Malawi

Paragraph 261

The relevant section of the Chapter of the Constitution of Malawi which relates to “Protection of Fundamental Rights and Freedoms of the Individual” (Chapter II, section 14) provides as follows:

Protection from slavery and forced labour

• No person shall be held in slavery or servitude.
• No person shall be required to perform forced labour.
• For the purposes of this section, the expression ‘forced labour’ does not include:
  1. Any labour required in consequence of the sentene or order of a court;
  2. Labour required of any person while he is lawfully detained that, though not required in consequence of a sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained;
  3. Any labour required of a member of a disciplined force in pursuance of his duties as such or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any labour that that person is required by law to perform in place of such service;
  4. Any labour required during any period when Malawi is at war or a declaration of emergency under section 26 of this Constitution is in force or in the event of any other emergency or calamity that threatens the life and well-being of the community, to the extent that the requiring of such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that emergency or calamity, for the purpose of dealing with that situation; or
  5. Any labour reasonably required as part of reasonable and normal communal or other civic obligations.

Paragraph 262

This Constitution came into force on 6 July 1964 and affirms the previous position in law which had already been affirmed by the Affirmation of the Abolition of Slavery Ordinance enacted in 1930.

Various provisions of the Penal Code of Malawi punish acts relating to “slavery”, as defined in this questionnaire. In so far as “servile status” is concerned, it is an offence unlawfully to confine any person or to compel any person to labour against his will.

267. Any person who imports, removes, buys, sells, or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, is guilty of a felony, and is liable to imprisonment for seven years.
268. Any person who habitually imports, removes, buys, sells, traffics or deals in slaves is guilty of a felony, and is liable to imprisonment for ten years.

269. Any person who unlawfully compels any person to labour against the will of that person is guilty of a misdemeanour.

Article 12: constitutional principles

This Constitution is founded upon the following underlying principles:

1. The inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.

Article 18: liberty

Every person has the right to personal liberty.

Article 19: human dignity and personal freedoms

1. The dignity of all persons shall be inviolable.
2. No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.
3. Subject to this Constitution, every person shall have the right to freedom and security of person, which shall include the right not to be –
4. detained without trial;
5. detained solely by reason of his or her political or other opinions; or
6. imprisoned for inability to fulfil contractual obligations.

Article 22: family and marriage

2. Each member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation.
3. All men and women have the right to marry and found a family. 4. No person shall be forced to enter into marriage.
4. Sub-sections (3) and (4) shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation.
5. No person over the age of eighteen years shall be prevented from entering into marriage.
6. For persons between the age of fifteen and eighteen years a marriage shall only be entered into with the consent of their parents or guardians.
7. The State shall actually discourage marriage between persons where either of them is under the age of fifteen years.

Article 23: rights of children

4. Children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to –
5. be hazardous;
6. interfere with their education; or
7. be harmful to their health or to their physical, mental or spiritual or social development.
8. For purposes of this section, children shall be persons under sixteen years of age

Article 27: slavery, servitude and forced labour

1. No person shall be held in slavery or servitude.
2. Slavery and the slave trade are prohibited.
3. No person shall be subject to forced labour.
4. No person shall be subject to tied labour that amounts to servitude.

Article 31: labour

1. Every person shall have the right to fair and safe labour practices and to fair remuneration.
2. All persons shall have the right to form and join trade unions or not to form or join trade unions.
3. Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.
4. The State shall take measures to ensure the right to withdraw labour.

Article 39: freedom of movement and residence

1. Every person shall have the right of freedom of movement and residence within the borders of Malawi.
2. Every person shall have the right to leave the Republic and to return to it.

Article 44: limitations on rights

1. There shall be no derogation, restrictions or limitation with regard to:
2. the right to life;
3. the prohibition of torture and cruel, inhuman or degrading treatment or punishment;
4. the prohibition of genocide;
5. the prohibition of slavery, the slave trade and slave-like practices; e. the prohibition of imprisonment for failure to meet contractual obligations;
6. the prohibition on retrospective criminalization and the retrospective imposition of greater penalties for criminal acts;
7. the right to equality and recognition before the law;
8. the right to freedom of conscience, belief, thought and religion and to academic freedom; or

i. the right to habeas corpus.

CONSTITUTION OF THE REPUBLIC OF MALAWI 1994 (REV. 1999) (PDF)

Article 140: Procuration

Any person who—

(a) procures or attempts to procure any girl or woman under the age of twenty-one years to have unlawful carnal connexion, either in Malawi or elsewhere, with any other person or persons; or

(b) procures or attempts to procure any woman or girl to become, either in Malawi or elsewhere, a common prostitute; or

(c) procures or attempts to procure any woman or girl to leave Malawi with intent that she may become an inmate of or frequent a brother elsewhere; or

(d) procures or attempts to procure any woman or girl to leave her usual place of abode in Malawi with intent that she may, for the purpose of prostitution, become an inmate or frequent a brothel either in the Republic or elsewhere,

shall be guilty of a misdemeanour and, if a male person, may, at the discretion of the court, and in addition to any term of imprisonment awarded in respect of the said offence shall be sentenced to corporal punishment: Provided that no person shall be convicted of any offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused.

Article 142: House-holder, etc., permitting defilement of girl under thirteen years of age on his premises

Any person who, being the owner or occupier of premises or having or acting or assisting in the management or control thereof, induces or knowingly suffers any girl under the age of thirteen years to resort to or be upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, shall be guilty of a felony, and shall be liable to imprisonment for five years: Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court or jury before whom the charge shall be brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

Article 143: Detention with intent or in brothel

Any person who detains any woman or girl against her will—

(a) in or upon any premises with intent that she may be unlawfully and carnally known by any man, whether any particular man or generally; or

(b) in any brothel;

Shall be guilty of a misdemeanour.

Constructive detention by withholding clothes When a woman or girl is in or upon any premises for the purpose of having any unlawful carnal connexion, or is in any brothel, a person shall be deemed to detain such woman or girl in or upon such premises or in such brothel, if, with intent to compel or induce her to remain in or upon such premises or in such brothel, such persons withholds from such woman or girl any wearing apparel or other property belong to her, or where wearing apparel has been lent or otherwise supplied to such woman or girl by or by the directions of such person, such person threatens such woman or girl with legal proceedings if she takes away with her the wearing apparel so lent or supplied. No legal proceedings, whether civil or criminal, shall be taken against any such woman or girl for taking away or being found in possession of any such wearing apparel as was necessary to enable her to leave such premises or brothel.

Article 145: Male person living on earnings of prostitution or persistently soliciting

(1) Every male person who

(a) knowingly lives wholly or in part on the earnings of prostitution; or

(b) in any public place persistently solicits of importunes for immoral purposes,

Shall be guilty of a misdemeanour. In the case of a second or subsequent conviction under this section the court may, in addition to any term of imprisonment awarded, sentence the offender to corporal punishment.

(2) If it is made to appear to a magistrate by information on oath that there is reason to suspect that there is reason to suspect that any house of any part of a house is used by a woman or girl for purposes of prostitution, and that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, the magistrate may issue a warrant authorizing any police officer to enter and search the house and to arrest that person.

(3) Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person or generally, he shall unless he shall satisfy the court to the contrary be deemed to be knowingly living on the earnings of prostitution.

Article 146: Woman aiding, etc., for gain prostitution of another woman

Every woman who knowingly lives wholly or in part of the earning so prostitution, or who is proved to have, for the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally, shall be guilty of a misdemeanour.

Article 147: Brothels

Any person who keeps a house, room, set of rooms, or place of any kind whatsoever for purposes of prostitution shall be guilty of a misdemeanour.

Article 257: Definition of kidnapping from the Republic

Any person who conveys any person beyond the limits of the Republic without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Malawi.

Article 259: Definition of abduction

Any person who by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Article 262: Kidnapping or abducting with intent to confine person

Any person who kidnaps or abducts any persons with intent to cause that person to be secretly and wrongfully confined, shall be guilty of a felony, and shall be liable to imprisonment for seven years. 263. Kidnapping or abducting in order to subject person to grievous harm, slavery, etc. Any person who kidnaps of abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of shall be guilty of a felony and shall be liable to imprisonment for ten years.

Article 263: Kidnapping or abducting in order to subject person to grievous harm, slavery, etc.

Any person who kidnaps of abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of shall be guilty of a felony and shall be liable to imprisonment for ten years.

Article 264: Wrongfully concealing or keeping in confinement kidnapped or abducted person

Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be guilty of a felony and shall be punished in the same manner as if he and kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement. 265. Kidnapping or abducting child under fourteen years with intent to steal from its person Any person who kidnaps or abducts any child under the age of fourteen years with the intention of taking dishonestly any movable property from the person of such child, shall be guilty of a felony and shall be liable to imprisonment for seven years. 266. Punishment for wrongful confinement Whoever wrongfully confines any person shall be guilty of a misdemeanour and shall be liable to a fine of £700 or to imprisonment for five years.

Article 266: Punishment for wrongful confinement

Whoever wrongfully confines any person shall be guilty of a misdemeanour and shall be liable to a fine of £700 or to imprisonment for five years.

Article 267: Buying or disposing of any person as a slave

Any person who imports, exports, removes, buys, sells, or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be guilty of a felony, and shall be liable to imprisonment for seven years.

Article 268: Habitual dealing in slaves

Any person who habitually imports, exports, removes, buys, sells traffics or deals in slaves shall be guilty of a felony, and shall be liable to imprisonment for ten years.

Article 269: Unlawful compulsory labour

Any person who unlawfully compels any person to labour against the will of that person shall be guilty of a misdemeanour.

Article 3. Interpretation

In this Act, unless the context otherwise requires –

“forced labour” means any work or service that is exacted from

any person under the threat of any penalty and is not offered

voluntarily, but does not include–

(a) any compulsory military service or work, of a purely military character;

(b) any work or service that forms part of the normal communal or civil obligations of citizens of Malawi;

(c) any work or service exacted from a person as a consequence of a conviction by any court:

Provided the person is not hired, by or placed al the disposal of a private individual, company or association and the work or service is carried out under the supervision and control of a public authority;

(d) any work or service exacted in emergency situations where the life or well being of the whole or part of the population is endangered, but only to the extent that the requiring of such labour is reasonably justifiable, in the circumstances; or

(e) minor communal services of a kind performed by members of the community in the direct interest of the community;

Provided that the members of the community have been

consulted concerning the need for such services;

Article 4. Prohibition against forced labour

(1) No person shall be required to perform forced labour.

(2) Any person who exacts or imposes forced labour or causes or permits forced labour shall be guilty of an offence and liable to a fine of K 10,000 and to imprisonment for two years.

EXPLOYMENT ACT 2000 (PDF)

Section 2. Interpretation

In this Act, unless the context otherwise requires –

“exploitation” includes –

(a) forced labour or any extraction of work or services from a person

(b) the forced participation of a person in all forms of commercial sexual activity such as prostitution, sexually-explicit performance, or in the production of pornography

(c) the removal of body parts or the extraction of organs or tissue; or

(d) any other practice in terms of which it cannot be said that the person participated willingly

“trafficking in persons” means recruiting, transporting, transferring, harbouring, receiving or obtaining another person, within or beyond the territory of Malawi, through —

(a) threats or use of force or coercion;

(b) abduction;

(c) fraud or deception;

(d) abuse or threats of abuse of power or position;

(e) abuse or threats of abuse of position of vulnerability;

(f) abuse or threats of abuse of the law or legal process;

(g) giving or receiving of payments to obtain consent of a person having control of that other person, for the purpose of exploitation of that person.

Section 14. Trafficking in persons

(1) A person who trafficks another person commits the offence termed trafficking in persons and shall, upon conviction, be liable to imprisonment for fourteen years without the option of a fine.

(2) The consent of a trafficked person is immaterial where any of the means set out in section 2 have been used.

Section 15. Trafficking in children

(1) Notwithstanding section 15, a person who trafficks a child, commits an offence termed trafficking in children and shall, upon conviction, be liable to imprisonment for twenty-one years without the option of a fine.

(2) It is immaterial that at the time of commission of trafficking in children, the means set out in section 2 with respect to trafficking in persons were use or the child consented to the commission of the offence.

Section 16. Aggravated form of trafficking

(1) An offence of trafficking in persons or trafficking in children is deemed to be aggravated if committed in any of the following circumstances—

(a) the judicial processes of adoption, fosterage, guardianship or wardship have been used to recruit a child;

(b) the accused is a relative of the trafficked person;

(c) the trafficked person is of unsound mind;

(d) the offence is committed by an organized criminal group;

(e) the offence is committed by a public servant, a religious leader, a traditional leader or any person acting in an official capacity in the exercise of his duties;

(f) the offence is committed by a person purporting to act, in the exercise of an official duty where such official acts in abuse of authority or moral ascendancy;

(g) the offence is committed for the purpose of removing body parts or extracting, tissue or organs;

(h) on occasion of the commission of the offence the trafficked person—

(i) dies;

(ii) develops a mental condition;

(iii) becomes pregnant or is forced to terminate a

pregnancy;

(iv) suffers mutilation, disfigurement or permanent bodily injury; or

(v) is exposed to any other substantial health risk.

(2) A person who commits the offence of trafficking in persons or trafficking in children in any of the circumstances in subsection (1), shall, upon conviction, be liable to imprisonment for life without the option of a fine.

Section 17. Trafficking in persons an offence involving dishonesty and moral turpitude

The offence of trafficking in persons or trafficking in children constitutes an offence of moral turpitude for the purposes of sections 51, 80 and 94 of the Constitution.

Section 20. Benefitting from exploitation of trafficked persons

A person who intentionally benefits from the exploitation of a trafficked person or causes or enables another person to benefit from exploitation of a trafficked person, commits an offence and shall, upon conviction, be liable to imprisonment for five years.

Section 21. Aiding or abetting trafficking in persons

(1) Where an offence under this Act is committed, each of the following persons is deemed to have taken part in the commission of the offence and may be charged and convicted with the actual commission of the offence—

(a) a person who attempts to do the act or to make the omission which constitutes the offence;

(b) a person who does or omits to do any act for the purpose of aiding or enabling another person to commit the offences;

(c) a person who aids or abets another person to commit the offence;

(d) a person who counsels or procures any other person to commit the offence; or

(e) a person who being an employee or agent, acted in employment, or under instructions.

(2) A conviction of aiding or abetting the commission of any offence under this Act entails the same consequences in all respects as a conviction of committing the offence.

(3) Any person who procures another to do or commit to do any act of such nature that if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission and he may be charged with himself doing the act or making the omission.

as soon as is practicable, report this to the Police.

Section 25. Other acts that promote or facilitate trafficking

A person who for the purpose of the promotion of trafficking in persons and child trafficking, intentionally—

(a) leases or subleases, uses or allows to be used any house, building or establishment;

(b) produces, prints, broadcasts or distributes by any means including the use of information technology or the internet, any brochure, flyer or any other communication material that promotes trafficking in persons or children;

(c) assists in misrepresentation or fraud for the purposes of procuring or facilitating the acquisition of necessary exit documents from the Department of Immigration for the purposes of trafficking in persons or children;

(d) facilitates exit from or entry into Malawi, a person who is in possession of unissued, tampered or fraudulent travel documents for the purpose of trafficking in persons or children;

(e) confiscates, withholds or destroys the passport, travelling documents or personal documents which belong to a trafficked person for the purposes of furthering trafficking in persons or children;

(f) prevents a trafficked person from leaving Malawi or seeking redress from appropriate law enforcement authorities, commits an offence and shall, upon conviction, be liable to imprisonment for seven years without the option of a fine.

Article 79. Child trafficking

(1) A person who takes part in any transaction the object or one of the objects of which is child trafficking commits an offence and shall be liable to imprisonment for life.

(2) For the purposes of this section, child trafficking means the recruitment, transaction, transfer, harbouring or receipt of a child for the purposes of exploitation.

Article 81. Forced marriage or betrothal

No person shall

1. a) force a child into marriage; or
2. b) force a child to be betrothed.

Article 82. Pledge of a child as security

No person shall

1. a) sell a child or use a child as a pledge to obtain credit;
2. b) use a child as surety for a debt or mortgage; or
3. c) force a child into providing labour for the income of a parent, guardian or any other person.

Article 83. Offences

A person who contravenes sections 80, 81 and 82 commits an offence and shall be liable to imprisonment tor ten (10) years.

CHILD CARE, PROTECTION AND JUSTICE ACT 2010 (PDF)