Revisiting gender and child protection laws

On December 1 2022, a number of government agencies that included ministries of Justice and Gender, Community Development and Social Welfare, Law Commission, the judiciary, police and civil society organisations convened in Salima to identify laws that do not speak to each other, which, they observed, are main challenges to ending gender-based violence.

Some of the laws that they suggested to be amended include child marriages, household responsibilities, divorces, inheritance, violence against women and definition of a child. They were based on papers; one by Justice Eddah Ngwira and another by judge Fiona Mwale and Chisomo Kaufulu Kumwenda.

Ngwira noted that the definition of a child under the Child Care Protection and Justice Act (CCPJA) is not in line with the one under the constitutional amendment of 2017 in Section 23 (6), the African Charter on the Rights and Welfare of the Child (Article 11) and Convention on the Rights of a Child (Article 1). She said a child is defined as any person below the age of 18.

Ngwira also noted that penalties for offences where a child is a victim under the CCPJA are less punitive and not deterrent enough compared to other offences.

“For example, in Section 83 of the CCPJA, offences of harmful cultural practices, forced marriage or betrothal and pledge of a child as security attracts 10 years’ imprisonment.

“Compare this with Trafficking in Persons Act [Section 15] where trafficking in children attracts 21 years imprisonment without option of a fine and Electronic Transactions and Cyber Security Act[Section 85], child pornography offence attracts a fine of K10 million and 15 years imprisonment,” said the judge.

She called for the amendment of Section 2 of CCPJA to align with the constitutional definition of a child, enhance penalties to show severity of the offences and align pieces of legislation that use terms like minor, young person or minor child to the universal term of child.

“Again, CCPJA does not protect children whose ages are above 16 and below 18. The amendment will ensure that children within the said age gap are legally protected. This alignment will also ensure consistency in the laws.

“Less punitive penalties under CCPJA give room to lack of uniformity in punishing offenders. The proposed enhancement of penalties would highlight the severity of offences against children thereby deterring would be offenders from committing such offences. The use of a universal term when referring to a child would bring about consistency and clarity in the interpretation and enforcement of the law,” said Ngwira.

Judge Mwale and Kumwenda’s contributions are mainly on gender and can be summarised as follows:

Section 20 of the Legal Aid Act does not provide any specific reference to gender considerations when deciding if a person shall be eligible to receive legal aid in civil matters. As such, the law should be reformed to ensure that legal aid services are available to gender-based violence (GVB) survivors on a mandatory basis for those who cannot afford private lawyers.

It (law) should be amended to ensure that criteria for assessing eligibility for legal aid ought to incorporate gender lens, including a careful assessment of the vulnerabilities that women face.

On Marriage, Divorce and Family Act, it was noted that it does not apply to marriages entered into before 2015.

“[Again], the magistrates’ courts cannot deal with cases of marriage by repute and permanent cohabitation and this presents a barrier for women who are far from the High Court to access justice.

“[In addition], polygamy is allowed in marriages that are entered into using customary law and yet bigamy is an offence for marriages entered into under civil law,” says the paper.

The Disability Act is also described as gender blind. According to Mwale and Kumwenda, while the Act promotes inclusive education, employment opportunities, access to land tenure, property and housing for people with disabilities, it does not specify any obligations of the State or educational institutions to ensure gender specific measures, including addressing GBV that often targets women or the compounded barriers that women face when accessing education, employment or property.

On Gender quota, they suggest that the law should introduce gender quotas in intra-party leadership positions (possibly in alignment with the 60/40 percent rule). There should also be a requirement to have a minimum number of female members (or gender balance) as a condition for the registration of a political party.

According to them, the Act should be clear about the process that should be applied when nominating candidates to contest in presidential, parliamentary or local government elections.

However, Justice Ngwira was not comfortable with the whole concept of quota saying it is only applicable in the public sector and does not cover the private sector. She called for uniformity by ensuring that it is applied to the private sector as well.

Ngwira also called for the protection of whistle blowers, complainants or witnesses of acts of sexual harassments at workplace and GBV saying people refrain from reporting for fear of reprisals and backlash.

Other recommendations made by Mwale and Kumwenda are making gender equality a pre-condition for the registration of political parties, reserving positions for women in trade unions, recognition of paternity leave and increase paid maternity leave to a minimum of 14 weeks in alignment with the International Labour Organisation.

Others are amending laws to protect victims of witchcraft accusations who are primarily elderly women.  Making it 50/50 representation in the boards and mandate that procurement processes (the selection of services, goods and civil works) considers their impact on gender equality and women’s empowerment.

Speaking when he opened the meeting, Ministry of Gender, Community Development and Social Welfare deputy director of gender for gender mainstreaming Ronald Phiri said the amendments would promote gender equality and safeguard the welfare and participation of women, men, boys and girls in social, political and economic development processes.

“The ministry, through gender department, focus on promoting gender equality, empowering women and ending gender-based violence

“Violence against women and girls are a key bottleneck to achieving social-economic development and reducing poverty in Malawi,” he said.