HRW Submits to UN Committee on Malawi Rights

We write in advance of the 76th session of the Committee on Economic, Social and Cultural Rights and its review of Malawi. This is an update to our January 2023 pre-sessional submission[1] and includes updated information on the right to free and compulsory education and the right to reproductive health care.

Right to Free and Compulsory Education (articles 2, 3, and 13)

The Constitution of Malawi and the Education Act state that primary education shall be free and compulsory.[2] Primary education begins at age 6 and lasts eight years.[3] According to the 2020-2030 investment plan for Malawi's education sector, one of the government's objectives is "increasing access to secondary education and transition from primary to secondary with a long-term view of having free and compulsory secondary education."[4] Malawi Vision 2063 (MW2063) further calls for making at least 12 years of formal education compulsory, and prioritizing early childhood education for all.[5]

According to the UN Children's Fund (UNICEF), tuition fees and transport and accommodation costs have created significant barriers in accessing secondary education in Malawi.[6] Although enrollment at the primary level, when education is tuition-free, stands at 98 percent, one of the highest in the region,[7] government data indicates that net enrollment at the secondary level, when education is not guaranteed to be free for all, was only 17 percent in 2022/23, and the completion rate was 22 percent (24 percent for boys and 20 percent for girls).[8]

In particular, the lack of sufficient or adequate school infrastructure, amenities, and other facilities, such as sanitation and changing rooms, reportedly create barriers for girls at the secondary level.[9]

Girls constituted 59 percent of dropouts from secondary education in 2022/23. Most of the students who dropped out (42 percent) reportedly did so because of their inability to pay school fees, followed by 13 and 12 percent, who did so due to pregnancy and marriage, respectively.[10]

Moreover, only 43 percent of children who first registered in primary schools in Malawi had received a pre-primary education, which is also not guaranteed to be free for all.[11]

Teenage pregnancy and child marriage as barriers to realizing the right to education

Although Malawi has prohibited child marriage and adopted a school readmission policy to ensure girls can resume their education after giving birth,[12] implementation remains a challenge, according to a recent study by the Forum for African Women Educationalists (FAWE).[13] Reasons include lack of awareness of government law and policy, deeply entrenched social and cultural norms regarding teenage pregnancy and child marriage, poverty and inability to pay for school materials, and gaps in implementation of the readmission policy.[14]

FAWE reported that some girls may feel pressured to engage in sexual relations in exchange for money to buy school materials such as books and uniforms. Parents from poor households may also encourage their teenage daughters to marry for economic reasons and therefore see it as an "acceptable practice."[15]

Another study that reviewed demographic and health survey reports from 1992 to 2016 identified a strong causal link between teenage pregnancy and adolescents' lack of access to sexual and reproductive health information and services. Only 13 percent of girls ages 15-19 had accurate information about fertility, and only 25 percent knew about emergency contraception. Twenty-two percent of married adolescents ages 15-19 had an unmet need for contraception. This unmet need was significantly higher among non-married adolescents in this age group. Consequently, the rate of adolescent pregnancy had barely changed in the country since 1992.[16]

Awareness of relevant laws and policies among parents is also limited, which is compounded by weak enforcement by lower-level government agencies and haphazard implementation at the school level. For example, counselling and psychosocial services after readmission have been insufficient.[17] Most schools also do not have copies of the readmission policy, nor the forms required to readmit a student after giving birth, as per the policy.[18] And even though policies are available on the Education Ministry website, most rural schools do not have computers or access to the internet. There is also inconsistent implementation of the duration of maternity leave and the date of return to school. However, most teachers reportedly insist that the student return at the start of the first term.[19]

Human Rights Watch has found that complex re-entry processes or stringent conditions for readmission can negatively affect parenting children's willingness to return to school or ability to catch up with learning.[20]

Human Rights Watch recommends that the Committee ask the government of Malawi:

• What steps is the government taking to increase enrollment and completion rates within compulsory primary education?
• What steps is the government taking to reduce and eventually eliminate direct and indirect school fees at the secondary level?
• What barriers does the government envision to expanding the right to free and compulsory education to include at least one year of pre-primary education?
• What is the timeline to legislate 12 years of free primary and secondary education?
• What steps is the government taking to monitor school dropouts due to pregnancy or child marriage and support learners who drop out to return?
• What steps is the government taking to raise awareness among parents, schools, and communities of relevant education laws and policies such as the school readmission policy, including those located in rural areas?

Human Rights Watch encourages the Committee to call on the government of Malawi to:

• Legislate that at least one year of pre-primary education be free and compulsory, and that all secondary education be free, for all children.
• Develop and implement mechanisms to follow up on and keep track of students who drop out of school, including due to pregnancy or marriage, with the aim of initiating their return to school.
• Adopt an unconditional positive continuation policy that outlines schools' obligations to safeguard the right to education for married, pregnant, and parenting children and older students, and monitor implementation. Pregnant students should remain in school for as long as they choose to, and not be prescribed rigid compulsory leave after giving birth.
• Adopt and implement a comprehensive sexuality education curriculum for both primary and secondary school students that is non-judgmental, age-and-stage- appropriate, scientifically accurate, and evidence based, and ensure that all teachers have the necessary training and support to deliver this curriculum.
• Provide access to adolescent-responsive sexual and reproductive health services.
• Provide access to information to parents, guardians, and community leaders about the harmful physical, educational, and psychological effects of adolescent pregnancy and the importance of pregnant girls and parenting children continuing their education.
• Consistently provide sufficient school-based counselling services for students who are pregnant, married, or parenting.
• Continue to combat the practice of child marriage through national strategies, in collaboration with women's and children's rights groups, health professionals, and other service providers, and coordinate efforts among all relevant ministries.

Right to Quality, Dignified, and Respectful Reproductive Health Care (article 12)

Maternal mortality in Malawi stands at 381 deaths per 100,000 live births, placing Malawi among the 25 countries with the highest maternal mortality rates in the world.[21] This rate persists despite 96 percent of women in the country having skilled birth attendance and 97 percent delivering in health facilities.[22] The 2017-2022 National Sexual and Reproductive Health and Rights (SRHR) Policy posits that persisting high rates of maternal mortality and morbidity despite the increase in access to antenatal care (ANC), post-natal care (PNC), and skilled birth attendance point to poor quality care in health facilities.[23]

The link between high maternal deaths and poor quality of maternal health care is evident in the data collected from management, staff, and patients of the healthcare facilities in the Quality of Care for Maternal, Newborn and Child Health Network ("the QoCN").[24] The data identified the following inadequacies in the health system that relate to the quality of care: lack of training and motivation among healthcare providers resulting in absconding as well as unprofessional, disrespectful, and, sometimes, abusive treatment; lack of adequate healthcare workers and support personnel; lack of adequate infrastructure including buildings, equipment, and commodities; lack of data to inform processes and procedures; lack of leadership; and disruptive events such as the Covid-19 pandemic.[25] This network has had some successes in improving the quality of maternal health care in the country. Research conducted between 2018 and 2019, a year after the establishment of the network, found that more women and girls began to receive quality maternal health care. Specifically, women and girls reported more instances of encountering healthcare providers who are present and sufficiently trained and who treat women and girls with professionalism, care, and concern, and in a manner that respects their rights to dignity, information, and bodily autonomy.[26]

However, many women and girls still experience poor quality maternal health services. In particular, women and girls still experience obstetric violence when seeking antenatal care, intra-partum care, and post-natal care. Obstetric violence-violence, abuse, and mistreatment meted out against pregnant women and girls in healthcare facilities when they seek reproductive health services[27]-thrives in healthcare systems that face the structural issues listed above. A 2019 report by the Office of the Ombudsman found that women and girls in public hospitals are subjected to negligence by healthcare providers; neglect during labor, delivery, and the post-partum period; delays in receiving care when they arrive at health facilities; non-consensual medical procedures; and medically unnecessary procedures.[28]

Abortion is criminalized and heavily restricted in Malawi.[29] Additionally, the government has failed to enact the Termination of Pregnancy Bill, which was proposed by the report of the Law Commission on the Review of the Law on Abortion in 2016.[30] Consequently, women and girls are forced to resort to unsafe abortion, which is responsible for 17 percent of maternal mortality in the country and even more morbidity.[31] Human Rights Watch research in other countries with harsh abortion restrictions has shown that criminalization fuels obstetric violence.[32] In these contexts, women and girls seeking care for abortions, miscarriages, or other reproductive healthcare concerns are often subjected to mistreatment, long delays in care, and violations of patient-provider confidentiality. Some are denied pain management as "punishment."

The 2023 review of the QoCN identified the following health system challenges, which align with the findings of the Ombudsman's report: inadequate infrastructure including old buildings and outdated equipment; inadequate resources; high rates of staff turnover; failure to sustain the use of online resources such as the Continuous Professional Development program; and cultural resistance to implementing new healthcare standards.[33]

Many of these challenges may be caused or exacerbated by the government of Malawi's lack of public funding for its healthcare system. According to data from the World Health Organization (WHO), Malawi spent the equivalent of only 1.36 percent of its gross domestic product (GDP) on health care through public means in 2021, the most recent year for which data is available.[34]

This falls far short of the 5-percent-of-GDP public healthcare spending indicator that the WHO uses to assess governments' investment in health care, and which is associated with greater achievement towards universal health coverage and related healthcare goals fundamental to the realization of the right to health.[35] Recent analysis of these WHO data conducted by Human Rights Watch reiterated this lack of support for the public healthcare system, finding that Malawi's public healthcare spending as a percent of GDP declined by about one-fifth during the Covid-19 pandemic (between 2019-2021). Meanwhile, out-of-pocket healthcare spending, which can create discriminatory barriers to health care based on income, increased by about the same margin over this period, rising to the equivalent of about 1.05 percent of GDP in 2021.[36]

Malawi's public healthcare spending also falls far short of its commitments under the 2001 Abuja Declaration, in which African Union governments set a target of allocating at least 15 percent of their national budgets to improve health care - in 2021, the most recent year for which data from the WHO is available, Malawi allocated only 5.76 percent of its national budget towards health care.[37]

Obstetric violence also thrives in contexts where the substance of laws and policies or the methods of implementation of these laws and policies is not responsive to the realities of women and girls. For instance, in Malawi, by-laws created and enforced by chiefs to encourage women to seek timely and skilled maternal antenatal and intrapartum care and discourage the enlisting of traditional birth attendants have ended up having a punitive effect on women. While these by-laws vary from village to village, there are some elements that are common across various villages. For instance, by-laws mandating the attendance of at least one antenatal care visit within the first trimester of pregnancy; by-laws requiring the attendance of spouses or partners during antenatal care visits or, where a spouse or partner is not present, a letter from the chief justifying the absence of the spouse or partner; by-laws requiring spouses or partners to provide the supplies needed for child birth such as baby clothes, blankets, soaps, and razors; and by-laws that require women to deliver at healthcare facilities. Where these by-laws are broken, various fines are imposed such as paying a chicken or a goat or money, which can amount to 25,000 Malawian Kwacha (US$25). These by-laws have had the effect of facilitating and justifying verbal abuse, arbitrary detention, and denial of services that leads to preventable maternal morbidity and mortality.[38]

Human Rights Watch recommends that the Committee ask the government of Malawi:

• What measures is the government taking to prevent and address obstetric violence?
• What measures is the government taking to address the violations raised in the 2019 report from the Office of the Ombudsman, Woes of the Womb?
• What measures is the government taking to address the challenges faced by healthcare facilities and healthcare providers in its 2023 Quality of Care for Maternal, Newborn and Child Health Network (QoCN) report?
• What measures is the government taking to increase its public healthcare spending, including to meet its commitments under the 2001 Abuja Declaration to allocate at least 15 percent of its national budget to improve health care?
• What steps is the government taking to prevent unsafe abortion?

Human Rights Watch recommends that the Committee call on the government of Malawi to:

• Implement relevant sexual and reproductive health laws and policies including the Gender Equality Act, National Health Policy, the Quality Management policy and the Malawi National Reproductive Health Service Delivery Guidelines.
• Put in place budgetary, administrative, and programmatic measures to address obstetric violence including creating awareness among women, girls, and healthcare providers regarding obstetric violence as a maternal health violation and ensuring obstetric violence is addressed as a structural problem affecting human rights.
• Implement the recommendations from the 2019 report from the Office of the Ombudsman, Woes of the Womb.
• Ensure that all women, girls, and pregnant people can access safe, legal, abortion care to the fullest extent of the law including through creating public awareness, as well as information, education, and communication materials and resources on the existing legal provisions regarding access to safe, legal abortion and addressing stigma relating to abortion care.
• Review the 2016 Termination of Pregnancy Bill proposed in the report of the Commission on the Review of the Law on Abortion, to ensure that it effectively addresses the current challenges that women and girls face when seeking abortion care and, thereafter, enact and implement it.
• Set a goal to spend through domestically generated public funds the equivalent of at least 5 percent of GDP or 15 percent of general government expenditures on health care, or an amount that otherwise ensures the dedication of the maximum available resources for the realization of rights, including the right to health.

• Seek to increase public revenues for allocation to public health care through progressive taxes and changes to policy and enforcement to reduce tax abuses.