Malawi: Submission the Committee on the Elimination of Discrimination against Women

We write in advance of the 86th session of the Committee on the Elimination of Discrimination against Women (the “Committee”) and its review of Malawi under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This submission focuses on teenage pregnancy and child marriage, government-endorsed online learning during the Covid-19 pandemic, and the right to free and compulsory education.

Teenage Pregnancy and Child Marriage (articles 2, 3, 5, 10, 12, and 16)

The adolescent birth rate in Malawi is 136 per 1,000 girls and women ages 15-19.[1] This is higher than the regional rate in East and Southern Africa of 94 per 1,000 and more than three times the world rate of 41 per 1,000.[2] Government data from 2019-2020 indicates that 43 percent of women ages 20-49 got married before the age of 18, and 11 percent did so before the age of 15.[3] Pregnancy is both a barrier to girls continuing their education and often a consequence of girls dropping out of school. Numerous studies have shown that the longer a girl stays in school, the less likely she is to be married as a child or become pregnant during her teenage years.[4]

In 2017, Malawi removed from its constitution a provision allowing children between the ages of 15 and 18 to marry with parental consent, thereby aligning the minimum age of marriage with the Marriage, Divorce and Family Relations Act,[5] a 2015 law that sets 18 as the minimum age of marriage.[6]

Malawi has adopted a school readmission policy (introduced in 1993 and revised in 2016) to ensure that pregnant girls can resume their education after giving birth. It provides that girls are not allowed to remain in school while pregnant but are expected to return to school one year after giving birth. Students, their parents or guardians, and the school’s head teacher are expected to fill in a standard school “dropout and readmission” form detailing both processes. This provision replaced a previous and more complex requirement for students to submit letters to education officials. Malawi also provides students readmitted after pregnancy with counseling and psychosocial as well as remedial academic support.[7]

Malawi’s Multiple Indicator Cluster Survey of 2019-2020 indicates that 15 percent of girls and women ages 15-49 who are currently married or in union, and almost 50 percent of girls and women ages 15-49 who are sexually active and currently unmarried or not in union, have an unmet need for family planning.[8]

Abortion in Malawi is illegal and punishable by up to 14 years in prison,[9] except to preserve the pregnant person’s life.[10] In 2021, Malawi’s parliament withdrew from debate the Termination of Pregnancy Bill, which would have eased restrictions on access to abortion in the country.[11]

Human Rights Watch encourages the Committee to ask the government of Malawi:

• What steps is the government taking to ensure pregnant girls and adolescent mothers who are at risk of dropping out are socially and financially supported to stay in school?
• What special accommodations are provided for young mothers at school, such as time for breast-feeding, flexibility when babies are ill, or flexibility in class schedules?
• What programs are in place to ensure access to nurseries or early childhood centers close to schools?

Human Rights Watch encourages the Committee to call on the government of Malawi to:

• Continue to combat child marriage through national strategies, with input from women’s and children’s rights groups, health professionals, and other service providers; and coordinate efforts among all relevant government ministries.
• Address social, financial, and systemic barriers that inhibit girls who have become mothers from continuing their education.
• Adopt a continuation policy that allows students who are pregnant, mothers, and/or married to continue their education while pregnant and after giving birth.
• Ensure that women and girls have access to modern forms of contraceptives and information on sexual and reproductive health rights, including through comprehensive sexuality education at school and in the community.
• Decriminalize abortion in all circumstances as a matter of urgency.

Government-Endorsed Online Learning during the Covid-19 Pandemic (article 10)

The UN High Commissioner for Human Rights, in her 2022 report on the impact of the Covid-19 pandemic on the realization of the equal enjoyment of the right to education by every girl, stressed the need to protect the rights of the child in relation to the digital environment, including protection from online violence and exploitation, and respect for their right to privacy.[12] The UN Human Rights Council and the General Assembly have called upon states “to further develop or maintain, in this regard, preventive measures and remedies for violations and abuses regarding the right to privacy in the digital age that may affect all individuals, including where there are particular adverse effects on women, as well as children and persons in vulnerable situations or marginalized groups.”[13]

Human Rights Watch analyzed Notesmaster, an education technology (EdTech) website that was used by Malawi’s Education Ministry as its primary means of delivering online education to secondary school students during the pandemic.[14] The website was developed in partnership with Notesmaster, its parent company of the same name. As most Malawian children were not likely to have access to affordable, reliable internet,[15] access to the website was provided to students at no cost through a partnership with Telekom Networks Malawi, a major telecommunications provider in the country.[16]

Human Rights Watch found that Notesmaster surveilled children not only within its online learning platform, but also tracking them across the internet, outside of school hours, and deep into their private lives.[17] Human Rights Watch observed 14 ad trackers and 15 third-party cookies sending children’s data to a combined 16 advertising technology (AdTech) companies. In most instances, Notesmaster transmitted this data to domains owned by these companies that are intended to receive and process incoming data for commercial or advertising purposes.

Among these, Human Rights Watch detected Notesmaster transmitting children’s data to Oracle’s BlueKai Data Management Platform, a data broker that has amassed one of the world’s largest troves of data on people online.[18] In June 2020, TechCrunch reported that BlueKai had left one of its servers unprotected, spilling data on billions of records on people—names, home addresses, other personally identifiable data—out onto the open web for anyone to find, resulting in one of the most significant data security incidents of 2020.[19] Human Rights Watch detected Notesmaster sending children’s data to Oracle’s BlueKai, both before and after the reported data breach.[20]

In addition, Human Rights Watch observed Notesmaster collecting and sending children’s data to Meta (formerly Facebook) through Facebook Pixel, an AdTech tool that could not only be used by Notesmaster to later target its child users with ads on Facebook and Instagram, but also allowed Meta to retain and use this data for its own advertising purposes. Notesmaster sent children’s data to Google’s advertising platform, and through its use of Google Analytics’ “remarketing audiences,” an AdTech tool that allowed Notesmaster to target its users with ads across the internet.[21]

In doing so, Notesmaster permitted these companies the opportunity to stitch together and analyze the data they received to guess at a girl’s personal characteristics and interests (“profiling”), and to predict what a girl might do next and how they might be influenced. Access to these insights could then be sold to anyone—advertisers, data brokers, and others—who sought to target a defined group of people with similar characteristics online.

Profiling and targeting girls on the basis of their actual or inferred characteristics not only infringes on their privacy, but also risks abusing or violating their other rights, particularly when this information is used to anticipate and guide them toward outcomes that are harmful or not in their best interest. The Committee on the Rights of the Child has warned that such processing and use of children’s data “may result in violations or abuses of children’s rights,”[22] and has called on states to “prohibit by law the profiling or targeting of children of any age for commercial purposes on the basis of a digital record of their actual or inferred characteristics, including group or collective data, targeting by association or affinity profiling.”[23]

Notesmaster also deployed “key logging,” a particularly invasive procedure that surreptitiously captures personal information that people enter on forms before they hit submit, much less consent. Human Rights Watch detected Notesmaster using key logging to send child users’ names, usernames, passwords, and other information to YouTube.

Children were compelled to give up their privacy for their learning. Human Rights Watch finds that these tracking techniques, designed for advertising and commercial purposes, are neither proportionate nor necessary for Notesmaster to function or to deliver educational content. Their use on children in an educational setting arbitrarily interferes with children’s right to privacy.

Children who relied on Notesmaster as their primary source of education during school closures could not reasonably object to such surveillance without opting out of compulsory education and giving up on formal learning during the pandemic. Notesmaster did not allow children to decline to be tracked. As these tracking technologies were invisible to the user, children had no reasonably practical way of knowing the existence and extent of these data practices, much less the impacts on their rights.

Human Rights Watch did not find evidence that Malawi’s Education Ministry took measures to prevent or mitigate children’s rights abuses through Notesmaster’s data practices, or that the Education Ministry checked whether Notesmaster was safe for girls, or children in general, to use. As a result, girls and children in general, whose families were able to afford access to the internet and connected devices, or who made hard sacrifices to do so, were exposed to the risks of misuse or exploitation of their data.

The Education Ministry did not respond to Human Rights Watch’s request for comment. Notesmaster denied that it shares children’s data with third-party advertising companies and stated that it does not display advertising on its site.[24] In its response, Oracle confirmed the data leak, and said that an investigation it conducted in 2020 did not uncover evidence that data relating to children were involved. Oracle stated that any receipt of data related to children would be a violation of Oracle’s agreements and policy, and did not address whether it had nonetheless received child users’ data from six EdTech websites, including Notesmaster. The company did not address whether data received from Notesmaster were exposed as part of the 2020 security breach, and whether it had informed Notesmaster or the other EdTech websites about the security breach.[25]

Meta did not address whether it was receiving children’s user data from Notesmaster and said that it was their customers’ responsibility to comply with their policies and applicable laws that prohibit the collection of children’s data.[26]

Human Rights Watch recommends that the Committee ask the government of Malawi:

• Does the government have plans to amend its proposed draft data protection law to incorporate comprehensive protections for girls and all children?
• What recourse or remedy does the government provide, or is planning to provide, to children who have experienced infringements of their rights as a result of their use of Notesmaster and whose data remain at risk of misuse and exploitation?

Human Rights Watch recommends that the Committee call on the government of Malawi to:

• Amend and adopt its proposed draft data protection law to incorporate comprehensive protections for all children, including girls. Such protections should require that any processing of children’s data meet strict requirements of necessity and proportionality, regardless of consent.
• Provide remedies for children whose data were collected through their use of Notesmaster. To do so, the Education Ministry should:
  • Require Notesmaster to immediately remove all ad tracking technologies from its website, and delete any children’s data collected during the pandemic.
  • Immediately notify and guide affected schools, teachers, parents, and children to prevent further collection and misuse of children’s data.
  • Require AdTech companies to identify and immediately delete any children’s data they received from Notesmaster during the pandemic.
• Ensure that any services that are endorsed or procured to deliver online education are safe for girls and all children. In coordination with data protection authorities and other relevant institutions, the Education Ministry should:
  • Require all actors providing digital educational services to children to identify, prevent, and mitigate negative impacts on children’s rights, including across their business relationships and global operations.
  • Require child data protection impact assessments of any educational technology provider seeking public investment, procurement, or endorsement.
  • Ensure that public and private educational institutions enter into written contracts with EdTech providers that include protections for children’s data.
  • Define and provide special protections for categories of sensitive personal data that should never be collected from children in educational settings.

Right to Free and Compulsory Education (article 10)

Failing to guarantee free pre-primary and secondary education disproportionately harms girls and women. In a world where too many parents with limited resources face social pressure to prioritize their boys over their girls, school fees can in particular play a factor in keeping girls from school. Excluding children from preschool also hinders parents—overwhelmingly mothers—from engaging in paid employment should they need or choose to do so, or otherwise participating in public life. In its General Recommendation No. 36 (2017) on the right of girls and women to education, this Committee stated that education “should be free and compulsory from preschool through secondary school.”[27]

The Constitution of Malawi and the Education Act state that primary education shall be free and compulsory.[28] Primary education begins at age 6 and lasts eight years.[29] According to the 2020-2030 investment plan for Malawi’s education sector, one of the government’s objectives is “increasing access to secondary education and transition from primary to secondary with a long-term view of having free and compulsory secondary education.”[30] Malawi Vision 2063 (MW2063) further calls for making at least 12 years of formal education compulsory, and prioritizing early childhood education for all.[31]

According to the United Nations Children’s Fund (UNICEF), tuition fees and transport and accommodation costs have created significant barriers in accessing secondary education in Malawi.[32] Government data indicates that net enrollment at the secondary level was just 17 percent in 2021/22, whereas the completion rate was 19 percent (21 for boys and 17 for girls).[33] Lack of sufficient or adequate school infrastructure, amenities, and other facilities, such as sanitation and changing rooms, reportedly create barriers for girls at the secondary level.[34]

Girls constituted 61 percent of dropouts from secondary education in 2021/2022. Nearly 16 percent of them reportedly did so due to pregnancy.[35]

At the primary level, while net enrollment stood at 88 percent in 2021/22, retention remained a challenge, with primary completion rate standing at just 56 percent, according to government figures.[36] Moreover, only 40 percent of children who first registered in primary schools in Malawi had gotten a pre-primary (Early Childhood Development) education.[37]

Human Rights Watch recommends that the Committee ask the government of Malawi:

• What steps is the government taking to increase enrollment and completion rates for girls within compulsory primary education?
• What steps is the government taking to reduce and eventually eliminate school fees at the secondary level?
• What barriers does the government see to expanding the right to free and compulsory education to include at least one year of pre-primary education?
• What is the timeline to legislate 12 years of free primary and secondary education?

Human Rights Watch encourages the Committee to call on the government of Malawi to:

• Legislate that at least one year of pre-primary education be free and compulsory, and that all secondary education be free, for all children.
• Develop and implement mechanisms to follow up on and keep track of girls who drop out of school, including due to pregnancy or marriage, with the aim of initiating their return to school.