Justice Mwale weighs in on state of child rights in Malawi


High Court Judge Fiona Mwale on Thursday joined Chancellor College law students and their lecturers at their backyard in Zomba to discuss the state of child rights in Malawi.

The academic discussion, dubbed Staff-Students Seminar, was conducted under the theme “Protection of Children from violence and abuse: Traditional norms and the Law.”

Justice Fiona Mwale (C) with Professor Garton Kamchedzera (R) and Dr Madise (L)

Setting the pace was a third year law student Chinsinsi Kirby Kansinja, who interrogated the issue of child labour in tobacco estates. The presentation, titled, “Analysis of the Legal Framework for the Protection of Children from Child Labour in Malawi’s Tenancy System in Tobacco Estates” came against the background of the recent action taken by the United States government of stopping buying tobacco from Malawi arguing it is tainted with child-labour.

According to Kansinja, Malawi, under international law, is under strict obligation to intervene on behalf of the children embroiled in the tenancy system in tobacco estates. Locally, he argued that the Constitution of the Republic of Malawi, under section 23 (5) also mandates government to “protect children from economic exploitation or any treatment, work or punishment that is, or is likely to be hazardous,  interfere with their education; or be harmful to their health or to their physical, mental or spiritual or social development.”

He buttressed his point by quoting section 82 of the Child Care, Protection and Justice Act, 2010 to the extent that “No person shall- force a child into providing labour for the income of a parent, guardian, or any other person” and that if one contravenes this section, the law says that such a person will be liable to imprisonment for 10 years.

Acknowledging the problem of child labor in the country, the presenter suggested that  government, with the requite legal framework it has regarding children, must strive to make it a policy to ensure that the laws it has are enforced, and that necessary governmental bodies must have funds to make sure that such children are protected.

He also suggested that “the legal aid bureau, Malawi Law Society and other legal stakeholders should find more ways of assisting the victims in accessing the legal counsel that they need to acquire judicial remedies.”

The second was a joint presentation by third year law students Arius Adriano Chagunda and Kabula Yande Chagwamnjira titled “Critiquing the legal framework providing for Children’s right to matrimonial property on the dissolution of marriage.”

The presenter’s central argument was to include children as beneficiaries of matrimony property. They observed that the Constitution and Marriage Divorce and Family Relations Act (MDFRA) give an impression that only spouses are entitled to a fair distribution of matrimonial property disregarding the interest of the child.

Section 24(1)(b)(i) of the Constitution provides for “the right to fair distribution of matrimonial property on dissolution of marriage”  and section 74(g) MDFRA provides for “a court to equitably divide property upon dissolution of marriage considering direct and indirect contributions including performance of domestic duties.”

And talking of performance of domestic duties, the duo observed that the Malawi Supreme Court of Appeal in Sikwese v Banda held that indirect contributions to the acquisition of property may entitle one to a fair distribution of the said property.

Against this background, the presenters argued that children perform domestic chores at home and if a spouse is entitled to the property based on the same indirect contributions to the acquisition of the said property, then children must also be entitled to the same.

They recommended that “the law should recognize that joint ownership of matrimonial property includes children as it is the parties’ intention that the property belong to the entire family.”

Before introducing the Judge, Professor Garton Kamchedzera, whom the Dean of Law, Dr Sunduzwayo Madise, described as one of Fathers of the Faculty of Law, gave a brief presentation on ‘Child-based child protection Law Making in Malawi.”

Taking her turn, the guest of honor Justice Fiona Mwale, herself a passionate activist on child rights, was all smiles for the wonderful job the law school is doing in promoting child rights by drilling it’s would be lawyers to be in sync with the said child rights.

The President of the Child Rights Clinic, the organizer of the Seminar, Gerald Alpha Kampeni, was over the moon for having delivered what he described as one of the most attended function.

“I didn’t expect that the turn-out would be this huge. See, we are even running out of refreshments. This is because we didn’t expect the attendance to be this massive,” said the visibly excited President, of the audience which took them, the organizers, by surprise.

The Faculty of law has several clinics including Bail and Mitigation Rights Clinic, Commercial Clinic, Environmental Clinic, Disability Rights Clinic and Health and HIV/AIDS Clinic. These are platforms which offer law students including non-law students an opportunity to learn advocacy and activism skills.

By Decenzo Banda