January 30, 2023
by Sam Biden, Research Assistant
In 2011, 1.3m children under the age of 14 were estimated to be involved in child labour regarding tobacco farming, a figure that is likely much higher in 2023. In total, 160m children are estimated to be embroiled in hazardous child labour with serious risks to their physical and mental health, and this includes tobacco production and cultivation. Children participating in tobacco farming are at risk of both nicotine absorption and green tobacco sickness, an illness that emulates nicotine poisoning, causing the affected to suffer from dizziness, headaches and vomiting.
In 2022, tobacco accounted for 55% of all Malawian exports. With such a majority, great pressure is put on Malawian citizens, migrants and trafficked persons to continue what was estimated to be $41m worth of tobacco exports in June 2022 alone. In two Malawian tobacco farming districts, 57% of all children were involved in tobacco farming while 63% of children were involved in some form of child labour. Additionally, Malawian tobacco farms operate on a tenancy system where families live and operate on the farm. These tenants are offered financial incentives based on the quality and quantity of tobacco they can produce for the farm owners, which is then sold to major tobacco manufacturers. This results in many tenants taking out loans to ensure production remains high and of a good standard, leaving many families unable to pay back these debts.
To counter this exploitation, the Malawian government introduced the Tobacco Industry Act in 2019. The act forces tobacco growers to report on their ongoing efforts to eliminate the use of child labour in tobacco farming in line with Malawi’s international obligations, allowing for the termination of operating rights in light of the use of child labour. In particular, this includes upholding the rules from fundamental international Conventions such as those on the Minimum Age, Worst Forms of Child Labour, the Convention on the Rights of the Child and the Palermo Protocol on Trafficking in Persons, all of which outlaw the use of child labour.
Human trafficking in Malawi has direct links to forced labour. Most of the trafficking occurs internally: people are often trafficked from the South to the North to work in agriculture and brick-making. Regarding child labour outside of tenancies, physical and sexual abuse as well as fraudulent recruitment are common practices and enticements. Oftentimes, fraudulent temptation occurs through the promise of employment opportunities, clothing or accommodation – a very attractive idea to people who live on an average of $100-200 a year. Once individuals fall for these acts, they are often the victim of exorbitant fees and coercion to pay off involuntary debts.
The Malawian government produced a report scheduled to be enacted from 2017-2022 that sets out its goals to minimise human trafficking and exploitation within the state. The report goes into great detail about the issue.
1. Victim Profiles
Victims are typically from low-income backgrounds with little education. These victims are prime targets for traffickers as their quality of life is already poor. In particular, those from low-income families enjoy the prospect of employment to better themselves, while those with little education understand the value of the educational opportunity, making them easy to manipulate for trafficking. Trafficked women tend to be unmarried, separated, divorced or abandoned by their male partners and are often trafficked for sexual exploitation. The Malawian Law Commission reported that Malawian women had been trafficked both internally and externally to Mozambique, South Africa, Zambia and Tanzania for sexual exploitation and coercion.
As mentioned prior, many victims are from Southern Malawi that are then trafficked North or to a neighbouring state. Southern Malawi is known for having small land-holding sizes per household which are considered inadequate to support most families. This causes many people to relocate within the South to find work and alternative accommodation, this desire for relocation is a driving force that’s exploited in trafficking cases.
2. Driving Factors
There are primary driving factors that facilitate human trafficking in Malawi, split between ‘push’ and ‘pull’. Push factors relate to any circumstance that pushes people to fall for trafficking plots. The aforementioned lack of education, poor housing, a lack of employment poor familial support and overall poverty are all considered push factors. The International Labour Organisation (ILO) found that poverty, poor familial support as well as low wages accounted for 25%, 18.8% and 15.6% of the main push factors. Employment levels in Malawi have a direct effect on these factors with 21% of Malawi’s labour force being unemployed, driving people further into poverty. Pull factors relate to the need for cheap labour, access to education and better housing as well as a rising demand for prostitution that inevitably leads to exploitation.
3. National Response and Challenges
In 2005, Malawi ratified the Convention Against Transnational Organized Crime (UNTOC) and its subsequent Palermo Protocol. These documents require Malawi to protect and assist victims of TOC-specific victims of human trafficking, through the adoption of legislation and the establishment of relevant institutions and policies. These requirements were then transposed into the Trafficking in Persons Act (2015) (TIPA). The act aims to criminalize the recruitment, transport, transfer, harbouring, receiving or obtaining of any person through malicious intent such as abduction, fraud or abuses of power.
Strong progress has been made regarding victim safety since the enactment of TIPA. A strong effort is being made amongst key stakeholders, particularly the Malawi Police Service (MPS). The MPS has undertaken significant initiatives to cater towards victims of human trafficking, setting up victim support units across the country. Civil society stakeholders have followed suit, creating victim refuge centres for human trafficking victims. The MPS reported a total of 44 trafficking cases in 2020, resulting in the arrest of 54 suspected traffickers, a rise of 6 arrests from the previous reporting period. Of these 44 cases, the majority of trafficked persons were Malawian nationals while 35 of them were confirmed to involve forced labour, such as tobacco farming. Interestingly, the MPS did not report on any human trafficking cases for sexual exploitation during the reporting period. The MPS initiated prosecutions against 39 suspected traffickers from 33 cases, compared to 30 suspected traffickers the prior year.
Despite these developments, there is a comprehensive list of challenges still facing the Malawian government. First, weak coordination between stakeholders regarding the enforcement of TIPA. A committee called the National Coordination Committee Against Trafficking in Persons (NCCATIP) was created yet is not fully functional to date. Additionally, coordination between Malawi, NGOs, government officials and international stakeholders is not being regularly coordinated as planned. Second, there is currently no national policy regarding human trafficking. This has affected other articulated policies relevant to certain districts and their local police forces. Additionally, there is no formal plan to handle resource allocation. Third, enforcement of TIPA is limited by administrative factors such as the delay in getting enforcement and protection officers as well as issues stopping the Anti-Trafficking fund from becoming operational. Fourth, there is still a lack of formal training in the justice system. These issues affect investigators, officers, prosecutors and members of the judiciary. This causes the affected to be unfamiliar with the new justice system, often conflating smuggling with trafficking. Additionally, many justices are issuing fines for trafficking offences as opposed to imprisonment, in flagrant opposition to the provisions of TIPA. Fifth, there is still limited awareness of human trafficking in Malawi, especially regarding stakeholders and media. For example, media reporting sometimes fails to accede to reporting ethics while knowledge of stakeholders and first responders to human trafficking cases amongst the public remains weak. Sixth, the MPS has poor data management systems that have resulted in damaged investigations and poor tracking of prosecutions/convictions. Finally, there is a lack of resources that would allow for the full implementation of TIPA, this includes financial, material and physical resources. This has resulted in trafficking victims being housed with their suspected traffickers in prison cells together while they are processed as the authorities are unable to find separate cells.
Effects on Big Tobacco
As the prime benefiter of human trafficking for agricultural purposes alongside forced labour itself, big tobacco firms have been highlighted as complacent in these issues, despite committing to end forced labour.
Every major tobacco company contributes to the Eliminating Child Labour in Tobacco Foundation (ECLT). The ECLT is an independent foundation that allows all stakeholders to cooperate regarding the elimination of child labour and incorporation of international regulations such as the Worst Forms of Child Labour Convention (WFCL). Stakeholders include tobacco companies, governments, NGOs and international bodies. Since 2020, they have helped 7,451 children and 63,785 adults regarding forced labour, established 4 projects to mitigate forced labour and helped draft 1 action plan in Malawi.
The TNC Norms are a collection of duties and obligations owed to employees of transnational corporations (TNCs). TNCs are required to recognise and respect the norms and responsibilities found in every major human rights document, particularly the Universal Declaration of Human Rights (UDHR). As TNCs, major tobacco firms are liable for human rights claims against them, as has been seen with the ongoing human rights lawsuit against British American Tobacco (BAT) and Imperial Tobacco (IT).
The claimants are Malawian citizens, some of whom aged 3-17, who were all subject to forced labour on tobacco farms in both central and Northern Malawi. As highlighted earlier, people are often internally trafficked. In this case, the claimants were trafficked away from their families in Southern Malawi to the Northern and Central regions. The claimants are raising two combined claims against BAT and IT, focusing on unjust enrichment from “unlawful, exploitive and dangerous conditions” the claimants were forced to work in. Specifically, these conditions include:
‘the widespread use of unlawful child labour, unlawful forced labour and the systematic exposure of vulnerable and impoverished adults and children to extremely hazardous working conditions with minimal protection against industrial accidents, injuries and diseases’
Both defendants have purchased tobacco from the claimants to manufacture cigarettes and are said to be fully aware, either actively or constructively, of the use of forced labour. The defendants have further been accused of facilitating, assisting or encouraging the use of forced labour to ensure they can purchase tobacco at the lowest cost. Finally, the owners of the farms allegedly deprived the claimants of the legal titles they held over the tobacco leaves they grew.
Two primary TNC Norms can be applied in this case. First, the right to security of persons has been violated. This security includes a non-benefit clause against TNCs regarding the use of forced labour and any other applicable human rights norm, specifically regarding the use of human trafficking to facilitate forced labour. Second, the rights of the workers themselves have been violated. One such right is to not use forced labour in any capacity. This includes the facilitating, assisting, encouraging or complacency that the defendants are accused of. This right extends to children in particular, ruling out exploitation and negligent treatment as described by the claimants in their testimonies. A safe and healthy working environment is an additional requirement: workers must not be subject to conditions that may compromise their physical or mental health. Given the nature of tobacco farming, including the use of sharp tools, exposure to toxic chemicals that cause green tobacco sickness and lack of industrial protection, the defendants are equally complacent in knowing these environments were not fit for workers, forced or otherwise. Renumeration is another key workers right, given the fact many are either forced to work with no renumeration and are susceptible to the exploitative tenancy systems that require outside funding, there is no argument to make that these workers were given any remuneration. Even if they were not forced to work, the extortionate tenancy system would make any little remuneration offered moot.
In conclusion, the combination of human trafficking and forced labour in Malawi continues to go hand in hand, often overlooked by corporate entities that remain entirely complacent. National implementations aimed to protect victims of these offences have consistently fallen short of genuine protection, bottlenecked by poor training, knowledge and the inconsistent application of key legislation designed to mitigate such damaging crimes. While Malawi shows strong determination, both politically and legally, to minimize the spread of forced labour and human trafficking in the African state, the failure of their internal network of preventative measures dampen the hopes of the victims of these crimes till such a time where their utility will be fully recognized.