RACIAL DISCRIMINATION COMMITTEE CONSIDERS SITUATION IN MALAWI UNDER ITS REVIEW PROCEDURE

The Committee on the Elimination of Racial Discrimination has considered the situation in Malawi under its review procedure for countries whose reports are seriously overdue. It has also discussed its draft General Recommendation on racial discrimination in the administration of justice.

The country review by the Committee Experts, which took place in the absence of a delegation and report from Malawi, noted that the State party had never presented a report to the Committee, and thus the initial to fifth periodic reports, due from 1997 to 2005, were all overdue.

In his remarks to the Committee, the country Rapporteur for the situation in Malawi, Committee Expert Nourredine Amir, said the Government of Malawi respected, generally speaking, human rights, except for cases involving suspect criminals, where the police went as far as torturing detainees, using excessive force. The conditions of detainees were excessive, and could be arbitrary. While the Government respected the freedom of the press, it also went beyond what it could do in limiting it. The country respected human rights, but there were isolated cases of abuses. Violence against women was still prevalent, and HIV/AIDS was also a problem.

Experts raised various issues in connection with the situation of Malawi, including the situation of the Malawian Commission on Human Rights which could not operate fully due to a lack of resources; the issue of refugees and asylum-seekers, as Malawi was confronted with grave problems in terms of population movements, mainly from Burundi and Rwanda; and the fact that Malawi had ratified a number of human rights Conventions, but had not been able to submit a number of its due reports linked to these Conventions, and Experts suggested asking Malawi whether it had considered asking for the help of the Office of the High Commissioner for Human Rights in this regard.

In final remarks, Mr Amir noted that the Committee’s concerns were also the concerns of the people of Malawi. Problems continued in Africa in terms of customs and the will to build the State, which could run against the wishes of the population. The issues raised by diplomatic missions were often considered secondary compared to the pressing issues linked to daily life in difficult situations. Malawi had not replied to diplomatic representations, but it was not the only country that did this, and it was a frequent situation in a continent where conditions were becoming increasingly pressing.

In the context of the discussion on the draft General Recommendation, Régis de Gouttes, the Expert in charge of drafting it, noted that the original intent of the General Recommendation had changed, and a tighter focus had been adopted, targeting only the criminal justice system, as this was the first element of the justice system that was involved in the question of racial discrimination and ethnic discrimination, both concerning victims and those prosecuted. The criminal justice system was the first that was at risk of displaying racially discriminating attitudes, and this was why it had been chosen as the focus of the document.

Experts discussed various issues including that it was a fundamental part of the work of the Committee to ensure correct application by judicial and penal bodies of the provisions of the Convention; and whether automatically suspending a judicial official suspected of racial discrimination from their employment was a form of injustice.

The Committee is expected to end its three-week session on Friday, 19 August 2005, at which time it will release its concluding observations on the country reports reviewed during the session.

The Committee will meet at 3 p.m. on Tuesday, 9 August to start its review of the eighth to sixteenth reports of Tanzania.

Discussion on Draft General Recommendation on the Administration of Justice

The document (CERD/C/GC/31/Rev.3), containing the Committee’s draft General Recommendation on the administration of justice, drafted by Committee Expert Régis de Gouttes and available only in French, contains general steps to be taken in order to better gauge the existence and extent of racial discrimination in the administration and functioning of the criminal justice system: the search for indicators attesting to such discrimination; and strategies to be developed to prevent racial discrimination in the administration and functioning of the criminal justice system. It also contains steps to be taken to prevent racial discrimination with regard to victims of racism; and steps to be taken to prevent racial discrimination in regard to accused persons who were subject to judicial proceedings.

Presenting the document, Mr. de Gouttes made various points, including that the objective of this recommendation was threefold: the first target was Governments and public authorities who should be incited to address their systems of justice; secondly police forces and judicial bodies, with the hope of improving their practice with regard to racial discrimination; and thirdly with regard to those who taught human rights and who raised awareness of justice. He also noted that the original intent of the General Recommendation had changed, and a tighter focus had been adopted, targeting only the criminal justice system, as this was the first element of the justice system that was involved in the question of racial discrimination and ethnic discrimination, both concerning victims and those prosecuted. The criminal justice system was the first that was at risk of displaying racially discriminating attitudes, and this was why it had been chosen as the focus of the document.

Discussing the text with the aim of proposing amendments, Experts raised various issues, including that this was a very sensitive issue for the countries dealing with penal justice; that it was a fundamental part of the work of the Committee to ensure correct application by judicial and penal bodies of the provisions of the Convention; and whether automatically suspending a judicial official suspected of racial discrimination from their employment was a form of injustice.

The Committee subsequently discussed the text on a section-by-section basis, whilst Experts proposed specific changes, although the entirety of the text was not covered, and the discussion will be resumed at a later date during the session. However, MARIO JORGE YUTZIS, the Chairperson, said a new working method would have to be found in order to deal more effectively with the issue during the current session.

Discussion on Malawi

NOURREDINE AMIR, the Committee Expert serving as Country Rapporteur on the situation in Malawi, said he had submitted a list of questions to the Committee which were a response to the problems that Malawi had been going through for the last nine years. The Committee would need to adopt this list, which had been created in response to the Committee’s intent, expressed at the March 2003 session, that it would discuss the situation of Malawi. As no report had been received, the information received in confidential reports was the basis for the information before the Committee.

Malawi was a land-locked country, and in an area that was gripped by civil wars and crises. Malawi had received over a million refugees from neighbouring countries which had undergone such crises and civil wars. From the point of view of the social situation, women represented the key work force in Malawi. Seventy per cent of the work force was made up of women, and this was a situation which was unique in the world. Malawi was a country which, before 1994, was under a one-party rule system. In 1994, with the change to multi-party rule, the transition had taken place without a military coup, through real elections, after which a real President came to power, and set up a Constitution and a system in which the political and judicial branch found at least virtual elements to organise power.

Malawi was a small country, when compared to others, but, contrary to other countries in the region, had between 80 and 90 per cent of its population living in rural areas. Urbanisation was therefore not a problem. Seventy per cent of the population lived off the land. The authority in power was not that of the Constitution, but was derived from local powers, which ensured that women were always segregated and had to face discrimination, despite being key workers.

The President, Mr Amir said, had been re-elected recently. On 14 June 1993, a certain number of reforms had begun, starting with the Constitution, which gave the State the means to create a type of cultural platform that advocated the idea that Malawi was a harmonious country, with no ethnic friction, and built on the auspices of unity. This was similar to the Zambian situation, where the construction of the nation was given priority.

The President of Malawi belonged to the majority party, and had succeeded in building a coalition power with an alliance of opposition parties, which were there to signify that the opposition should be a crucible in which ethnic groups should be represented so that they could be a counter-power to the Government, whilst being a part of it, thus allowing the nation to be built. The phenomenon of corruption at a high level was widespread. The legal and judicial system of Malawi were very similar to the common-law system of the Commonwealth, and justice and its administration were viewed in a particular way.

The Government, Mr Amir said, respected, generally speaking, human rights, and this was recognised by non-governmental organizations, including Amnesty International, except for cases involving suspect criminals, where the police went as far as torturing detainees, using excessive force. The conditions of detainees were excessive, and could be arbitrary. While the Government respected the freedom of the press, it also went beyond what it could do in limiting it. The country respected human rights, but there were isolated cases of abuses. Violence against women was still prevalent.

HIV/AIDS was also a problem, as it was spreading more and more in the country, and the means to tackle the problem were almost non-existent. Problems existed because of civil society which believed that corruption was part and parcel of a normal system allowing for individuals to improve their situation. When there was corruption at all levels, people disappeared. There was torture, degrading treatment, and the system of Malawi demonstrated an all-out fight against this situation.

Malawi was also one of the poorest countries in the world. Children were protected by the Constitution, but through texts only, and not through practice. There was an industrial scale of prostitution, with rampant paedophilia, all of which was due to the excessive situation of poverty. When it was women and children involved, there was an imbalance between civil society bemired in corruption and the political power. Regarding religion, 75 per cent of inhabitants were Christian, 16 per cent were of Muslim allegiance, and the rest were animists or Hindus. The concept of slavery was also deeply-rooted in society.

The questions raised on the list submitted by the Rapporteur, he said, were linked to the situation in which the country found itself.

Committee Experts then raised and highlighted various issues, including the ethnic composition of the population of Malawi; the issue of anti-discrimination legislation, which did not appear to be in keeping with the requirements of the Convention; the situation of the Malawian Commission on Human Rights which could not operate fully due to a lack of resources; the issue of refugees and asylum-seekers, as Malawi was confronted with grave problems in terms of population movements, mainly from Burundi and Rwanda; whether Malawi was notified of the meeting, which was the case, as they had been notified several times, in keeping with established procedure, both in writing and by telephone; and the fact that Malawi had ratified a number of human rights Conventions, but had not been able to submit a number of its due reports linked to these Conventions, and Experts suggested asking Malawi whether it had considered asking for the help of the Office of the High Commissioner for Human Rights in this regard.

The hope was expressed that the list of questions would be helpful to Malawi in order to help it to meet its obligations and submit its next report when it was due. Experts also noted that the situation of Malawi, which was a country in great distress, indicated the need not to censure that country, but rather to enter into contact with the State party in a spirit of dialogue. As Malawi had never submitted a report, the Committee had never received first-hand information, and it was therefore difficult to draw conclusions, an Expert pointed out, and urged caution, saying that it could be a good thing to take one more step by approaching the Malawi mission in New York, and to do so in person, and not in writing.

In final remarks, Mr Amir noted that the Committee’s concerns were also the concerns of the people of Malawi. Problems continued in Africa in terms of customs and the will to build the State, which could run against the wishes of the population. The issues raised by diplomatic missions were often considered secondary compared to the pressing issues linked to daily life in difficult situations. Malawi had not replied to diplomatic representations, but it was not the only country that did this, and it was a frequent situation in a continent where conditions were becoming increasingly pressing.

The list of issues for submission to Malawi was adopted at the end of the meeting.

For use of the information media; not an official record

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