GOM TAKES ISSUE WITH MALAWI'S TIP RANKING

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
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