Malawi, the African human rights system

Pacharo Kayira and Lumbani Mwafulirwa

The African human rights system is anchored in the African Charter on Human and People’s Rights.  Also known as the Banjul Charter after Banjul the capital city of the Islamic State of the Gambia where it was adopted in 1981.

The charter has through the years received its fair share of criticism.  However, the charter has survived and with it, the African human rights system has evolved.

The charter came into force in 1986, which makes 2016 its 30th anniversary.  One might ask: Is there cause for celebration?

We believe there are plenty of reasons to mark this milestone.  The reasons for doing so will be reserved for a future discussion in October 2016 when Africa will celebrate the 30th anniversary of the charter in Banjul.  For the time being, let us look at how Malawi’s engagement with the entire human rights system in Africa has developed.

The African Commission on Human and People’s Rights is the enforcer of the African Charter.  Malawi’s relationship with the commission developed very slowly in the late 1980s and all through the 1990s.  Malawi submitted her initial State party report on the African Charter in 2013, that is “only” 21 years late!   Better late than never! The report marked a watershed moment for Malawi.

Firstly, we were the first country to comply with African Commission Guidelines on State party reporting developed in 2009.  The guidelines require that States should simultaneously report on the African Charter and the Protocol on the Rights of women.

Secondly, since the report, Malawi is regarded as a ‘model’ on two things, the first being in the area of implementation of reproductive health rights and the second area is the engagement of civil society and independent State organs in the compilation of State party reports.

Apart from the African Commission, Malawi is party to the African Court on Human and People’s Rights based in Arusha, Tanzania.  Malawi is one of the few countries which made a declaration allowing her citizens to lodge cases directly with the court.  In that regard, we already have had one case filed against Malawi at the Arusha-based court. [Achuthan (on behalf of Aleke Banda and Amnesty International (on behalf of Orton Vera Chirwa) versus Malawi African Commission on Human and People’s Rights, Comm. No. 64 of 1992 and 78 of 1992 (1995)].

Recently, Malawi also submitted her initial State party report on the African Charter on the Rights and Welfare of the Child.  It is believed that this report will be reviewed in November 2016.  Related to this, an international non-governmental organisation has filed a case against Malawi with the committee of experts at the African Charter on the Rights and Welfare of the Child in Addis Ababa, Ethiopia.  The case is essentially hinged on Malawi’s definition of “child”.  This case will be a good opportunity for Malawi to articulate the progress she has made on child rights issues.

In conclusion, we think that Malawi’s voice on the African human rights scene has grown louder in the last few years.  We, however, propose that it should in fact grow louder, both at State and civil society level.  At civil society level, we have seen increased engagement with the African Commission. This year alone, two Malawian non-governmental organisations have applied for observer States with the commission.

At State level, the process to draft Malawi’s next State report on the Banjul Charter due in April 2017 will commence in June 2016.  Malawi should also be an active player in other programmes of the commission, such as development of general comments, development of guidelines on various thematic areas, engagement with various mandate holders of the commission and even hosting a session of the African Commission.