Malawi

Malawi is ranked 38 out of 86 in the 2012 Social Institutions and Gender Index.

The country was ranked 60 out of 102 in the 2009 Social Institutions and Gender Index.

In 2011, the Human Development Index for Malawi was 0.400, placing the country at 171 out of 187 countries. For the Gender Inequality Index Malawi received a score of 0.594, placing the country at 120 out of 146 countries with data. In 2011, the World Economic Forum ranked Malawi 65 out of 135 countries in its 2011 Global Gender Gap Report, with a score of 0.6850 where 0 represents inequality and 1 represents equality.

Discriminatory Family Code: 

Marriage in Malawi can be entered into under common and customary laws. The government reports that most marriages are contracted under customary law using the patrilineal system, predominant in the northern region and Nsanje district in the south. The matrilineal system is predominant in the central and southern regions.[9]

With respect to the minimum age for marriage, there is an ambiguity in the legal system. Under the constitution, a person of 18 years of age may enter into marriage without parental consent. Persons between 15 and 18 must obtain parental consent before entering into marriage. The constitution also provides that the state is obliges to ‘discourage’ marriages where either party is under the age of 15.[10]  The Constitution is in conflict with the common law Marriage Act which provides that 21 years of age is the minimum age of marriage.[11]  The Law Commission has recommended that the government increase the minimum legal age of marriage to 18 years with parental consent and 21 years without parental consent.[12]  

With respect to forced marriage, the constitution provides that any person above the age of 18 years may not be forced to enter into marriage.[13]

The United Nations reports, based on 2004 data, that 36 per cent of girls between 15 and 19 years of age were married, divorced or widowed in Malawi, compared to 3 percent of boys in the same age range. In 1977, 51 percent of girls aged between 15 and 19 were married, divorced or widowed which indicates that societal acceptance of early marriage is slowly declining.[14] 

Several factors contribute to this relatively high prevalence of early marriage. Under custom, attainment of puberty is seen as readiness for marriage, particularly for young girls.[15]  Further, many poor families in rural areas choose to marry their daughters off very young to improve their financial status.[16] A practice known as kupimbira practiced in the northern part of Malawi is a form of debt repayment where a young daughter may be transferred to the creditor for marriage for failure to pay the debt back.[17]

A key challenge for eliminating early marriage in Malawi is the persistence of attitudes that accept the practice. For example, a recent community-based study of 500 males and females by the Women and Law in Southern Africa and The National Women’s Lobby Group found that 12 percent of respondents deemed early marriage as normal.[18]

There is a discrepancy between common law and customary with respect to polygamy. Polygamy is prohibited by the Malawian Penal Code for common law marriages.[19]  However, customary laws allow polygamous marriages.[20]  As noted above, most marriages in Malawi are entered into under customary law. Other forms of union exist in Malawi, based on Asian and African marriage laws that also permit polygamy.[21]  A 2010 survey conducted by Demographic Health Surveys found that 20 percent of married women are in a polygamous marriage.[22]  Following a review of marriage laws, the Law Commission has recommended a prohibition of polygamy on account of its negative impact on women. This negative impact includes the wilful neglect of women and children during marriage as well as after divorce or separation.[23]

In Malawi, under the constitution, husbands and wives share parental authority and have joint child custody rights.[24]  The government reports that equal parental responsibility for husbands and wives is also reinforced in a proposed bill on marriage and divorce.[25]  In the event of divorce, the custody of children is determined based on the age of the child and in the best interests of the child.[26] 

In 2011, the parliament passed the Deceased Estates (Wills, Inheritance and Protection Act) Act No. 14 of 2011 to provide widows and daughters equal inheritance rights and address problems with widows being denied their inheritance upon the death of a spouse.[27]  The treatment of widows has been noted as a particularly serious problem in Malawi. The Women and Law in Southern Africa group report that the practice of dispossession and ‘property-grabbing’ from widows is common.[28]  The government notes that the previous law had not been effectively enforced as there have been no prosecutors appointed.[29]

The new law represents positive developments on a number of fronts. Firstly, it sets out principles of fairness that should be applied where there is no will. If the spouse and children are left out of a will, which has been a problem for widows in Malawi in the last, the new law makes a provision for the spouse and children to make a claim for inheritance. The law stipulates that customary laws do not apply for inheritance and also makes property grabbing a specific offence. Finally, the law provides for the Minister to engage in public awareness activities to educate the judiciary, traditional authorities and the public about the new provisions.[30]

[9] CEDAW (2008) p.48 [10] CEDAW (2008) p.10[11] CEDAW (2008) p.48 [12] CEDAW (2008) p.11 [13] CEDAW (2008) p.48 [14] United Nations Department of Economic and Social Affairs, Population Division (2008) [15] CEDAW (2008) p.48 [16] CEDAW (2008) p.48 [17] CEDAW (2008) p.48 [18] Women and Law in Southern Africa (2009) p.10 [19] CEDAW (2004) p.80 [20] CEDAW (2004) p.79 [21] CEDAW (2004) p.80 [22] Demographic Health Surveys (2010) [23] CEDAW (2008) p.13 [24] CEDAW (2008) p.49 [25] CEDAW (2008) p.49 [26] CEDAW (2008) p.49 [27] Women’s Inheritance Now (2012) [28] Women and Law in Southern Africa (2009) p.18 [29] CEDAW (2008) p.50 [30] Women’s Inheritance Now (2012)

Restricted Physical Integrity: 

The law in Malawi prohibits rape with a maximum penalty of life imprisonment. Marital rape is not specifically prohibited.[31]  In 2006, the government passed the Prevention of Domestic Violence Act in April, 2006.[32]  The law provides a maximum penalty of life imprisonment for domestic violence.[33]  Sexual harassment is not specifically prohibited by law, but it can be prosecuted under existing sections of the penal code, such as indecent assault on a female, which carries up to a 14-year prison sentence, or insulting the modesty of a woman, which is a misdemeanour punishable by one year in jail.[34]

Despite these legal protections, the Women and Law in Southern Africa group reports that laws have not been effectively implemented. In 2009, they pointed out that there had not been an adequate budgetary allocation to implement the law and that many magistrates, police officers and judges remain ignorant of the law. Further, women themselves have limited knowledge of the law and how it can be used for protection.[35]  However, the US Department of State reports that courts are increasingly convicting perpetrators of rape, including up to 14-year prison sentences for child rape and assault.[36]

The US Department of State reported that both rape and domestic violence are common in Malawi.[37]  Based on 2004 data, the government reports that 28 percent of women had by the age of 15 years experienced physical violence, most commonly from intimate partners.[38]  A 2009 community-based survey by the Women and Law in Southern Africa group found that 19 percent of respondents said that beating of women occurred in their communities. Further, the survey revealed a level of acceptance around violence against women, with 24 percent respondents reporting beating of women as normal behaviour.[39]  Data from Demographic and Health Surveys suggests similar levels of acceptance of violence. For example, 18 percent of women believe that a husband is justified in beating his wife if she refuses sex with him, 22 percent believe a husband is justified in beating his wife if she neglects the children and 19 percent if she argues with him.[40]

Violence against women and women’s inequality in general is acknowledged as a key factor contributing to women’s vulnerability to HIV/AIDS in Malawi.[41]  As such, the government has introduced a Comprehensive HIV and AIDS Programme for Women and Girls aimed at increasing knowledge of rights in relation to sexual consent and violence amongst young women.[42]

There is limited information on the prevalence of female genital mutilation (FGM) in Malawi. A study by the Malawi Human Rights Commission in 2005 found that 5 percent of respondents reported that FGM was practiced in their community.[43]  In 2007, the US Department of State reported that there was no specific legislation prohibiting FGM.[44]

Having control over the timing and spacing of children is an important aspect of women’s physical integrity. In Malawi, abortion is permitted for therapeutic reasons to save the woman’s life. It is not permitted in the event of rape or incest, due to foetal impairment, on request or on social or economic grounds.[45]  A 2004 Demographic Health Survey found that 32 percent of married women use contraception and 28 percent of married women use modern forms of contraception. The data suggests that there remains reluctance amongst couple to discuss family planning with 27 percent of married women reporting never having discussed family planning with their spouse. Further, access to family planning appears to be a problem with 28 percent of married women reporting an unmet need for family planning.[46]  Malawi also has an exceptionally high maternal mortality rate of 1100 per 100,000 births.[47]

[31] US Department of State (2010) [32] CEDAW (2008) p.12 [33] US Department of State (2010) [34] US Department of State (2010) [35] Women and Law in Southern Africa (2009) p.13 [36] US Department of State (2010) [37] US Department of State (2010) [38] CEDAW (2008) pp.11-12 [39] Women and Law in Southern Africa (2009) p.10 [40] Demographic Health Survey (2010) [41] CEDAW (2008) p.42 [42] CEDAW (2008) p.43 [43] Malawi Human Rights Commission (2005) p.4 [44] US Department of State (2008) [45] United Nations Population Division (2007) [46] Demographic Health Surveys (2004) [47] World Economic Forum (2010) p.202

Son Bias: 

Gender disaggregated data on early childhood nutrition do not indicate the preferential treatment of sons with respect to access to household nutrition.[48]  Malawi has achieved gender parity in primary school enrolments which indicates that there has been a change in preferential treatment of sons with respect to access to primary education. There does however remain a gender gap in secondary and tertiary enrolments indicating the preferential treatment of sons for higher education.[49]

The Central Intelligence Agency reports that the country has a male/female sex ratio for the total population of 0.99.[50]

Malawi does not appear to be a country of concern in relation to missing women.

[48] Government of Malawi (2010) p.8 [49] World Economic Forum (2010) p.202 [50] Central Intelligence Agency (2012)

Restricted Resources and Entitlements: 

Women’s access to land is often through the family head, who are most often men. In patrilineal societies, access to land is through a male.[51]  In matrilineal societies, the family head is the maternal uncle. In such societies, men access land through their marriages unless the woman is taken to live in the man’s village. In both matrilineal and patrilineal societies, the husband is regarded as the key controller in the use of any land allocated to his family.[52]  The National Land Policy of 2002 highlighted the need to increase women’s access to land. However, the policy allows for the name of the head of a family to be registered as the proprietor of family land, resulting in men’s names being recorded with a likely loss to women and young men.[53]  Despite these barriers, a 2010 report from the Government of Malawi found that there is only a very small gender gap in land ownership in Malawi.[54]

Women in Malawi encounter discrimination in relation to access to property other than land because of discriminatory customary practices. Section 24 of the Constitution recognises equal ownership rights for men and women, regardless of marital status.[55]  However, in customary law, these rights are closely linked to gender stereotypes and roles and thus women are generally owners of less valuable property. For example, kitchen utensils belong to women whereas other property, such as land or cars, generally belongs to men.[56]

While there are no legal restrictions on women’s access to credit, the government reported in 2008 that discriminatory practices continue to create barriers for women’s access to bank loans.[57]  For example, some commercial banks will request a male guarantor when a woman seeks a loan.[58]  Further, the requirement to provide security poses barriers for women who are less likely to own valuable property as noted above.[59]  As a result women tend to access credit through micro-finance institutions.[60]  In 2010 the government reported a gender gap in access to credit, with only 11 percent of women having access to credit, compared to 14 percent of men.[61]

[51] CEDAW (2008) p. 71 [52] CEDAW (2008) p. 71 [53] Food and Agriculture Organisation (n.d.) [54] Government of Malawi (2010) p.14 [55] CEDAW (2004) p.76 [56] CEDAW (2004) p.81 [57] CEDAW (2008) p. 45 [58] CEDAW (2004) p.62 [59] CEDAW (2004) p.62 [60] CEDAW (2008) p.45 [61] Government of Malawi (2010) p.13

Restricted Civil Liberties: 

While women’s right to freedom is set out in section 39 of the constitution.[62]  In 2008 the government reported that women generally enjoy the right to movement to participate in public and economic life. However, women’s movement in Malawi can be restricted through control measures of their male relatives or husbands.[63]

The US Department of State reports that the government in Malawi has at time restricted press freedom. However, the government generally respects the right to freedom of association.[64]  With respect to women’s participation in civil society, in 2010 the government reported that there is a poor representation of women in civil society leadership positions. For example, women held only 274 head of community organisation positions, compared to 1603 men.[65]  However, there is evidence to suggest that Malawi has a strong and active women’s movement, with the government’s 2008 reported to the United Nations Committee on the Elimination of Discrimination Against Women referencing several initiatives led by civil society organisations.[66]

With respect to women’s participation in political life, the World Economic Forum reports that women make up only 21per cent of Malawi’s parliamentarians and 27 per cent of Ministerial positions.[67] The most recent elections were held in 2009.[68]

The constitution provides for basic workers rights, prohibits discrimination and enshrines the principle of fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular, on the basis of gender.[69]  Despite these protections the government reports that discrimination in the workplace on the grounds of pregnancy is common, as well as sexual harassment towards women.[70]  The Employment Act 1999 provides pregnant workers with maternity leave of 8 weeks paid at 100 percent of wages. Maternity leave can only be accessed once every three years.[71]

[62] CEDAW (2004) p.77 [63] CEDAW (2008) p.47 [64] US Department of State (2010) [65] Government of Malawi (2010) p.14 [66] CEDAW (2008) [67] World Economic Forum (2010) p.202 [68] Inter-Parliamentary Union (2010) [69] CEDAW (2008) p.39 [70] CEDAW (2008) p.39 [71] International Labour Organisation (2009)

Background: 

Malawi gained independence from British rule in 1891. Since 2004, Malawi has been marked by political struggle with a deadlock in the parliament preventing the passage of significant legislation. Key challenges for Malawi include population growth, corruption and the spread of HIV/AIDS.[1]  The World Bank classifies Malawi as a low income country.[2]

The unequal status of women in Malawi is shaped by the inter-locking factors of general poverty, discriminatory treatment in the family and public life and a vulnerability to HIV/AIDS. Both matrilineal and patrilineal systems operate in Malawi’s ethnic groups and it is reported that both systems perpetuate discrimination against women in the family with respect to control over resources.[3]  Women in Malawi generally fare worse than their male counter-parts on most social and economic indicators including wage equality, political participation, secondary and tertiary education enrolment and literacy.[4]  However, Malawi has achieved gender parity with respect to primary school enrolments which indicates an improvement in attitudes towards girls’ education.[5]  Women in Malawi are disproportionately affected by HIV/AIDS. It is estimated that  the HIV infection rate in females aged 15 to 24 is about 4 to 6 times higher than the infection rate in males in the same age group.[6]  The higher prevalence of HIV/AIDS amongst women is attributed to women’s greater vulnerability to poverty and the persistence of socio-cultural attitudes that restrict women’s control over their sexual and reproductive freedom.[7]  

Sections 20 and 41 of the Constitution of Malawi uphold the principle of equal rights for men and women and prohibit any discrimination based on gender or marital status.[8]  The Republic of Malawi ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1987.

[1] Central Intelligence Agency (2010) [2] World Bank (n.d.) [3] White, S (2007) pp.5-6 [4] World Economic Forum (2010) p.202 [5] World Economic Forum (2010) p.202 [6] White, S (2007) p.17 [7] White, S (2007) p.17 [8] Section 20(1) and 40(1) of the Constitution of the Republic of Malawi, adopted in 1995.

Sources: 

Central Intelligence Agency (2010) The World Factbook: Malawi, available at https://www.cia.gov/library/publications/the-world-factbook/geos/mi.html, accessed 1 December 2010.

Central Intelligence Agency (2012) The World Factbook: Sex Ratio, available at https://www.cia.gov/library/publications/the-world-factbook/fields/2018.html, accessed 9 March 2012.

Demographic Health Surveys (2004) Malawi – online data, available at http://www.statcompiler.com/index.cfm, accessed 3 December 2010.

Demographic Health Surveys (2010) Malawi – online data, available at http://www.statcompiler.com/index.cfm, accessed 3 December 2010.

Food and Agriculture Organization of the United Nations (FAO) (n.d.) Gender and Land Rights Database, available at http://www.fao.org/gender/landrights/ , accessed 3 December 2010.

Government of Malawi (2010) Gender and Development Index 2010, available at http://www.nso.malawi.net/data_on_line/economics/Gender/MALAWI%20GENDER%20AND%20DEVELOPMENT%20INDEX%20_April2010_Final.pdf, accessed 3 December 2010.

International Labour Organisation (ILO) (2010) Database of Conditions of Work and Employment Laws, available at http://www.ilo.org/dyn/travail/travmain.home, accessed 31 October 2010.

Inter-Parliamentary Union (2010) Parline Database: Malawi, available at http://www.ipu.org/wmn-e/classif.htm, accessed 1 November 2010.

Malawi Human Rights Commission (2005) Cultural Practices and their Impact on the Enjoyment of Human Rights, Particularly the Rights of Women and Children in Malawi, available at http://www.malawihumanrightscommission.org/docs/cultural_practices_report.pdf, accessed 3 December 2010.

United Nations Committee on Elimination of Discrimination Against Women (2008) Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women, Sixth periodic report of States parties, Malawi, CEDAW/C/MWI/6, Geneva.

United Nations 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, Combined second, third, fourth and fifth periodic report of States parties, Malawi, CEDAW/C/MWI/2-5, New York.

United Nations Department of Economic and Social Affairs, Population Division (2008) World Marriage Data 2008, available at http://www.un.org/esa/population/publications/WMD2008/Main.html, accessed 10 October 2010.

United Nations Development Programme (2010) Human Development Report 2010 Malawi, online edition, available at http://hdrstats.undp.org, accessed 1 November 2010.

United Nations Development Programme (2011) Human Development Report 2011, available at http://hdr.undp.org/en/media/HDR_2011_EN_Complete.pdf, accessed 29 February 2012.

United Nations Population Division (2007) World Abortion Policies 2007, available at http://www.un.org/esa/population/publications/2007_Abortion_Policies_Chart/2007_WallChart.pdf, accessed 13 October 2010.

US State Department (2010) 2009 Country Reports on Human Rights Practices: Malawi, Available at http://www.state.gov/g/drl/rls/hrrpt/2009/af/135963.htm, accessed 3 December 2010.

White, S (2007), Gender Profile: Malawi for Japan International Cooperation Agency, available at http://www.jica.go.jp/activities/issues/gender/pdf/e06malaw.pdf, accessed 2 December 2010.

Women and Law in Southern Africa Research and Educational Trust (2009) Shadow Report to the  Malawi Government Sixth Periodic Report on the Implementation of the Convention on the Elimination of all forms of Discrimination Against Women, submitted to the CEDAW Committee’s 45th Session, 15 January – 2 February 2010, available at http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/WLSAMalawi45_session.pdf, accessed 2 December 2010.

Women’s Inheritance Now (2012) WLSA Malawi’s fight for inheritance law sees the law passed, available at http://winafrica.org/2011/11/wlsa-malawi%E2%80%99s-fight-for-inheritance-law-sees-the-law-passed/, accessed 21 March 2012.

World Bank (n.d.) Online data: Malawi, available at http://data.worldbank.org/country/malawi, accessed at 20 November 2010.

World Economic Forum (2010) Global Gender Gap Report 2010, available at http://www.weforum.org/pdf/gendergap/report2010.pdf, accessed 20 October 2010.

World Economic Forum (2011) The Global Gender Gap Report 2011, available at http://www3.weforum.org/docs/WEF_GenderGap_Report_2011.pdf, accessed 2 March 2012.

Data
Discrim. Fam. Code Rank 2012: 
47
Discrim. Fam. Code Value 2012: 
0.2979
Legal Age of Marriage: 
0.5
Early Marriage: 
0.362
Parental Authority: 
0
Inheritance: 
0
Data
Rest. Phys. Integrity Rank 2012: 
48
Rest. Phys. Integrity Value 2012: 
0.3129
Violence Against Women (laws): 
0.41667
Female Genital Mutilation: 
0.05
Reproductive Integrity: 
0.261
Attitudes Towards Domestic Violence: 
0.282
Prevalance Of Domestic Violence: 
0.284
Data
Son Bias Rank 2012: 
20
Son Bias Value 2012: 
0.39077
Missing Women: 
0
Fertility Preferences: 
0.46466
Data
Rest. Resources & Ent. Rank 2012: 
100
Rest. Resources & Ent. Value 2012: 
0.5071
Access To Land: 
0.5
Access To Property Other Than Land: 
0.5
Access To Bank Loans And Credit: 
0.5
Data
Rest. Civil Liberties Rank 2012: 
79
Rest. Civil Liberties Value 2012: 
0.7019
Access To Public Space: 
0.5
Political Participation: 
0.2228
Political Quotas: 
1