US embassy cable - 04LILONGWE723

UNCLAS SECTION 01 OF 03 LILONGWE 000723 
 
SIPDIS 
 
SENSITIVE 
DEPT FOR AF/RSA (ZUEHLKE) 
DEPT ALSO FOR G/TIP (YOUSEY) 
 
E.O. 12958: N/A 
TAGS: PREL, PHUM, KWMN, KCRM, MI, UNGA, Human Trafficking, Refugee, Humanitarian 
SUBJECT: GOM TAKES ISSUE WITH MALAWI'S TIP RANKING 
 
REF: A. LILONGWE 710 
 
     B. LILONGWE 714 
 
SUMMARY 
------- 
1. (SBU) Minister of Foreign Affairs George Chaponda told the 
Charge on July 28 that the GOM is "very concerned" about 
Malawi's ranking as a Tier Two - Watch List country in the 
Department's 2004 Trafficking in Persons (TIP) Report. 
Chaponda said the ranking "did not reflect the situation on 
the ground" and was "contestable and debatable."  Further 
explaining the government's position, Chaponda said the 
report's findings were "not substantiated by qualified 
evidence," and he insinuated that the misinformation may have 
been the result of a report by an NGO who "had not done 
thorough research on the matter."  In addition to detailing 
measures the GOM has already taken and will take against TIP, 
Chaponda commented that an inter-minsterial meeting on the 
issue concluded that the GOM will release a press statement 
contesting the Department's ranking, which it did later in 
the day.  Although challenging the accuracy of the report, 
Chaponda repeatedly declared the GOM's commitment to fighting 
TIP and support for USG TIP initiatives at UNGA.  Text of 
press statement begins in paragraph 11.  END SUMMARY. 
 
CHAPONDA READY TO TALK ON TIP 
----------------------------- 
2. (SBU) At a July 28 meeting with the Charge, Minister of 
Foreign Affairs George Chaponda used the USG's initiative on 
TIP at UNGA as an entree to officially respond on behalf of 
the GOM to Malawi's Tier Two - Watch List ranking in the 
Department's 2004 Trafficking in Persons (TIP) report.  Well 
briefed and reading from a prepared statement, Chaponda said 
the GOM "was very concerned" about Malawi's ranking because 
"it did not reflect the situation on the ground."  Chaponda 
described the report as "contestable and debatable" and 
asserted that its findings were not "substantiated by 
qualified evidence."  Chaponda indicated that the report had 
been discussed at an inter-ministerial meeting, where 
representatives from various branches of government found the 
ranking "shocking."  (NOTE: The Charge later learned that the 
President, having read the 2004 TIP report, ordered the 
inter-ministerial meeting to convene. END NOTE.) 
 
THE GOM'S SPECIFIC COMPLAINTS 
----------------------------- 
3. (SBU) Pointing out specific areas of concern, Chaponda 
questioned the Department's interpretation of "TIP" and of 
"prostitution," suggesting that the two were separate issues 
and that the report's characterization of them were "an 
exaggeration of reality."  Chaponda argued that the GOM had 
been "uncompromising" in its dealing with the "few reported 
cases" of TIP.  Without citing specific examples, Chaponda 
said that the few cases that had been reported were 
investigated and taken to court, resulting in a number of 
convictions.  Chaponda also said there had been a number of 
"unconfirmed and unsubstantiated claims" that lacked enough 
evidence for the police to follow up on.  As evidence of the 
police's work, Chaponda said that several cases had even been 
referred to Interpol.  Rounding out his argument about the 
GOM's effective treatment of TIP, Chaponda asserted that the 
Police and other government experts had not been adequately 
consulted during the compilation of the report.  (NOTE: 
Con/poloff later confirmed to Charge that the police, indeed, 
had been consulted.  END NOTE.) 
 
MALAWI'S LAWS AS RELATED TO TIP 
------------------------------- 
4. (SBU) Turning to Malawi's legal framework as related to 
TIP, Chaponda said the Penal Code has several provisions 
prohibiting "offenses against morality, such as prostitution 
and the movement of people."  To make the legislation more 
forceful, he said Parliament will pass in the coming sessions 
legislation that specifically criminalizes TIP.  Chaponda 
said the bill had been presented last year and that 
parliamentarians wanted "more time to study the issue" before 
acting on the legislation.  He assured the Charge, that "as a 
parliamentarian," he "will make sure the legislation goes 
through." 
 
5. (SBU) Reinforcing his assertion that the GOM was serious 
about TIP, Chaponda specifically cited Malawi's accession to 
the "Convention for the Suppression of the TIP and of the 
Exploitation of Prostitution of Others" (New York, 1950) and 
the "Final Protocol to the Convention for the Suppression of 
the TIP and of the Exploitation of the Prostitution of 
Others" (New York, 1950).  Chaponda also said the GOM has 
finished consultations and intends to sign and ratify the 
"Protocol to Prevent, Suppress, and Punish TIP Especially 
Women and Child, Supplementing the United Nations Convention 
Against Transnational Organized Crimes" (2000), AKA "The 
Palermo Protocol." 
 
MISINFORMATION AND A REGIONAL PERSPECTIVE 
----------------------------------------- 
6. (SBU) Offering a possible source of misinformation, 
Chaponda said the report recently released by International 
Organization on Migration (IOM) was not based on "a thorough 
research of TIP" in Malawi.  He questioned the veracity of 
information that a non-resident organization could produce 
and also noted how dated the report's example cases were. 
 
7. (SBU) Turning to a regional perspective, Chaponda said he, 
as a lawyer, had examined the laws in other SADC nations and 
found Malawi's TIP laws to be comparable to those of other 
countries.  He specifically noted Botswana's TIP laws were 
very similar to those of Malawi. 
 
FURTHER INVESTIGATION NECESSARY AND THE GOM'S RESPONSE 
--------------------------------------------- --------- 
8. (SBU) Before moving to Malawi's position at UNGA, Chaponda 
"begged" for wider consultation to be done on TIP in Malawi 
and indicated that the GOM had decided to issue a press 
statement to refute the Department's claims in the 2004 TIP 
Report. 
 
SUPPORT AT UNGA 
--------------- 
9. (SBU) Chaponda concluded by saying that Malawi, as a 
nation "committed to fighting TIP," will support the USG's 
TIP initiatives at UNGA, even though the GOM challenges the 
findings of the Department's report (reftel B). 
 
COMMENT 
------- 
10. (SBU) Chaponda rightly notes that much of what is known 
about TIP in Malawi is based on rumors and hearsay.  In 
addition, the GOM's press statement accurately details the 
government's previous efforts to prevent TIP, prosecute 
perpetrators, and protect victims.  Considering the lack of 
specific evidence on the issue and the GOM's budgetary focus 
on pro-poor expenditures, it is unlikely that the GOM will 
have any additional resources to spend on TIP.  Without 
concrete evidence and resources forthcoming, it will become 
more difficult to continuing justifying the Department's 
stance on TIP in Malawi.  That said, we are encouraged by the 
GOM's renewed interested to improve TIP legislation and to 
ratify the Palermo Protocol.  END COMMENT. 
 
11. (U) The press statement issued by the GOM is as follows: 
 
PRESS STATEMENT ON HUMAN TRAFFICKING AND PROSTITUTION 
 
The Government of the Republic of Malawi has noted with 
concern the report issued by the United States Department of 
State giving the impression that the human trafficking 
situation in Malawi, particularly of women and children, and 
organized prostitution, has escalated to the extent of 
warranting Malawi to be listed as a Tier 2 Watch List country. 
 
The Government of Malawi finds the report debatable, 
particularly considering that it is not substantiated by a 
list of identifiable interviewees, credible sources or 
confirmed incidences and reliable statistics.  The facts on 
the ground show that the Government of the Republic of Malawi 
has been uncompromising in dealing with the only few reported 
and known cases of trafficking in human beings and organized 
prostitution, thereby drawing the wrath of human rights 
activists and women and children rights groups. 
 
Indeed, the few reported and confirmed cases have been 
vigorously pursued in the courts and in a number of instances 
perpetrators have been convicted.  It is, therefore, 
disturbing when other agencies claim that Malawi has no laws 
making human trafficking and organized prostitution criminal 
offenses.  If a number of perpetrators have been arrested and 
convicted for trafficking women and children, one wonders 
what laws they may have violated for argument sake. 
 
There have been many claims, most of which unconfirmed or 
unsubstantiated, making it almost impossible for the Malawi 
Police to arrest or prosecute anybody.  No doubt, quite a 
number of agencies both within and outside the Government 
could not provide credible information to the Police or the 
Ministry responsible for women and children affairs, to 
support the claims in the report.  The Malawi Police Force on 
its own initiative has contacted a number of international 
enforcement agencies, such as, Interpol and SARPCO, who also 
could not confirm the findings in the report.  There may have 
been some isolated incidences but certainly not to the extent 
of the picture painted by the report. 
 
The people who compiled this report seem not to have 
consulted any experts on this subject or the people who could 
have availed them with accurate information.  Our observation 
is that they may have misdirected themselves on the law 
governing trafficking and prostitution.  We also question 
their interpretation of the technical terms "trafficking in 
human beings" and "prostitution."  If the report is talking 
about prostitution and trafficking in international law and 
under common law jurisdictions, then the findings of the 
report are an exaggeration of the realities on the ground. 
 
The Government of the Republic of Malawi wishes to reiterate 
its commitment to fight and stamp out trafficking in humans, 
particularly in women and children and will spare no effort 
in this endeavor.  Indeed, Malawi has already signed and 
ratified a number of critical conventions and protocols aimed 
at addressing this human trafficking and prostitution 
including: the Convention for the Suppression of the Traffic 
in Persons and of the Exploitation of the Prostitution of 
Others, adopted in New York in March 1950 and the Final 
Protocol to the Convention for the Suppression of the Traffic 
in Persons and of the Exploitation of the Prostitution of 
Others also adopted in New York in the same year.  It has 
also concluded consultations on the "Protocol to Prevent, 
Suppress, and Punish Trafficking in Persons Especially Women 
and Children, supplementing the Untied Nations Convention 
Against Organized Transnational Organized Crimes, 2000" with 
the aim of signing and ratifying. 
 
It is curious to note that despite having legal provisions in 
our laws i.e., the Constitution and the Penal Code which has 
an exclusive chapter entitled "Offenses Against Morality" 
dealing with "prostitution,  living on earnings of 
prostitution, taking people away either within or outside 
Malawi for prostitution, taking people away to be in brothels 
whether willingly or against their consent" among other 
offenses provided for, the report in question paints a very 
bad picture of Malawi. 
 
Further, the Government, on its own initiative, after 
carrying out consultations on the possible legal 
complications and technical problems of prosecuting certain 
permutations of offenses related to human trafficking 
especially among women and children and taking into 
contemplation obligations assumed by being parties to 
treaties, and in solidarity with global efforts to curb the 
problem in this area, prepared and submitted to Parliament, 
the Penal Code (Amendment) Bill No: 12.  The Bill has never 
been withdrawn but that Members of Parliament asked for more 
time to study and appreciate certain concepts about 
trafficking and prostitution, most of which, novel and 
inconsistent with traditional notions of prostitution and 
cultural values as understood.  It is, therefore, a 
misrepresentation to suggest that the Bill was withdrawn or 
that our Penal Code is so inadequate to an extent that 
traffickers in human beings would easily slip through the 
long arm of the law, warranting the conclusion in the report 
that Malawi has no laws to curb offenses of trafficking and 
prostitution.  Our contention is that the low levels of 
arrests and prosecutions only vindicate the realities of the 
problem as it exists on the ground and as confirmed by our 
own experts. 
 
The Government of Malawi is willing and ready to work with 
any agency which has credible information that could help, if 
any, in cracking down on any known or identifiable gangs or 
groups or persons in trafficking or prostitution.  Further it 
also welcomes experts, if any, who have information on the 
purported inadequacies of its laws other than the way our 
Penal Code (Amendment) Bill No: 12 proposes to seal perceived 
technicalities and nuances. 
 
The Government of the Republic of Malawi vehemently and 
categorically rejects the findings in the report painting a 
picture that human trafficking and organized prostitution 
have escalated and that it has no legal mechanism to address 
the few and isolated confirmed cases. 
 
MINISTRY OF FOREIGN AFFAIRS 
LILONGWE 3 
 
29th JULY, 2004 
 
End text. 
RASPOLIC