The Constitution of Malawi upholds the principle of equal rights for men and women and prohibits any discrimination based on gender or marital status. After the Constitution was adopted in 1994, the government established a Law Commission to assess whether existing legislation was compatible with the aims of the Constitution. The Commission has since reviewed several laws that discriminated against women.
Malawi has been profoundly modernised since it embraced democracy in 1994, yet it remains a very traditional society; establishing real gender equality will take time. Existing inequalities between men and women are largely due to customary laws and traditions. There is a wide discrepancy between the declarations in the Constitution and the actual relationship between men and women; customary law acts as a norm in the socialisation process. The country’s media contributes to the wide-ranging debate on these questions.
Depending on the customs practised, provisions in the Malawian Family Code can be discriminatory against women. This is particularly true in the case of early marriage, the incidence of which is very high throughout the country. A 2004 United Nations report estimated that 37 per cent of girls between 15 and 19 years of age were married, divorced or widowed.
Several factors contribute to this relatively high prevalence of early marriage. Many poor families in rural areas choose to marry their daughters off very young to acquire financial support from the husband’s family. In addition, most forms of customary marriage do not specify a minimum age but rather use puberty as the determining criterion. The Law Commission produced a bill that would increase the minimum legal age of marriage to 18 years. The law on the rape of minors prohibits sexual relations with girls under the age of 13, whatever the form of marriage. The existing law on civil marriage provides for annulment only in the case that one spouse is under the age of 15 years. In reality, very few marriages are contracted under this law.
Polygamy is prohibited by the Malawian Penal Code, yet is estimated to affect one-fifth of married women. The law on civil marriage is based on the former British legal system, in which marriage is monogamous, but the predominant form of marriage in Malawi is based on African customary law, which allows polygamy. Other forms of union exist in Malawi, based on Asian and African marriage laws that also permit polygamy.
In Malawi, husbands and wives share parental authority and have joint child custody rights. In the event of divorce, custody is generally awarded to the mother, particularly if the children are young. When couples are not married, the mother has parental authority and custody rights.
Women in Malawi regularly encounter discrimination in the matter of inheritance, even though a law passed in 1998 sought to strengthen widows’ rights, particularly in relation to the deceased husband’s family. The 1998 law awards half the deceased’s assets to his wife if the couple were married under the matrilineal system, but only two-fifths if they married under the patrilineal system. No information is available regarding the inheritance rights of daughters.
The physical integrity of women in Malawi is not sufficiently protected. Violence against women, particularly domestic violence, is common and appears to have increased in recent years. Domestic violence is considered acceptable according to customary law, which allows men to exercise their authority within the household. The courts are now punishing the perpetrators of such crimes more severely and a law against domestic violence is being discussed which would improve the situation for victims by introducing protection orders and fines. Spousal rape is not explicitly recognised in Malawi’s legislation. There is a national strategy in place to combat violence against women and society is starting to become aware of the problem. The press plays a role by frequently publishing articles on rape and other forms of abuse.
As many as one woman in five in Malawi has been subjected to female genital mutilation. To date, the government has taken no action against the practice. There is no evidence to suggest that Malawi is a country of concern in relation to missing women.
Women in Malawi face wide-ranging discrimination in relation to property ownership. Their access to land typically derives only through men, who take the lead in deciding how land allocated to the family is used.
Women encounter problems in relation to access to property other than land because of their lack of resources and de facto discrimination. There are no specific laws governing ownership rights within marriage in Malawi. The Constitution recognises equal ownership rights for men and women, whatever their marital status, but these rights are closely linked to gender: kitchen utensils belong to women whereas other property, such as land or cars, generally belongs to men.
Women’s access to bank loans has improved in recent years thanks to the development of specific micro-credit programmes, which have been encouraged by the government. Women in rural areas still face obstacles obtaining credit because of the requirement to provide security, as well as their own low level of education and a general lack of information. Even though it is illegal, many financial institutions continue to ask women to provide a man as a guarantor.
The civil liberties of Malawian women are protected by law, but remain restricted by tradition. Legally, women have guaranteed freedom of movement within Malawi and the freedom to leave the country. An increasing number of women exercise this right, but male family members still sometimes try to control their movements. Customary laws require wives to live in their husbands’ village. There are no reported restrictions on Malawian women’s freedom of dress.
Action Aid and UNICEF (United Nations Children’s Fund) (2006), Survey on Gender Violence in Malawi, cited in IRIN (Integrated Regional Information Network) report, “Malawi: Abuse of Women a National Shame”, United Nations Office for the Coordination of Humanitarian Affairs, New York, www.irinnews.org/report.asp?ReportID=51488&SelectRegion=Southern_Africa&SelectCountry=MALAWI.
Afrol News (n.d.), Gender Profile, Malawi, www.afrol.com/Categories/Women/profiles/malawi _women.htm, accessed: December 2007.
CEDAW (Committee on the Elimination of Discrimination against Women) (2004), Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women: Malawi, Combined Second, Third, Fourth and Fifth Periodic Reports of States Parties, CEDAW/C/MWI/2-5, CEDAWNew York, NY.
CEDAW (2006a), Réponse à la liste de questions suscitées par le rapport périodique unique, Malawi, CEDAW/C/MWI/Q/5/Add.1, CEDAWNew York, NY.
CEDAW (2006b), Observations finales du Comité pour l’élimination de la discrimination à l’égard des femmes, Malawi, CEDAW/C//MWI/CO/5, CEDAWNew York, NY.
CEDAW (2006c), Summary Record of the 727th Meeting, CEDAW/C/SR.727, CEDAW, New York, NY.
Pelser, E, L Gondwe, C Mayamba, T Mhango, W Phiri and P Burton (2005), Intimate Partner Violence: Results from a National Gender-Based Violence Study in Malawi, Institute for Security Studies, Pretoria, www.issafrica.org/index.php?link_id=14&slink_id=185&link_type=12&slink_type=12&tmpl_id=3.
Struensee, V. von (2005), “The Contribution of Polygamy to Women’s Oppression and Impoverishment: An Argument for its Prohibition”, Murdoch University Electronic Journal of Law, Murdoch, www.austlii.edu.au/au/journals/MurUEJL/2005/2.html#fn100.
UN (United Nations) (2004), World Fertility Report 2003, UN Department of Economic and Social Affairs, Population DivisionNew York, NY.
UNICEF (United Nations Children’s Fund) (2001), “Early Marriage, Child Spouse”, Innocenti Digest, No.7, UNICEFNew York, NY.
US Department of State (2007a), Country Reports on Human Rights Practices: Malawi, US Department of State, Bureau of Democracy, Human Rights and Labor, Washington, DC.
US Department of State (2007b), International Religious Freedom Report: Malawi, US Department of State, Bureau of Democracy, Human Rights and Labor, Washington, DC.
