Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Minimum Age Convention, 1973 (No. 138) - Malawi (Ratification: 1999)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Article 1 of the Convention. National policy and practical application of the Convention. In its previous comments, the Committee noted that the National Child Labour Policy was finalized and that the National Action Plan (NAP) on Child Labour for Malawi (2010–16), was launched, in which the responsibilities of all stakeholders in the fight against child labour were well articulated. The Committee also noted that, considering that the last comprehensive survey on child labour in Malawi was undertaken in 2002 and that no follow-up survey was done, it was also envisaged to conduct a national child labour survey and regularly update national child labour statistics in order to determine their trends and prevalence.

The Committee notes the Government’s indication that it is not yet possible to provide information on the results achieved through the implementation of the NAP, but that information will be supplied in its next report. In addition, the results of the national child labour survey will be made available to the Committee once the survey is conducted. The Committee notes, however, that three baseline surveys were conducted in 2011 in Mulanje, Mzimba and Kasungu concerning children of 5–17 years of age. According to these surveys, 26.7 per cent of the 1,403 children interviewed in Mulanje (375 children) were involved in child labour, most of whom worked outside of their homes (24.6 per cent), while 1.2 per cent did household chores. A total of 52.2 per cent of children were involved in economic activity while attending school, while 37.8 per cent only attended school. The study also reveals that a high number of children worked in hazardous conditions or with hazardous equipment, such as hoes, knives or saws. In Mzimba, 40 per cent of the 888 interviewed children (355 children) were involved in child labour. Most children worked in their homes as unpaid family workers (91 per cent), followed by employees (3.9 per cent), and own-account workers (3 per cent). Similarly to Mulanje, children were found to be working with hazardous equipment, mostly hoes, and in hazardous conditions, including in extreme temperatures. In Kasungu, 401 children, representing 40 per cent of the total sample, were involved in conditional hazardous activities. Moreover, the findings revealed that the main occupations of working children are household work (71.6 per cent), and work in farms and plantations (20.4 per cent), followed by factory work (3.9 per cent), and work in street or market stalls (1.3 per cent). Expressing its concern at the number of children involved in child labour in Malawi, including in hazardous conditions, the Committee once again urges the Government to redouble its efforts to ensure the progressive abolition of child labour and the enforcement of the relevant legislation in the country. The Committee also once again requests the Government to supply information on the implementation of the NAP on Child Labour, and on the results achieved in terms of the progressive abolition of child labour, with its next report. Lastly, the Committee requests the Government to provide a copy of the results of the national child labour survey.

Article 2(1). Scope of application. In its previous comments, the Committee noted that the Committee on the Rights of the Child, in its concluding observations of 27 March 2009, expressed concern that many children between 15 and 17 years of age were engaged in work that was considered as hazardous, especially in the tobacco and tea estate sector (which continued to be a major source of child labour) (CRC/C/MWI/CO/2, paragraph 66). The Committee noted, however, that the Employment Act was applicable only where there was an employment contract or labour relationship and did not cover self-employment. The Committee therefore drew the Government’s attention to possibilities for providing self-employed children or those working in the informal economy with the protection of the Convention. In this regard, the Committee noted that the Tenancy Bill, a Bill which establishes a minimum age for employment in the tobacco sector and provides for frequent inspections of tobacco estates, had been finalized technically and was awaiting Cabinet approval (prior to submission to Parliament). The Government indicated that the forthcoming parliamentary sitting would likely discuss the Bill and adopt it, at which point a copy of the Tenancy Act would be forwarded to the Committee.

The Committee notes the Government’s statement that it is doing all it can to ensure that the Tenancy Bill is enacted and that copies of the Act will then be communicated to the Office. The Committee must once again express its concern that the Tenancy Bill has yet to be adopted. It accordingly urges the Government to take the necessary measures to ensure the adoption of the Bill at the next parliamentary sitting. It once again expresses the firm hope that, in adopting the Tenancy Bill, the labour inspection component concerning children working in the commercial agricultural sector on their own account will be strengthened, and requests the Government to provide information on the progress made in this regard along with its next report. If the Tenancy Bill is not adopted in the near future, the Committee requests the Government to take any alternative necessary measure to ensure that self-employed children or children working in the informal economy benefit from the protection of the Convention.

Article 3(1). Minimum age for admission to hazardous work. In its previous comments, the Committee noted a discrepancy between article 23 of the Constitution, which provides for protection from dangerous work for children below the age of 16 years, and section 22(1) of the Employment Act, which, in accordance with the Convention, lays down a minimum age of 18 years for work that is likely to be harmful to their health, safety, education, morals or development, or prejudicial to their attendance in school. This issue was discussed at a tripartite meeting in 2005, where it was agreed by all social partners that there was a need to harmonize the provisions of the national laws. Subsequently, this issue was presented to the Malawi Law Commission for consideration, and the Commission recommended that the age stipulated under article 23 of the Constitution be raised to 18 years of age. The Committee also noted that, according to the NAP on Child Labour, inconsistencies among various pieces of legislation relating to children, including the Constitution, remain an issue.

Observing that the discrepancy between section 22(1) of the Employment Act and article 23 of the Constitution has been under discussion since 2005, the Committee once again strongly urges the Government to take the necessary measures, within the framework of the NAP on Child Labour or otherwise, to ensure that the recommended amendment to article 23 of the Constitution is adopted in the very near future, in conformity with Article 3(1) of the Convention.

Article 9(3). Keeping of registers by employers. The Committee previously noted that section 23 of the Employment Act stipulates that every employer is required to maintain a register of persons aged below 18 years employed by, or working for, him/her. However, the Committee also noted the indication of the Malawi Trade Unions Congress (MCTU) that some estates did not have registers, particularly in commercial agriculture. The Committee noted the Government’s information that the draft model register would be finalized before the end of the year, and that this draft would be submitted to the Tripartite Labour Advisory Council for adoption. The Government also indicated that the model register of employment would be in conformity with Article 9(3) of the Convention and would be submitted to the Committee as soon as it is finalized. In this regard, the Committee reminded the Government that, pursuant to Article 9(3) of the Convention, the registers kept by employers shall contain the names and ages or dates of birth, duly certified wherever possible, of persons whom they employ, or who work for them, and who are less than 18 years of age.

The Committee notes that the Government reiterates its commitment to finalize the model register of employment and to communicate a copy of it as soon as it is prepared. Observing that the Government has been referring to the model register of employment since 2006, the Committee strongly urges the Government to take the necessary measures to ensure its elaboration and adoption without delay. It once again requests the Government to supply a copy of the model register as soon as it is adopted.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.