Updated: Aug 25, 2020
A landlocked country in the south-eastern part of Africa, Malawi remains one of the poorest nations in the world. While the economic problems faced by the indigenous populace and those trafficked from and into the country are not newfound, COVID-19 has seemingly aggravated the issue. The real GDP of the country is expected to shrink by 3.2% in 2020 at a time when the country is already in a state of crisis. It has been consistently in news for being a transit country for victims of trafficking who are primarily taken to other African countries, including South Africa, Tanzania and to other parts of Europe.
This article elaborates upon the domestic and international legal framework that Malawi is governed by and the human rights violations that take place despite the existing legal framework on trafficking. It also makes an attempt to highlight the reasons for the inefficacy of laws and suggests a way forward to recuperate from the existing conditions.
Malawi- The Hub of Trafficking: Understanding Reasons
Malawi could quite possibly be termed as the hub of trafficking. Not only does Malawi serve as a transit country for sex trafficking, but it also facilitates the indigenous trafficking of adults and children. The primary reason behind such a rampant and unregulated activity is the pitiable economic condition in the country. Present data suggest that 70 per cent of the population in Malawi lives below the international poverty line of US$1.90 and 89% of the workforce in Malawi are employed in the informal economy. Considering the difficulty in securing employment, and the high demand for sex prostitution and slavery, a large part of the native population of the country is found involved in the trafficking rackets.
Secondly, the country shows a shockingly high rate of corruption. This leads us to an obvious conclusion. Unchecked and rampant abuse of power and money is bound to fetch luring results to the master-minds behind such trafficking rackets. Importantly, the organized Crime Index of the last year which rates Malawi as a low criminality country warns us of the potentialities of organized crimes in the country.
Third and a very crucial reason behind such abuse remains, ignorance, unawareness and lack of education, that puts these individuals at a disadvantage. Despite the Right to Education being enshrined in their constitution, children, especially girls are witnessed dropping out of the schools, primarily because of the low quality of education provided. Poor education amalgamated with unawareness makes them prime targets of trafficking rackets.
Lastly, the most common reason for trafficking in Malawi is clearly the high demand for prostitution. This has resulted in rampant sexual exploitation, the victims of which are predominantly women and girls.
The Legal Mechanism in Place: Efficacious and Effective?
a)- Domestic Legislations to combat trafficking:
The primary law that seeks to govern forced labour and trafficking in persons in the country is Trafficking in Persons Act, 2015 (hereinafter “TIP Act”). Not only does the law prohibit labour and sex trafficking, but it also does so by prescribing punishments up to the death penalty, without the option of fines. The legislation was enacted by the government of Malawi to fulfil the country’s obligations and commitments to the United Nations Convention against Transnational Organized Crime(hereinafter “UNTOC”). Even before the TIP Act was formulated, the criminal justice system of Malawi used tools and legislations like the Penal Code, the child, Protection and Justice Act of 2010 and the Employment Act of 2000, to tackle issues with respect to trafficking.
Section 17 to 20 of the Constitution of Malawi, are provisions that categorize Trafficking as an offence involving dishonesty and moral turpitude. Any individual found involved in the aforesaid offence would consequently render the individual ineligible to work with children or would lead to him being sentenced to prison for a period of five years. Section 27 prohibits slavery and the slave trade. It holds and provides that no one should be subject to forced or tied labour amounting to servitude. These constitutional precepts are reflected in legislation like The Marriage, Divorce and Family Relations Act of 2015 and the Electronic Transactions and Cyber Security Act of 2016.
From the aforementioned provisions, an important inference that can be reached is that the domestic legislative framework of the country comes equipped with protections aimed to further the constitutional precepts. However, based on statistics and reported ground realities, the fact that there have been gross human rights violations cannot be refuted. The instances of these violations are too many to be recounted in words.
Despite the guaranteed protection against forced slavery(Art. 4, UDHR), the freedom and the basic liberty of the victim involved in the racket are mercilessly curtailed. The unregulated and illegal market that blatantly commodifies human beings inflicts a severe blow to the dignity and free will of the individual. With essentially no or meagre chances at a decent living, individuals are forced to give in to practices where they might be subjected to exploitation and oppression. Reputed NGOs working with sex workers report that police officers often demand sexual favours from sex workers under the threat of arrest. If that be so, undeniably, women and young children are left to the mercy of these policemen or like officials who themselves end up violating the dignity and being of these oppressed victims.
The conditions created because of the outbreak of the pandemic have further exacerbated the cracks in the mechanism to ensure the upkeep of health, leaves essentially no room for victims of trafficking. Ironically, yet again, as far as the legal domestic or global mechanism is concerned, no stone seems to have been left unturned to insulate the country and secure the rights against health hazards(Art. 25, UDHR). However, considering the lackadaisical attitude of the implementing agencies, the question that remains unanswered is concerning the efficacy of these ‘protections.’
It is an undisputed fact that women and young girls are more susceptible to oppression and sexual exploitation in Malawi. The culture of the country encourages the disparity in the status of a male and female in society, much to the dismay of the defenseless female populace. This is a clear and blatant violation not only of the Right to Life (Art. 3, UDHR) and Dignity (Art. 1, UDHR) but also of the Right to Equality(Art. 7, UDHR) that an individual deserves.
An extremely crucial right that is often disregarded is that of according legal aid to every individual irrespective of their citizenship status. Predictably, while the law provides for such a right under the TIP Act, efforts to give effect to such a right are hardly visible.
To ensure the effective curtailment of illegal trafficking and exploitation of persons, the Government of Malawi came up with the Malawi National Plan of Action against Trafficking of Persons. This Plan Action has been formulated for a period of 5 years- 2017 to 2022. Mounting instances of trafficking in the year 2020 is enough evidence that something crucial is amiss in this plan of action.
b)- The global legal framework to counter-trafficking:
Malawi acceded to the UNTOC and Palermo protocols in the year 2005. Not only did the ratification take place on paper, but the Government of Malawi also made efforts to adopt the protocols and mandates which eventually lead to the formulation of the TIP Act of 2015. The United Nations Office on Drugs and Crimes(hereinafter “UNODC”), in the past few through its Global programme that works against trafficking, has made attempts to provide aid to Malawi to combat the issue. In recent scrutiny conducted by UNODC to examine as to whether the enforcement and protection officers comply and follow correct procedures with respect to the identification and rescue of victims, the implementation agencies were found lacking. This finding points towards a serious need for re-examination and reassessment of the implementation mechanism in place.
As far as Child Protection laws are concerned, Malawi is guided by the Stockholm Agenda for Action against Commercial Sexual Exploitation of Children and the detailed framework that accompanies the former. Other initiatives and organizations that Malawi signed up to counter-trafficking include ILO Convention on the Worst Forms of Child Labour in 1999, The Convention on the Elimination of all Forms of Discrimination against women in 1987, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
A cursory glance at the number of International conventions Malawi is a party to is enough to misguide one into believing that Malawi has successfully insulated itself from the possibility of human rights violations. However, the severity of the blatant disregard of basic human rights is evident by the categorization of Malawi as a tier 2 country in the Trafficking in Persons Report, 2019.
Why is there Inefficacy in The Legal Framework?
Despite there being a plethora of laws and regulations, Malawi has not been successful in combating trafficking and exploitation. It is imperative to understand that the existence of laws, does not guarantee a crimeless society. What is thus required is efficacy and compliance. Malawi comes equipped with evils like corruption, ignorance, and unawareness. Unavailability of data is another factor that contributes significantly to the futility of these laws. Without accurate data that takes into account, the target population, laws, and policies formulated cannot be efficacious. Even Malawi has acknowledged this gap in information which in itself proves the need for an effective mechanism to collect error-free data.
Reportedly, around 142 victims of trafficking were identified and rescued which is not a significant improvement from the preceding few years. Certainly, the government is not equipped with the resources, both financial and legal to identify the victims and provide them with adequate protection. The TIP Act mandated that there be a fund created to support victims in terms of care and the course of court proceedings. However, the fact that no budget was allocated for the fund last year, proves how empty and futile such provisions are. Lack of effective sensitization and awareness leaves the victims of such abuse and exploitation crippled and helpless.
Need for Effective International Intervention: The Way Forward
Considering how transnational crimes have been on the rise, it becomes imperative for Malawi to look into alternatives for a stronger counter-trafficking network. A strong counter-trafficking network due to the deplorable economic conditions in the country is not something that the country would be able to manage on its own. Vigilant and effective International support would ensure stealthier movement and better co-ordination. As far as economic aid is concerned, it is recommended that an impartial international body be constituted to monitor the allocation and useful utilization of economic resources and funds so that help is meted out to those who need it.
More often than not, victims of trafficking suffer because of a lack of resources and insufficient procedural laws. It becomes imperative for International Organizations to keep a check on effective translation of international law commitments into domestic laws. Sensitization along with rehabilitation and protection of victims after careful identification are areas where the government has failed. Without a doubt, areas like these require international support. Further, activities like trafficking and prostitution thrive because of twin market forces of demand and supply. Unless demand is reduced, supply would continue at the required rate.
Clearly, the way forward is difficult but not impossible.
Title Image Source: Clickondetroit
The article has been written by Stuti Bhargava and Deepti Shinde who are in their Penultimate year at National Law University, Jodhpur (NLUJ). They take interest in understanding the intersection and relationship of law and society as well as the facets of Criminal Law.