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National law and policies on minimum ages – Malawi

 

According to the CRC, laws and policies must be directed to the best interest of the child. This is especially so in provisions that aim to safeguard the child against exploitation or an early end to childhood, i.e. in the instances where children are most vulnerable and at risk. Yet such safeguards are often ignored and different areas of legislation found to clash with each other. What happens if the age for the end of compulsory education is 14 but the minimum age of employment is 12? Or vice versa? What if a girl can be married before school leaving age - will she then return to school? And who ensures schooling in prisons, when in reality education should protect children from incarceration?

 

 

 

 

With 192 parties to it, the Convention on the Rights of the Child (CRC) is the most widely ratified UN treaty. Each State Party must submit periodic reports to the Committee on the Rights of the Child, which uses this process to monitor State compliance with the treaty. The vast majority of the information on minimum ages presented on these pages is taken directly from such reports (occasionally, if these failed to include relevant information concerning minimum ages, other components of the reporting process - such as the Committee’s Concluding Observations - were consulted). States Parties’ reports constitute self-assessment by governments and are therefore authoritative sources, emanating directly from those empowered to make decisions. Using this type of sources also permits a range of actors to hold governments accountable for the standards which they report under the CRC. The sections of these reports have been reproduced faithfully, and readers are encouraged to make use of the full original text, available here.

 

Individual country reports are often written by diverse parts of the government, and frequently run to more than 100 pages. Moreover, within some states’ legal systems there are various recognised sources of law, which frequently generate conflicting minimum ages. Distilling precise numbers out of such documents is therefore a precarious task. While we would encourage cross-country comparison, we would also stress the danger that those countries with a more honest engagement with the reporting process might come off worse when compared with those which would mis-represent the degree of compliance, whether wilfully or not. For a full explanation of the principles that guided us in our analysis, please visit the introductory pages here.

 

Sources:
2nd periodic report: CRC/C/MWI/2, 17 July 2008
Initial report: CRC/C/8/Add.43, 26 June 2001
 
Minimum age for the end of compulsory education
From 2nd report
250. Primary education remains voluntary as the country has not yet developed a policy to make it compulsory. However, submissions advocating compulsory primary education have been made to the Constitutional Review programme and are being considered by the Law Commission.
From initial report
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
 
Minimum age for admission to employment
From 2nd report
89. The Employment Act (2000) and Labour Relations Act (1996) both prohibit child labour in compliance with the relevant ILO Convention. The minimum age for employment is 14 years.
316. The Employment Act specifically prohibits the employment of persons under the age of fourteen from working in any public or private agricultural, industrial or non-industrial undertaking, but excludes work done at a vocational technical school or any other training institution. Children between the ages of fourteen and eighteen are prohibited from work that is likely to be harmful to their health, safety, education, morals or their development as well as work that is prejudicial to their attendance at school or vocational training.
From initial report
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.
 
Minimum age for marriage
From 2nd report
12. […] the Constitution […] is unclear as to the absolute minimum age for marriage. Under subsection (6) of section 22, a person of eighteen years of age may enter into marriage without seeking the consent of his or her parents. In addition, under subsection (7) of section 22, persons aged between fifteen and eighteen years must obtain consent from parents before entering into marriage. Under subsection (8) of the same section, the State is obliged to “discourage” marriages where either party is under the age of fifteen years. […] In addition, where both parties or either one of them is under fifteen, the State can only discourage and has no powers to forbid the marriage.
From initial report
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.
 
Minimum age for criminal responsibility
From 2nd report
87. There has been a proposal to raise the age of criminal responsibility from seven to ten in the proposed amendment of the Penal Code.
From initial report
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.
 
Sources:
2nd periodic report: CRC/C/MWI/2, 17 July 2008
Initial report: CRC/C/8/Add.43, 26 June 2001