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