Malawi

The appellant, a mother who shared two young children with the respondent, appealed a judgment awarding custody of the couple’s children to the respondent after their divorce. At the time of the original custody order, the children were residing with the appellant in Malawi, but the court granted custody to the respondent to raise them in England.

The plaintiff was employed by the defendant until she was dismissed immediately and without formality after she tested positive for HIV during a voluntary test. Before her termination, the plaintiff had never been incapacitated due to her HIV status and was leading a normal life. The court held that fair labor practices entitle a terminated employee to know the reason for their dismissal and to explain and defend themselves.

The Child Care, Protection, and Justice Act regulates the care and protection of children, including regulation of: the responsibilities and rights of parents; the role of local authorities; prohibiting harmful practices; procedures when children are accused of crimes; establishment of a child justice court system; and general child welfare. Under Section 78, no child can be taken without the consent of a parent of custodial figure. Punishment for such a crime is up to 10 years imprisonment.

In recognition of the inherent dignity and worth of each human, Article 12 requires that the State and all persons recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups, and minorities. All persons have equal status before the law. Limitations of rights are only justifiable insofar as they ensure peaceful human interaction in the context of an open and democratic society.

Although Malawi has crimes eligible capital punishment, sections 327 and 328 of the Criminal Procedure and Evidence Code provide that any woman who receives such a sentence must undergo an inquiry to confirm that she is not pregnant before the sentence is carried out. The court will determine whether or not she is pregnant based on evidence presented. A decision that a woman is not pregnant is appealable to the Supreme Court of Appeal. A woman who is determined to be pregnant shall have her sentence changed to life imprisonment.  

The Deceased Estates Act provides for all issues related to wills and inheritances, and disputes thereof. The Act is gender neutral in terms of who may make, execute, and receive inheritances. Unless otherwise provided for in the Act, inheriting property to which a deceased person was entitled at their death under other written or customary law is prohibited. The Act provides protection for the property rights of all members of the immediate family and dependents of a person who dies intestate.

On appeal, the High Court considered a divorce decree. The High Court considered the allegation that African customary law required women to be housekeepers, engage in the domestic sphere, and that failure to fulfill these duties legally could result in a divorce. The High Court agreed that customary requirements of women within the household, when not being fulfilled during the course of a marriage, were sufficient grounds for divorce.

The Second Grade Magistrate Court in Machinga sentenced the appellant to nine months’ imprisonment  for the offence of negligently doing an act likely to spread a dangerous disease contrary to Section 192 of the Penal Code when she breastfed another woman’s infant while under treatment for HIV.

The Employment Act of 1999 applies to the private sector and the Government (Section 2), and seeks to establish and enforce minimum standards of employment in order to ensure equity that is necessary for industrial peace and economic growth. Certain provisions of the Employment Act specify penalties associated with certain violations (Section 66), and establish that the Industrial Relations Court has jurisdiction to impose all such penalties and remedies specifically provided for (Section 3).