Alessandra Sarelin

Low-income countries have by and large adopted antenatal programmes and policies regarding childbirth of high-income countries. The logic behind human rights and development interventions leads to increased regulation and homogenisation of what is considered the socially acceptable, safe and normal way to handle birth. In an effort to decrease maternal and neonatal deaths and to modernise and institutionalise childbirth, the Government of Malawi, in cooperation with donors and the international community, is creating new regulatory regimes regarding where, how and under whose care to give birth. The government has made out-of-facility births with traditional birth attendants (TBAs) illegal by banning TBAs from practising. Customary legal mechanisms have been used to compel women to seek skilled birth attendance (i.e., modern practices) and to penalise TBAs who continue to practice. The traditional birth culture embodied in TBAs is portrayed as conservative, unchanging, primitive and impossible to control and monitor due to the oral tradition it is based upon and the low literacy rate. The ban on TBAs applies as a contribution to social norms on childbirth and normalisation practices of facility-based birth. As theorised by Michel Foucault, biopolitical governance means governing people's conduct within a framework and making use of traditional legal mechanisms. In the present case, a post-colonial state employs these means in order to change people's behaviour in the area of childbirth. The purpose of this article is to analyse the modernisation process of maternity care from a biopolitical perspective, focusing on the normalising and rationalising aspects that seem to underpin the safety arguments behind the TBA ban. The starting point is that the customary law represents a political battle over what it means to be a modern state concerned with the female population; law is a discursive site, as theorised by Ratna Kapur.

When human rights are seen as discursively constructed, it is assumed that human rights are given content and meaning not only by legislators and courts (‘from above’) but also by actors within social movements and community development (‘from below’). The article analyses human rights discourse in Malawi in general and two examples of human rights practice in particular from the perspective of giving meaning to human rights. Who gives meaning to the human rights concept—‘ufulu’ in Chichewa—and who is excluded? The first project to be analysed is called Shire Highlands Sustainable Livelihoods Programme (SHSLP) and is implemented by Oxfam and local partners in the Southern Region. In the SHSLP there was open use of ‘rights language’, especially by so-called radio listening clubs. Actors did not primarily rely on fixed definitions of the human rights concept in general, instead the meanings of ‘human rights’ were shaped in the process of demanding services from local duty bearers, that is, making claims. The second project produced a draft bill, The Food and Nutrition Security Bill. The article analyses the bill from the perspective of giving meaning and content to the right to food. A drafting process that would have included wide consultations could possibly have contributed to a public dialogue about the meaning, source, and authority of the right to food as well as forms and strategies for claiming it. However, this opportunity to discuss the relevance and meaning of the right to food for the lived reality of the people in Malawi was not taken by the organizations behind the bill.

... the importance of a human rights-based approach in which all human rights [End Page 463] are truly interrelated, indivisible and interdependent cannot be ... rights in the Charter as well as the willingness of the African Commission to take this interdependence into account in ...