We had filed this case before the ACERWC. We submitted our admissibility and merits briefs to the Committee in April 2015 and are now waiting for directions from the Committee on the next steps. The ACERWC confirmed during its ordinary session in November 2015 that it was yet to receive a response from the respondent State and might deliver a default judgment after a hearing in 2016. It should be recalled that the case was filed on behalf of all Malawian children between the ages of 16 and 18 years, challenging the definition of a child under section 23 (5) of the Malawian Constitution. Section 23 (5) of the Constitution of the Republic of Malawi defines a child as anyone below the age of 16 years and, consequently, it excludes all Malawian children from ages 16 to 18 from the Constitution’s regime on children’s rights, notably the rights to equal treatment before the law; the right to a name and nationality; the right to know and be raised by their parents; the right to protection from 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.
Updates
27 October 2016
The case was to be heard at the 28th Ordinary Session of the ACERWC, but Government of Malawi requested for an amicable settlement which was reached under the auspices of the ACERWC in session. According to the settlement agreement, Malawi commits “to do everything within its power to amend its Constitution and all other relevant laws to be in compliance with article 2 of the African Charter on the Rights and Welfare of the Child by 31 December 2018”, and to report periodically to the ACERWC on “the progress it has made to implement this Agreement”. Notably, Malawi also commits to taking interim, administrative and other measures to protect children in Malawi during the time in which the law reform process is completed.
25 January 2017
Malawi submitted its first trimester report to the ACERWC on measures it has taken to implement the amicable settlement agreement, as stipulated on the agreement.
15 February 2017
Parliament of Malawi amended the Constitution to provide for a child to be anyone below the age of 18 years. With this move, all the provisions on the age of a child in Malawian law have been harmonized accordingly.
15 March 2017
The ACERWC notified IHRDA that progress on the implementation of the amicable settlement would be discussed at the 29th Ordinary Session of the ACERWC from 28 April to 9 May 2017.
25 April 2017
Malawi field its second progress report to the ACERWC on implementation of the settlement agreement, indicated that a Constitutional Amendment Bill on the definition of the child had been passed by Parliament on 14 February 2017; the President of the Republic of Malawi assented to the Bill on 2 April 2017, and the Act (No 15 of 2017) was gazetted on 7 April 2017.
25 August 2017
Malawi filed its third progress report to the ACERWC on implementation of the settlement agreement, revealing that, in June 2017, Government of Malawi had organised a meeting with stakeholders to kick-start the process of harmonising all laws on the definition of a child; and that Malawi Law Commission had carried-out an initial audit on all laws on the definition of a child, and Malawi was expecting to conclude an initial analysis of all laws on the definition of a child by December 2017.
7 February 2018
Malawi filed its fourth progress report to the ACERWC on implementation of the settlement agreement, disclosing that Malawi had organised a workshop on the harmonisation of laws on the definition of a child from 14-15 December 2017, and that Malawi was looking forward to the review of its initial and combined report on the African Children’s Charter later this month.
25 September 2018: Malawi filed fifth report to the ACERWC on implementation of the settlement agreement, revealing that in August 2918 Government of Malawi hosted a stakeholder session where a draft of the laws to be harmonized was presented and an updated report with proposed amendments will be submitted to the Solicitor General. Government of Malawi also requested for the harmonization period to be extended from December 2018 – December 2019.
23 November 2021: ACERWC convenes hearing on implementation of the settlement agreement at its 38th Ordinary Session. In absence of Malawi, which had not submitted its final report, IHRDA requested for ACERWC to close the file, though IHRDA would continue following up for the settlement agreement to be fully complied with.
