by Jessica O'Neill, chairperson of IRLI's Blackhall Trainee programme.
This blog post was first published in the Cambridge University Human Rights Law Society Blog and draws upon research conducted at IRLI on Malawi's compliance with its obligations under international human rights law.
This blog introduces the legal position of women in Malawi and highlights the efforts made by Malawi towards improving access to justice for women. It explains developments in key statutes that have been made towards achieving this goal, such as the Citizenship Act, 1966. The post concludes by identifying problems which must be overcome to secure gender equality in legislation.
In 1993, Malawi ratified the International Covenant on Civil and Political Rights (ICCPR) . The ICCPR focuses on those issues which are central to the fulfilment of life including freedom of speech, food, and education, to name but a few. Inarguably, the equality of all persons is paramount to the enjoyment of any and all human rights. This notion is set out in Article 3 of the Covenant which reads ‘the State Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant’ .
Access to justice is deemed a basic tenet of the rule of law, yet women in Malawi have struggled historically to obtain this entitlement. In recent years, the State has made progressive attempts to offer legal protection by passing legislation to address the power imbalance and promote fairness. The Gender Equality Act, 2013 is one such display of commitment to the cause but women are still confronted with problems if the legislation is not effective in actually reaching the public. For statute to be successful, strong efforts are needed to educate the judiciary, the police and the people generally on the situation of women and the change in law . Such advancement does not warrant complacency, however, as existing laws which discriminate against women have yet to be amended or repealed.
In this piece, I explore the position of women in Malawi. In so doing, I consider the impact their marital status has on how they are treated in law and the steps that have been taken by the State to advance equal treatment of their rights.
National Legislative Measures
Firstly, Section 24(1)(b) of the Constitution of the Republic of Malawi provides that ‘on the dissolution of marriage, women have the right to a fair disposition of property that is held jointly with their husband.’ Therefore, the constitution prohibits gender discrimination. However, the statutory law which exists alongside this document is applied in a discriminatory manner. s17 of the Married Women Property Act 1882 is interpreted such that property is only held jointly, if a direct financial contribution is made to its acquisition, therefore failing to account for the indirect contributions made by women namely in the house . In light of the fact women make more non-monetary contributions to the property than their male counterparts, this provision indirectly discriminates against women in Malawi. Therefore, this often results in women being denied their marital property rights. As consequence, the judiciary is therefore failing to defend the guarantees provided for in the Constitution in choosing to interpret legislation in a way which produces unjust results and much hardship for women.
Secondly, the Deceased Estates (Wills, Inheritance and Protection) Act of 2011 is a welcome addition to the law for Malawian women. The Act makes ‘property grabbing’ a criminal offence  and provides for the protection of the spouse’s and children’s share in the estate. It is regrettable that the Act does not expressly forbid widow cleansing and inheritance by means of harmful cultural practices as such provision would have acted as an additional safeguard to the female population . However, this statute is a triumph for society. It is hoped that the State Party will improve and expand on the popularisation of this legislation by means of an awareness campaign to notify society of its achievement.
Thirdly, until recently, s 9 of the Citizenship Act 1966 in Malawi discriminated against women on the basis of marital status . This provision effectively provided that when women acquired citizenship of another country other than Malawi through marriage, they ceased to be a citizen of Malawi within one year of the anniversary of the marriage. In the absence of a similar requirement for men marrying foreign women, this provision has long been seen as a barrier for Malawian women in their fight for equality . Remarkably, this Act was amended in 2019 to allow for dual citizenship . This development marks an important change for the women of Malawi; strengthening their rights as individuals, empowering their lives as human beings. In what can only be described as a watershed moment for gender equality, the introduction of dual citizenship has been hailed for its significance . This legislative adjustment is a signal of hope and illustrative of the efforts needed to strengthen the legal protections afforded to women.
Malawi has shown dedication in its law-making capacity for social reform. Without affirmative action though, rights remain illusory. There are still prevailing legislative provisions which on interpretation by Malawian courts, discriminate against women unfairly. The existence of statutes is always commendable, but we must make use of laws when they are at hand, call on the judiciary to apply them appropriately and inform citizens that they are available to them. Although State Parties should be praised for taking positive actions towards improving the status of women in society, indirect forms of discrimination are often more harmful than the obvious barriers to equality. With this in mind, State Parties must ensure that citizens are aware of developments in the law if we are to fully recognise the enjoyment of rights by women. Such measures are necessitated to guarantee equal protection for women and non-discrimination on the basis of their marital status.
International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, art. 3, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (acceded Dec. 22, 1993) [hereinafter ICCPR].
 ibid, Article 3.
 Concluding Observations of the Committee on the International Covenant on Civil and Political Rights UN Doc. CCPR/C/MWI/CO/1/Add.1 19 August 2014 para 7.
 Committee on the Elimination of Discrimination Against Women, “Consideration of Reports Submitted by States Parties under Article 18 of the CEDAW, Combined Second, Third, Fourth and Fifth Periodic Report of States Parties: Malawi,” CEDAW/C/MWI/2-5, 28 June 2004, para. 16.11.1.
 Section 74 of the Act.
 Joint Submission by Centre for Human Rights and Rehabilitation (CHRR) & Centre for Civil and Political Rights, June 2014 https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/ Download.aspx?symbolno=INT%2fCCPR%2fCSS%2fMWI%2f17471&Lang=en
 Chapter 15:01 Laws of Malawi, section 9
 Dr Mwiza Jo Nkhata, Malawi Shadow Report on the International Covenant on Civil and Political Rights submitted by the International Gay and Lesbian Human Rights Commission (IGLHRC) 8;https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT %2fCCPR%2fCSS%2fMWI%2f17470&Lang=en.
 Malawi Citizenship (Amendment) Act No.11 of 2019; the Amendment repeals sections 8-11 of the Citizenship Act 1966 to permit dual citizenship.
 Austin Kakande, Malawi Adopts Dual Citizenship Concept, MBC (Dec. 13, 2018).