Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 1 of the Convention. National policy and practical application of the Convention. In its previous comments, the Committee noted the adoption of the National Child Labour Policy and the National Action Plan (NAP) on Child Labour for Malawi (2010–16), as well as the Government’s intention to conduct a national child labour survey. The Committee also noted that, three baseline surveys conducted in Mulanje, Mzimba and Kasungu in 2011 concerning children of 5–17 years of age, showed the high occurrence of child labour (26.7 per cent in Mulanje and 40 per cent in Mzimba) and children working in hazardous conditions (40 per cent in Kasungu).

The Committee notes the Government’s indication in its report that, a report on the results achieved in implementing of the NAP will be supplied in its next report, and that the national child labour survey is under way and its results will be made available once concluded. The Committee also notes that the ILO is implementing the Global Training Programme to achieve reduction of child labour in supporting education in tobacco-growing communities (ARISE II, 2015–18). The Committee further notes that, within the framework of the Global Research Project on Child Labour Measurement and Policy Development (2013–17), the ILO and the National Statistical Office have collected data for the second National Child Labour Survey. 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 take the necessary measures to ensure the progressive abolition of child labour. The Committee also once again requests that the Government supply information on the implementation of the NAP on Child Labour and on the results achieved in terms of the elimination of child labour. Lastly, the Committee requests that the Government provide a copy of the results of the national child labour survey once it is concluded.

Article 2(1). Scope of application. Self-employed children and children working in the informal economy. In its previous comments, the Committee noted that the Committee on the Rights of the Child 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 (CRC/C/MWI/CO/2, paragraph 66). The Committee noted that the Employment Act was applicable only where there was an employment contract or labour relationship and did not cover self-employment, and that the Tenancy Bill, which establishes a minimum age for employment in the tobacco sector and provides for frequent inspections of tobacco estates, had been finalized. The Committee also noted the Government’s statement that it was doing all it could to ensure the enactment of the Tenancy Bill.

The Committee notes the Government’s statement in its report that the Government has taken a position to abolish the tenancy system in itself as it is a gross violation of human rights, and that the Government will update on the next steps to be made on how tenants will be protected in the amended existing laws. The Committee also notes the Government’s report to the Committee of the Rights of the Child of 21 June 2016 (CRC/C/MWI/3-5, paragraph 46) that, the media continues to report cases of all manner of exploitation of children as a result of trafficking and general vulnerability, and one of the most common forms of exploitation is child labour in agriculture. The Committee therefore requests that the Government take any necessary measures to ensure that self employed children or children working in the informal economy benefit from the protection of the Convention, and that the labour inspection component concerning children working in the agricultural sector will be strengthened. The Committee also requests that the Government provide information on the progress made in this regard.

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.

The Committee notes with concern that the Government does not provide any information on this point in its report. 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, in particular since the Employment Act does not cover self-employed workers.

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 by the end of 2010, 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 that the Government supply a copy of the model register as soon as it is adopted.