67. Section 25 of the Constitution grants every person the right to education and stipulates that primary education shall consist of at least five years. This provision which establishes education as a right, falls short of the requirement in section 13 (f) of the Constitution which requires primary education to be both compulsory and free. There is therefore no maximum age stipulated for compulsory education.

61. The minimum age of employment for children is specified in the Employment of Women, Young Persons and Children Act. This Act distinguishes between a child and a young person. It describes a child as a person under the age of 12 years and prohibits employment of such child at night or in any public or private industrial undertaking. By implication the law permits employment of children below 12 years in other areas, like domestic work.

63. The law does not protect children of below the age of 12 years from regular employment. The emphasis is on protection from working at night and heavy tasks. There is therefore employment of young children in lighter work and in domestic work. The Act also allows employment of young children. […]

333. The relevant statute on child labour is the Employment of Children and Young Persons Act. The Act restricts the employment of children and specifies the contractual conditions for the employment of children. The Act provides that there should be no written contracts for children under 12 years. It also provides that a child must not be employed to work at night and that neither a child nor a young person must be employed in heavy work. The Act defines a child as a person under 12 years of age and a young person as a person between 12 and 14 years.

334. There are three exceptions to these restrictions. The first is that a child or a young person may work as long as the employment contract is not in written form. The second is that work in a family business is allowed. The last is that children and young persons are allowed to work in agriculture. However, the illegal child labour in tea and tobacco estates has been of concern to trade unions and educationists. Further, Malawi, in 1999 ratified the International Convention on the Prohibition and Elimination of the Worst Forms of Child Labour. The Act is consequently under review, coordinated by the Ministry of Labour.

64. The Constitution, under section 22, provides that the minimum legal age for marriage is 18 years for all persons. The Constitution further requires that persons between the age of 15 and 18 years should only marry with the consent of parents or guardians.

65. The constitutional provision differs from the provisions of the 1903 Marriage Act, which governs statutory marriages. Section 19 of the Marriage Act stipulates that a person under 21 years is a minor and can only enter into marriage with the written consent of his parents or guardians.

66. In practice, it is common in the rural areas of Southern and Central Regions for girls of age 15 years and below to enter into marriage. This is mainly due to the cultural practices prevailing in these two regions. For example, during initiation rites girls as young as 10 years are prepared for possible marriages. It is difficult to stop this practice, partly because the law does not expressly prohibit marriages of children below 15 years old. The Constitution merely states that the State should discourage such marriages.

343. The age of criminal responsibility for the child in Malawi is seven years. The Penal Code stipulates that any person under this age cannot be criminally liable for any act or omission. Although this is the legal age of criminal responsibility, it is felt that it is too low and that there is need to put the age up to between 10 and 12 years. In practice, however, there is no record of a child of such a young age being taken to court. Further, the Law Commission has taken this issue up and is to look at this age.