homosexuality and homosexuality is not 3 practiced in the open. Therefore it is very unlikely that cases of discrimination and violence based on sexual orientation would be reported. (c) In the highly publicized case of Republic versus Tiwonge Chimbalanga and Steven Monjeza (Criminal Case number 359 OF 2009) two male individuals were tried and convicted of the offence of indecent practices between males. They were never attacked for their sexual orientation and were subsequently pardoned. (2) Attacks based on sexual orientation There are no official records of cases of violence based on sexual orientation. (3) Systematic prosecutions (a) There are no specific measures or policies established by the Government to target people based on their sexual orientation. The Government respects right to privacy of its citizens. However, the Penal Code (Chapter 7:01 of the Laws of Malawi) criminalizes acts against the order of nature, and acts considered to be indecent. Homosexuality is regarded as indecent and against the order of nature. In that regard, homosexuality is illegal. Any person who commits acts against the order of nature is prosecuted in accordance with the law. (b) In 2009, two male individuals, Tiwonge Chimbalanga and Steven Muonjeza were arrested, tried and sentenced to fourteen years imprisonment on conviction of indecent practices between males. The President subsequently pardoned them.. (See Republic versus Steven Muonjeza Soko and Tiwonge Chimbalanga Kachepa Criminal case 4 No. 359 of 2009, http//www.scribd.com/doc/31700824/Judgement- against-Malawi couple) this was an unprecedented case and the State prosecuted them to uphold the law and protect public morals, which are held in high esteem by the society. (c) The Malawi Law Commission has had occasion to consider the issue of homosexuality and has recommended to Government that this matter does not receive the support of the people of Malawi. Government, has in relation to homosexuality, taken into account public views in carrying out its constitutional obligation under section 13 (m) which provides that the Government, in adopting and implementing policies, should promote law and order and respect for society. (4) Legislative Amendments to de-criminalize homosexuality The Government has an obligation under s. 13 of the Constitution, to actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at advancing national interests. Since acts of homosexuality are against public morals of the Malawi Nation, there are no legislative amendments foreseen in the near future as the law as currently contained in the Statute Books on the matter is adequate. The Government will continue to listen to the voices of its people on this matter. In the meantime, the Government has no intentions whatsoever to decriminalise homosexuality. 4. Please provide information on measures taken, including legislative steps, to: (1) prevent a deceased husband’s family from illegally taking the widow’s estate; (2) protect a widow from forced sex with an in-law as part of a “sexual cleansing” ritual following her 5 husband’s death; and (3) combat the alleged practice of the widow being considered as part of the “inheritance” by a brother-in-law or other male relative. (1) Measures taken to prevent property grabbing (a) The Government is aware of cases where some individuals have grabbed intestate property especially from a surviving spouse, in most cases widows and their children. In order to address this problem, Malawi through comprehensive legal reform led by the Malawi Law Commission continues to review her domestic laws and practices to, firstly, bring them in line with the Constitution as well as international human rights instruments to which she is a party, and the broader international law. This is an ongoing process. The Ministry of Gender also conducts civic awareness programmes addressing issues of property grabbing (b) The Deceased Estates (Wills and Inheritance Protection) Act, which repealed the Wills and Inheritance Act, was passed by Parliament in July, 2011. The Act protects the immediate family and the surviving spouse and children and clearly spells out the beneficiaries and criteria for allocating intestate property. A person, who not being entitled thereto under a will or upon intestacy takes possession of property which occasions or is likely to occasion hardship to a person who is entitled to the property commits an offence and on conviction is liable to a fine of K1, 000,000.00. However, although the Act provides for the offence of property grabbing prosecution of cases of this nature remains a challenge. Reports of property grabbing have been made to the Police. However, prosecution is rarely done as this is perceived to be a family matter. Most cases are left to be mediated between family members. The issue of property grabbing is being 6 mainstreamed in the curricula of the Police training schools so that cases of such nature can be duly prosecuted. (2) Sexual Cleansing and inheritance of widows Government is aware of the existence of these practices and in collaboration with traditional leaders, religious groups and the civil society, has embarked on civic education on the dangers of these practices. It is pleasing to note that this initiative has started yielding results as some traditional leaders have now started coming forward to discourage their subjects from conducting some of these dangerous practices. Challenges still remain as trying to change people’s customs is a long process but Government is determined to ensure that these practices are stopped at all levels of society. 4. Please provide information on when new draft bills on marriage, divorce and family relations, estates of deceased persons (Wills, Protection and Inheritance), and gender equality will be presented to the National Assembly.