Statement by IHRDA on the status of implementation of the agreement between Malawi and IHRDA in the Malawi Children’s Case – 31st Ordinary Session of the ACERWC

Bamako, Mali – 25 April 2018

In 2014, IHRDA had filed a case against Malawi before the ACERWC, challenging the definition of child in Malawi’s Constitution. At that time, Section 23(6) of the Constitution of Malawi defined a child as a person under the age of sixteen (16), in contravention of article 2 of the African Charter on the Rights and Welfare of the Child, which defines a child as every human being below the age of eighteen (18). As a result of this age discrepancy, persons between the 16-and-18 age bracket had not been enjoying the protection they were due under Malawi’s international obligations.

The Government of Malawi had acknowledged this flaw and had begun taking measures to amend this section of its Constitution, together with other laws related to children, and to align them to international standards. In line with this development, the Government reached out to IHRDA and opted for an amicable settlement of the case that had been slated for hearing during 28th Ordinary Session (Oct 2016) of the ACERWC, so as to guarantee a more concrete, firm, binding and assuring commitment in its drive towards ensuring greater protection for Malawian children.

By the settlement agreement, amongst other clauses, Malawi committed “to do everything within its power to amend its Constitution and all other relevant laws to be in compliance with article 2 of the African Charter on the Rights and Welfare of the Child by 31 December 2018”, and to report periodically to the ACERWC on “the progress it has made to implement this Agreement”.

In line with its commitments, Malawi submitted four progress reports to the ACERWC on measures taken to comply with the agreement. These reports reveal the following

  • A Constitutional Amendment Bill on the definition of the child had been passed by Parliament on 14 February 2017; the President of the Republic of Malawi assented to the Bill on 2 April 2017, and the Act (No15 of 2017) was gazetted on 7 April 2017.
  • Regarding the harmonization of other laws, the following activities have been carried out:
  • In June 2017, Government of Malawi organised a meeting with stakeholders to kick-start the process of harmonising all laws on the definition of a child;
  • Malawi Law Commission has carried-out an initial audit on all laws on the definition of a child;
  • Malawi was to conclude an initial analysis of all laws on the definition of a child by December 2017.

By these reports, the Malawi Government has re-affirmed its commitment to the October 2016 settlement agreement with IHRDA, and to keep the ACERWC informed of further developments.

The steps already taken are commendable and Malawi example should be emulated by other States.

We look forward to seeing the harmonization of other laws completed before the end of 2018.


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