Gender discrimination persists in Malawi’s legal system despite efforts by government to integrate international treaties in the protection of the rights of the girl child, a report on gender and the law has shown.
The African Child Policy Forum (ACPF) and Plan International said in their Getting Girls Equal: The African Report on Girls and the Law report that most African countries, including Malawi, retain some discriminatory laws that perpetuate the traditional view that girls are subordinate to boys.
Reads the report in part: “In a deeply gendered, patriarchal world, girls’ voices are deliberately shut out, and their opportunities for self-development and actualisation diminished or even precluded altogether.”
The report is the first of its kind to undertake a thorough review of the laws and policies of States and their impact on the rights of girls. It was compiled following a series of intensive consultations and technical contributions from many individuals.
ACPF programme manager Violet Odala, who also authored the report, said in an e-mailed response that the perceived “gender-blindness” in children’s laws undermines the law’s capacity to fully guarantee, safeguard and protect the rights of the girl child.
She said the situation is exacerbated when violations of child-rights, owing to the inaccessibility of formal courts in Malawi, are tried in informal courts where international human rights standards are rarely taken into account.
Said Odala: “We live in an era where patriarchy still runs through our societies and unfortunately this is also true for our courts.
“So, the more culturally oriented and less aware of the rights of girls the judicial officer, the more they will be inclined to adjudicate matters concerning girls without proper consideration of whether they are dealing with a cultural traditional practice or not.”
Incidentally, Malawi’s legal system allows the application of customary laws only in situations where it does not conflict with constitutional law.
However, former child justice magistrate Esme Tembenu said there are still some gaps in the country’s Constitution that can be exploited; hence, undermines its capacity to protect the rights of the girl child.
She cited the discrepancy between Section 138 (1) of the Penal Code which says “any person who carnally knows any girl under the age of 16 is guilty of a felony” and the Marriage, Divorce and Family Relations Act, which places the legal marriage age at 18, as one of the areas where the law can undermine gender equality.
Tembenu said girls aged above 16 who get impregnated are “rendered helpless”, considering that under the law, a man cannot be liable to prosecution if he sought the girl’s consent prior to sleeping with her, but cannot marry her as it would be illegal under the Marriage, Divorce and Family Relations Act.
On her part, Plan International chief executive officer Anne-Birgitte Albrectsen, whose organisation partnered in writing the report, urged governments in Africa to promote gender equality and gender sensitive policies to attain Sustainable Development Goals (SDGs).