I will begin my address by acknowledging the greatest honour and privilege that has been accorded to me to be part of this august gathering. The possibility of having Chief Justices of the World or their representatives converge and participate at this distinguished School, a center of excellence for the young persons is no mean achievement. On behalf of the Malawi Judiciary and indeed on my own behalf I wish to extend my great appreciation for this special recognition accorded to Malawi to make our contribution in a bid to make justice safeguard the future for the children born and yet to be born and make their world a better place to live. The Malawi Judiciary has been part of these annual Conferences for sometime now. The Judge Presidents of the High Court of Malawi have previously represented the Chief Justice. The Judge Presidents and the Retired Chief Justice Honourable Justice Unyolo, SC., have spoken very highly of the success of the previous Conferences and reported the outcome thereof.
Receive my heartfelt congratulations Mr. Gandhi and your City Montessori School World Unity and Peace Education Department for organising this successful 8th International Conference of Chief Justices of the World.

The theme for this 8th International Conference of the Chief Justices of the World: Empower the International Court of Justice to Safeguard the Future of the World's Two Billion Children and Generations Yet to be Born, is a timely subject. Empowering the International Court of Justice is a demonstration by the World Judges towards attaining a special recognition of humanity even in its earliest stages of life. My address will focus in highlighting some of the abuses that children are exposed to in my jurisdiction in form of undesirable practices. The purpose of this address is to bring to the attention of the world judiciary on the need for the International Court of Justice to protect children from undesirable practices in order to safeguard the present and future of our children. This presentation is largely based on the draft findings and recommendations on child justice by the Malawi Law Commission and the draft Child (Care, Protection and Justice) Bill.

PROTECTION OF CHILDREN FROM UNDESIRABLE PRACTICES

In addition to the multi-sectoral policies and other programmes promoting the rights of the child, the Malawi Government signed the Millennium Development Declaration adopted at the United Nations (UN) General Assembly in New York in September 2000, and has since ascribed to the United Nations Special Session on Children in 2004 and the World Fit for Children (WFFC) in 2005. In Malawi, the Millennium Development Goals (MDGs) are to be achieved through the implementation of the Malawi Poverty Reduction Strategy (MPRS 2002-2006) and its successor, the Malawi Growth and Development Strategy (MGDS 2006/ 07-2010/ 11). The overriding philosophy of the MGDs is poverty reduction through economic growth and development. The MGDs identifies five broad strategic themes that define the direction the country intends to take in the next five years. Priority in the medium-term will be the achievement of sustainable economic growth, social protection of vulnerable people, social development, infrastructure development and rehabilitation, and provision of good governance. The purpose of the MGDs is to serve as a single reference document for policy makers in Government, the private sector, NGOs and cooperating partners on the Government's socio-economic development priorities. Child rights issues across all sectors have been mainstreamed in the implementation strategies for all five thematic areas of the MGDs. The thematic area, social protection, in particular, covers the rights of children in dealing with education and health.

The Child (Care, Protection and Justice) Bill is the most comprehensive attempt at integrating the principle of 'the best interests of the child', in legislation in Malawi. This Bill is a comprehensive attempt to domesticate the Convention on the Rights of the Child in Malawi as it extends beyond issues of child justice to include matters pertaining to:

i. Duties and responsibilities of parents towards their children,

ii. Determination of children in need of care and protection,

iii. Guardianship,

iv. Fosterage,

v. Residential placements,

vi. Powers and duties of child justice courts in care and protection matters,

vii. Duties and functions of local authorities relating to child justice and protection, and

viii. Protection of children from undesirable practices.

In highlighting the need to protect children from undesirable practices this paper focuses on the following issues: child labour, child abduction, child trafficking, child sexual abuse and undesirable cultural practices.

(a) Child labour

Child labour means work or employment situation where children are engaged on a more or less regular basis to earn a livelihood for themselves or their families. The Malawi Law Commission in its review of the child related legislation noted that in the Malawian society, child labour is considered as an important element in maturation of the child, securing the transition from childhood to adulthood or is essential for family survival.

Sometimes children engage in work because their parents wilfully neglect them during the subsistence of marriage and not just after divorce or during separation. Previously, in 1998, the Malawi Law Commission, in its Technical Review of the Constitution, made recommendations giving every child the right to maintenance from his or her natural parents, whether married, unmarried or divorced, and from their guardians, particularly including orphans, children with disabilities and other children in situations of disadvantage. This recommendation has not yet been enacted as legislation.

However the proposed Marriage, Divorce and Family Relations Bill has made provision for the filing of maintenance suits even during the subsistence of marriage. The enactment of this Bill will guarantee that the rights of the child are mainstreamed in the family law framework by obliging parents to provide for all the necessaries of life, including shelter and accommodation. The proposed Bill gives either children or any next of kin or close relative to the child, as well as any party to the marriage, the right to apply for a maintenance order in cases of child neglect during the subsistence of marriage. Further, the Bill also integrates the principle of the best interests of the child by providing that where a party to a marriage neglects to maintain the other party or the needs of a child to such an extent that their health, safety, security, nutrition and education is adversely affected, this will constitute notifiable family misconduct. Notifiable family misconduct places any of the parties, children, next of kin or relatives under obligation to report the matter to the Minister of Women and Child Development. Maintenance can also be claimed under such circumstances.

Although child labour has adverse effects on the child, this is rarely considered, mainly because the effects are not evident on the spot. There is however international general consensus that childhood is a period of life which should be concetrated not to work, but to education and development; that child labour, by its nature or because of the conditions in which it is undertaken, often jeopardizes children's possibilities of becoming productive adults, able to take their proper places in the community.
In Malawi child labour is regulated by the International Labour Organisation Convention, the Constitution and the Employment Act. The Constitution protects children from economic exploitation or any treatment, work or punishment that is, or is likely to -

(a) be hazardous;

(b) interfere with their education; or

(c) be harmful to their health or to their physical, mental, spiritual or social development.

After considering the Constitution, the Employment Act and the International Labour Organisation Convention the Malawi Law Commission recommends

* that the Employment Act be amended by replacing the words "between the age of fourteen and eighteen years" with the words "below the age of eighteen years." in section 22(1) of the Act.

* The Commission also recommends the introduction of a provision prohibiting the employment of children below ten years of age in all circumstances.

* A provision be inserted in the employment Act prohibiting employers or any person from engaging a child under the age of fourteen years in night work which constitutes work between the hours of eight o'clock in the evening and six o'clock in the morning.

(b) Child abduction

In Malawi we have also observed that post-divorce parental child abduction has been on the increase in recent times, paralleling the rising divorce rate and the escalating litigation over child custody. The term "child abduction" encompasses the taking, retention or concealment of a child by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights, of another parent or family member.

The abductor usually moves from one place to another resulting into abuse of the child with each move. Or, the abductor may flee to another country completely shutting down any hopes of involvement by child care and protection service providers in the country of origin. This leaves the child completely vulnerable to the dictates of the abductor, who, may view the child's needs as secondary to his or her agenda, which sometimes is to provoke, agitate, control, attack or psychologically torture the other person who has lawful custody over the child.

The Convention on the Rights of the Child, makes provision that State Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of children for any purpose or in any form . Further, the Convention on the Civil Aspects of International Child Abduction , states that it is considered as a wrongful removal or a wrongful retention of a child where -

(a) it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention, those rights were actually exercised, either jointly or would have been so exercised but for the removal or the retention.

Child abduction being of serious psychological consequences as it is, calls for national statutory provisions prohibiting the practice and for the International Court of Justice to be empowered to protect children from such practices.

(c) Child trafficking

The trafficking in children is of late a global problem affecting large numbers of children in some third world countries. There seems to be a demand for trafficked children for cheap labour or for sexual exploitation. Children and their families are often unaware of the dangers of the trafficking, believing that better employment and lives lie in other countries. However trafficking in children always violates the child's right to grow up in a family environment and, as indicated earlier, these children do face several problems including violence and sexual abuse. Accordingly trafficking in persons and children in particular ought to receive renewed attention by the World Judiciary.

In considering possible measures to address the problem the World Judiciary should be guided by the United Nations Protocol to Prevent Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Trans-national Organised Crime. The primary objectives of this protocol are -

* to prevent and combat trafficking in persons, paying particular attention to women and children;

* to protect and assist the victims of such trafficking, with full respect for their human rights; and

* to promote cooperation among State Parties in order to meet these objectives

Under the protocol, trafficking in persons has been defined as to mean the recruitment, transportation, transfer, habouring or receipt of persons, by means of threats or use of force or other forms of coercion, or by means of fraud, deception, abuse of power or by means of giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. The consent of the victim of the trafficking is irrelevant where any of those means have been used.

(d) Child sexual abuse

Child sexual abuse includes a wide range of sexual behaviour that takes place between a child and an adult. There is no universal definition of child sexual abuse. However, a central characteristic of any child abuse is the dominant position of an adult that allows such adult to force or coerce a child into sexual activity .

Child abuse is not restricted to physical contact; it includes non contact abuse, such as exposure to sexual activity or child pornography. In Malawi accurate statistics on the prevalence of child sexual abuse are difficult to collect because of problems of under reporting and the lack of a legal definition of what constitutes the term.

The Convention on the Rights of the Child makes provision that State Parties should protect children from all forms of sexual exploitation and sexual abuse. States Parties shall take all appropriate national, bilateral and multilateral measures to prevent-

" the inducement or coercion of a child to engage in any unlawful sexual activity;

" the exploitative use of children in pornographic performances and materials;

" the exploitative use of children in prostitution or other unlawful sexual practices.

In Malawi, there is no express law that criminalizes child sexual abuse. The Penal Code does make provision against defilement of girls under thirteen years of age.

owever this provision lacks essential elements of "child abuse". First, defilement has been defined as "carnal knowledge of a girl below thirteen years". Child abuse, however, is wider than just carnal knowledge and is applicable even to "boys", and not just "girls".

In 2005 the Ministry of Women and Child Development developed the "Stop Harming and Exploiting Children" project, which the Ministry has been implementing, together with other partners, with significant success. It aims at creating a protective environment for children, with emphasis on the most vulnerable, through protection, prevention and rehabilitation. More awareness has led to more reporting of cases of child abuse. The Ministry is currently in the process of developing a National Policy on Child Protection, which will assist in the regulation and standardisation, as the implementation is being done with various partners.

The Malawi Government plans to build hostels for girls in Community Day Secondary Schools to protect girls from abuse. The lack of boarding facilities at these schools compels girls to rent accommodation in insecure and generally unsuitable accommodation where they are vulnerable to abuse. This is an interim measure aimed at protecting girls in existing boarding schools whilst awaiting the implementation of the plan to phase out boarding schools altogether.

The school management structures namely School Management Committees (SMCs) and Parents and Teachers Associations (PTAs) have been empowered to involve females, especially girls and young mothers, to be included in management processes.

(e) Undesirable cultural practices

The Malawi Law Commission has noted that some cultural practices currently taking place in Malawi are harmful to children. The Commission had in mind cultural practices such as feminine genital mutilation, forced sexual intercourse during initiation ceremonies, circumcision outside registered health centres, forced and early marriages whether in settlement of debts or not, child labour in satisfaction of debts. The Convention for the Rights of the Child as well as other foreign municipal statutes on children restrict the abolition of cultural practices to those that are prejudicial to the health of children.

The Malawi Law Commission's Gender-Related Law Reform Programme that was instituted in 2001 includes the development of a Gender Equality Bill that proposes to abolish certain harmful gender-related customary laws and practices, with specific reference to the girl child. This includes the abolition of discriminatory inheritance practices between the girl and boy child. Under the current law, upon marriage, a daughter inherits less than a son. Further there is need to abolish practices such as forced sexual intercourse with young girls during initiation ceremonies upon reaching puberty.

The development of a Gender Equality statute aims, amongst other things, to eliminate detrimental cultural practices. This proposed statute augurs well for the protection of children, especially the girl child, from cultural practices that are discriminatory and harmful to the physical and psychological development of the child. Whilst this is an achievement in terms of the elimination of discrimination on the grounds of sex, a lot still needs to be done to eliminate discrimination on grounds of disability as the cultural mindset to reject such children remains deep rooted and prevalent.

MALAWI POLICIES AND PROGRAMMES

I would also like to share with you the policies and programmes being implemented in my jurisdiction in an effort to safeguard our children.

National Juvenile Justice Forum (NJJF)

The National Juvenile Justice Forum (NJJF), headed by the Malawi Judiciary, runs programmes that actively promote the best interests of the child. The objective of the Forum is to perform advocacy for reform, networking, documentation and coordination of functions. It has regional branches in the districts of Blantyre, Lilongwe, Zomba and Mzuzu. The Forum has been involved in the development of proper criteria for diversion, and appropriate national diversion options as an alternative to detention of children as well in the development and institutionalization of national monitoring systems that produce reliable data and valid research to benefit stakeholders and key decision-makers. The most notable achievement of the Forum is the implementation of diversion for minor offences as part of restorative justice which ensures that a child in conflict with the law is viewed and treated as a child and not an offender. It prevents the child from being criminalized by the community and reinforces the protection of a child so the child is not imprisoned. Whilst awaiting the enactment of the Child (Care, Protection and Justice) Bill which specifically provides for diversion, it is already being promoted as best practice at police level. The current legislative framework on child justice does not prohibit the use of diversion, hence its use on the ground. Furthermore, at court level, the Forum is pushing the Judiciary to be proactive by lobbying my office to issue a practice direction on diversion. Once this becomes effective children in conflict with the law will be diverted back into the community where trained community child protection workers jointly with communities will closely monitor the reformation process of these children. The Juvenile Justice Forum (Blantyre) has already printed and disseminated a practice guide on diversion.

In terms of juvenile justice, the proposed Child (Care, Protection and Justice) Bill attempts as far as possible to deal with children in conflict with the law within the family setting and their reformation process will be monitored by specially trained probation officers. This is done through diversion and the prohibition of imprisonment as well as by settling on detention for children at reformatory centres only as a last resort.

Stop Harming and Exploiting Children

The "Stop Harming and Exploiting Children" project, coordinated by the Ministry of Women and Child Development, has contributed to an increased awareness and application of the principle of the best interests of the child by creating a protective environment for all children. One of the activities under this project is the protection of children already exposed to situations that might harm their physical, intellectual, emotional and psychological development by establishing child-friendly courtrooms for children in conflict with the law. The major achievement of this activity is the establishment of three Child Justice Courts in Blantyre and Zomba between December 2005 and May 2006, and in Mzuzu in October 2007 with support from Forum. Although under the current legislation, the Children and Young Persons Act expressly provides that children should be tried separately from adults in special sessions in which the court sits as a juvenile court with less formality and restricted access, I regret to state that this has not always been done in practice. The Children and Young Persons Act requires that existing courts be used as children courts on an ad hoc basis. This makes it difficult for inadequately-trained court personnel to psychologically make the transition to operating in a child-friendly manner. Under the "Stop Harming and Exploiting Children" project the child-friendly courts have been equipped with cameras to offer services to child victims of abuse and court personnel have been trained. The project is bridging the gap in child justice whilst awaiting the enactment of the Child (Care, Protection and Justice) Bill, which makes provision for a separate justice system for children. In places where the project has not established separate child-friendly courts, the office of the Chief Justice issued a practice direction requiring senior Magistrates to preside over cases involving children to ensure emphasis on the best interests of the child and reasonable sentences for offenders.

Victim Support and Child Protection Units

The Malawi Police Service has established 34 Victim Support and Child Protection Units at district level to offer child-friendly services to both child victims and children in conflict with the law. In the provision of these services, the police manning these units have been trained to ensure that the best interests are paramount.

Media Coverage

Government as well as donor community stakeholders have made deliberative efforts to sensitize the media on how to report on cases involving children without prejudicing the best interests of the child. This includes responsible reporting that does not to expose the names of victims of child abuse. Further, Government has worked with the media to introduce a culture of openness in discussing child abuse and protection. This has resulted in increased reporting of child abuse cases by the media to the appropriate authorities.

Board of Visitors

The Children and Young Persons Act provides for a Board of Visitors that are among other activities allowed to visit children in prisons in order to accelerate the hearing of their cases and where possible to assist in getting the children out of prison into reformatory schools. The Board is chaired by a Judge of the High Court and currently visits the prisons four times a year and ensures that the principle of the best interests of the child is complied with as far as possible.

Child Protection Workers

The principle of the best interests of the child is also emphasized in community dialogue programmes and by Child Protection Workers employed by the Ministry of Women and Child Development. These work in the community and ensure that its members are also aware of the importance of the application of the principle in decisions of daily life.

Statute

The Prevention of Domestic Violence Act complements criminal law and adds to it by acknowledging the various forms in which domestic violence can manifest itself. These forms are:

i. economic abuse/ financial abuse,

ii. emotional or psychological abuse/ social abuse, and

iii. sexual abuse.

Guidelines for health care providers

The Ministry of Health and Population has developed guidelines for health care providers on the management of sexual offenses. These guidelines specifically contain provisions on child sexual assault and deals with Sexually Transmitted Infections (STIs) in children, HIV post exposure prophylaxis (PEP) and pregnancy and emergency contraception for children.

CONSTRAINTS

Despite the progress achieved through the outlined programmes, some important challenges remain, including the following:

" In certain instances, child abduction cases are compounded by the murder of the child with different body parts removed. It has been reported that these body parts are used in witchcraft. Perpetrators can only be tried for abduction and murder since the Witchcraft Act does not recognize the practice of witchcraft as an offence.

" Child neglect and child abandonment cases are also reportedly on the increase due to rising poverty levels as well an increase in the number of teenage mothers. This is quite a challenge as interventions should be multi-sectoral and are not always co-ordinated.

" The demand for programme interventions in most issues is enormous, the effectiveness of interventions is usually hampered by inadequate financial, capital and human resources.

" There are plans to increase the coverage of counselling services by scheduling the training of police officers in Victim Support Units, since to date there is a lack of trained counsellors for child victims and witnesses, including counsellors trained in play therapy.

" The impact of the HIV and AIDS epidemic on children has been particularly devastating. Orphaned children are at an increased risk of losing family property, further escalating levels of poverty amongst this vulnerable group. The death of parents due to AIDS also results in a shift of family responsibilities to the child especially the girl child. In addition to the high number of orphans due to AIDS, there is also a high number of children made vulnerable because their parents or guardians are suffering from AIDS-related illnesses. The high levels of poverty and increased family responsibilities adversely lead to children facing stigma, discrimination, economic and sexual abuse, hunger, homelessness, and more poverty. Again, the poverty and exclusion associated with Malawian orphans is particularly acute with regard to girls. Orphans often have few clothes, no bedding, and no soap. This is critical in the case of girls, especially in terms of sanitation after they reach puberty. Hunger and social exclusion undermine school attendance and lead to further social exclusion. Community care of orphans is overwhelmed and disintegrating. Further, children in these situations have limited, if any, access to psychosocial support, health care and clean water and sanitation. Malawi's proposed Deceased Estate (Inheritance and Protection) Bill as well as the Adoption (Amendment) Bill will hopefully address some of these issues once enacted.

CONCLUSION

The Malawi Judiciary is full of support of empowering the International Court of Justice in safeguarding the future of the children of the world as it will go a long way in upholding children's rights. This paper highlighted some of the problems that our children face in order to give some guidance to the World Judiciary on the need to focus on protecting children from undesirable practices like child labour, child abduction, child trafficking, child sexual abuse and undesirable cultural practices which are prevalent in Malawi and possibly some Third World countries.

I thank you for your kind attention. May God bless you all.