Prof Danwood Chirwa: The backward turn, Tonse govt assault on Malawi women’s rights

The uproar about the exclusion of women from the recently announced parastatal Board appointments by the new Tonse Alliance government is at once an issue of moral commitment and of legal compliance, domestic and international. As a moral question, it speaks to the attitude of the new government to women: whether it sees them as full citizens equal to mentor whether it regards them as the invisible other, second-rate citizens whose existence is dependent on, and mediated through, men. It is, in short, about the objectification and marginalisation of women who have historically been considered half than, less human than and less capable than men.

As a legal question, it is about the supremacy of the Constitution as the source of all executive and legal action, values and principles. Equality before the law and equal opportunity are both fundamental values underlying the Constitution and constitutional rights. Non-discrimination is a non-derogable right.

Much as the extent to which the new government has targeted women, who constitute half the population of Malawi, for exclusion from Board appointmentshas been received with shock, it was not unexpected. The assault on women’s dignity and rights by the new government began with the appointment of Cabinet which was staggeringly male dominated.

In addition, President Lazarus Chakwera wiped out, in one sweep, the entire Ministry dedicated to women and children affairs as obscure and worthless new ministries such as the Ministry of National Unity were introduced and despite the considerable increase in the overall number of ministries.

More recently, the government has been lackadaisical in its approach to the proposed bill seeking to regularise the existing widespread practice of abortion. It has abysmally failed to mobilise its parliamentary caucus towards the goal of advancing women’s health and reproductive rights enshrined in the two major international treaties Malawi has ratified and committed to implementing: the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

The fallout from the Cabinet appointments has not yielded any lessons. The new government has proceeded to announce Board appointments that, like the earlier Cabinet appointments, seek to reward the men who helped the alliance gain political power at the expense of women who played an equally important part at the ballot box and in the agitation for change.

The totality of these actions and omission reveal a clear intention of the new government to reverse the gains that have been made over the last 25 years to recognise women as human beings with full rights. The adoption of the Constitution in 1994, which included specific provisions on women’ rights, has been supported by several gender-related statutes such the Wills and Inheritance Act, the Gender Equality Act and the Marriage Act. The proposed Abortion Bill is meant to complement these legislative efforts, following the concluding observations of the UN CEDAW Committee made in 2015.

There can be no doubt that the Board appointments constitute a violation of the human dignity of women, not just their right to be treated equally before the law and to be afforded an equal opportunity. By excluding women from several Boards, appointing almost 80 percent of men to 67 Boards, and appointing only seven women as chair persons of all these Boards, the new government has reinforced the stereotype that women are incompetent and incapable of contributing to public decision making.

The only Boards that have more than 50 percent representation of women are the Nurses and Midwives Council (with 71 percent) and the Malawi Institute of Education (with 75 percent). This too confirms stereotypes about gender roles that maintain that women are responsible for the education and care of children and the sick. The most critical sectors have excluded women altogether or included a negligible number of them.

Some have argued that the Gender Equality Act limits its provisions to appointments in the public service. They have adduced no further justification for such a narrow interpretation of the statute than the convenience of semantics allows. There is no doubt that Malawi has committed itself fully to protecting the dignity and equality of women, and above all, to refraining from discriminating against women in its policies and practices.

In 2013, Malawi ratified the Southern African Development Community Gender and Development Protocol, which provides that women shall hold 50 percent of decision-making positions in the private and public sector by 2015.

It cannot be seriously argued that Board appointments in Malawi are not public appointments. If anything, they have been made out by politicians to be and in fact such. Boards are an important public decision-making forum where governance issues concerning major sectors of Malawi’s economy are made. By excluding women from this sector, half of Malawians are excluded from participation ina major area of national economic activity and public decision making.

These board appointments cannot be said to have been based on merit, even on the bogus definition of merit that was offered in July. There was neither open contestation nor interviews or any credible and independent evaluation of candidates. Some Boards, such as that for Accountants,deal with professions that have many members who are women. Others have specific statutory requirements as to eligibility of the appointees that have not been complied with. Many statutes stipulate that Boards appointments must be made by either the President or authorised Minister. Some state that the chairperson must be elected by members of Board themselves.

The list of Board appointments states that it is ‘government’ that has made the appointments and indicates the chairpersons who have been appointed. All these illegalities show that no serious attention was given to the requirements of the law and the Constitution in making the appointments.

If the new government is to be taken seriously about its intention to reduce presidential powers, it must start by obeying the laws as they exist. So far it is flouting so many laws, most importantly gender-related laws and rights, that the proposed effort to amend presidential powers will be seen as an empty public relations exercise.

• Danwood Chirwa; Professor and Dean of Law, University of Cape Town

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