Leiden Law Blog

Daily Children’s Rights Dilemmas in Malawi: give me my money

Posted on by Maria de Jong in Private Law
Daily Children’s Rights Dilemmas in Malawi: give me my money

For three weeks I lived on the compound of an NGO called ‘Stephanos Children’s Home’ near Blantyre in Malawi. Its orphanage shelters around 50 children. I interviewed High Court Judge Fiona Mwale who is responsible for overseeing criminal and civil matters involving children. I also taught children about children’s rights and visited the Mpemba Boys Home. This gave me the opportunity to experience the daily reality of how children’s rights are implemented in one of the poorest countries in the world. I learned a number of lessons:

Poverty and dependency hinder the implementation of children’s rights

We arrived in Malawi during harvesttime in April this year. Because of extreme floods in January, the harvest was bad and would only be sufficient to last till September. Four million Malawian children are living in poverty (on less than USD $ 0.32 a day). Moreover, one in every five Malawians lives in ultra-poverty (on less than USD $ 0.20 a day) and cannot afford to feed themselves (for a general overview about the situation of women and children in Malawi, see here). The Millennium Development Goals Report 2015 contains some good news about Malawi: there has been a sharp decrease in under-five mortality and the proportion of under-five children sleeping under insecticide-treated mosquito nets has risen (from 3%-66% in about 12 years). Children are being helped to escape extreme poverty. But reality hits home when you take into account that almost all forms of development are initiated by international NGOs: a widow with nine young children lost her house because of the floods. Her children do not attend school: they have to work out on the fields. The only help offered came from an international NGO which built her a new house. Possibly no one else had the resources to help her out, but this is a good illustration of the complex donor-recipient relationship. While making a road trip across Malawi we discovered that almost all signs of development (a hospital, a school etc.) had been initiated and funded by international NGOs. Children we met along the way – even three-year-olds - often asked us: “give me my money”.

Pursuant to Article 4 of the Convention of the Rights of the Child, States Parties assume the obligation ‘to take all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.’ Years of dependency on NGOs raises the question how such a mentality of dependency can be transformed into more participative co-operation, especially in children themselves.

Deinstitutionalization (DI) needs close monitoring and support

Malawi has 104 childcare institutions of which 63 are orphanages, according to a study by Unicef. Children with a disability account for one in six children in such institutions. Judge Mwale told me that some of these homes are in such a deplorable state that you would not even want to use them as a cattle shed. The Stephanos Children’s Home used to shelter more than one hundred children but has more than halved its population because of its new DI policy. The Guidelines for the Alternative Care of Children call for an overall DI strategy (par. 23); the downside is that donors are more willing to give money to an orphanage than to community-based projects so revenues are diminishing!

We met P., a disabled 12-year-old boy who has been placed regularly in the orphanage. Due to a focus on the DI of children and the fact that P. does have a family, the orphanage often tried to return P. to the care of his family. This brief case description raises two dilemmas: 1. The definition of orphans and 2. Orphanages as a dumping zone. Unicef defines an orphan as a child who has lost one or both parents. In Malawi, it is estimated that there are more than 700,000* -1,000,000 orphans. Exact figures are not available because of definition problems and difficulties acquiring meaningful statistics. Second, childcare institutions should only be used as a measure of last resort. The problem of orphanages as a dumping zone for children has been described by Sloth-Nielsen & Mwambene:

‘…most children come within a radius of 20 km [from the orphanage] which suggests that these homes are a dumping zone, or that parents cannot support their children in the family environment’.

When P. was sometimes sent to live with his family, workers of the orphanage saw him begging around the airport. His family did not want him back and there was no other option left to him than to live on the streets. This situation is not uncommon. Back home from the orphanage, the returned child is another mouth to feed and often he or she is beaten or starts to lose weight. The Stephanos Children’s Home invites children to come back for a week after a period of time, just to monitor the actual well-being of the child.

P. now lives in the orphanage and goes to school, but for children with special educational needs a school career means spending years in the first one or two forms at primary school. There are no specialized facilities or schools for most of these children. Disabled children are the worst off of all.

Teaching children’s rights is an effective method of research

During a lesson on children’s rights I asked children (6th and 7th form of primary school) to mention a children’s right which was the most important to them. Answers I got included:

‘The right to survive’
‘The right to clean drinking water’
‘The right to clothing’
‘The right to enough food’

Actually, all their answers had to do with the right to an adequate standard of living. Their basic needs are not being met (from September till the new harvest next April!), thus this is what they are longing for. I also asked these children to draw their favourite children’s right or a favourite children’s responsibility. The most favourite children’s right: the right to play. The most favourite children’s responsibility: ‘the responsibility to carry water’ and ‘the responsibility to work hard at school’. Teaching children’s rights is an excellent way to find answers to your own research questions and offers the possibility of a give-and-take situation. Children’s rights specialists can share their knowledge with children while at the same time children’s rights education is an interesting research tool.

Children’s Rights are about ‘where to start’

Despite major law reforms like the Marriage, Divorce and Family Relations Act (2015) that sets 18 as the minimum age for marriage which is an important step towards preventing child marriage, the Child Care Protection and Justice Children’s Act (2010) which is the principal legislation on all matters affecting children in Malawi and – not forgetting – ratification of both the Convention on the Rights of the Child (1991) and the African Children’s Charter on the Rights and Welfare of the Child (1999), on the level of implementation the most important question remains: where to start? Judge Mwale told me about a case of a village where lots of children suffered from diarrhea because of poor water and sanitation. Chlorine tablets were distributed but one mother did not know how to use them and gave them to her daughter to drink. She died on her way to the hospital. Sadly enough, she had not been registered at birth (Malawi has a birth registration rate of less than 20%), and thus was not recognized as a person before the law. The impact of non-registration is huge: in the eyes of the law, no one had died. A link also exists between birth registration and child protection in general. Birth registration is the first step towards establishing the existence of a person under law.

Children’s rights, in essence, are about dignity

The Preamble of the Convention on the Rights of Child starts with the recognition of the inherent dignity of children. While travelling through Malawi it struck me that dignity lies at the heart of children’s rights. Dignity means that you make every effort to give all children the opportunity to go to school. That you make every effort to register babies at birth. That you make every effort to give disabled children like P. the education he needs. That you realise that children begging for my money and endless help from NGOs eventually does not help children to become active citizens in a modern Malawian society.

Well-considered policy on children is being established in Malawi but ‘on the ground’ there is still so much work to be done.


* J. Sloth-Nielsen & B.D. Mezmur, ‘HIV/Aids and Children’s Rights in Law and Policy in Africa: Confronting Hydra Head on’, in J. Sloth-Nielsen (ed.), Children’s Rights in Africa: a Legal Perspective, Aldershot: Ashgate 2008, p. 279-298. 

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