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Malawi: off the pace with Africa’s rape sentencing practices

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Just past 7p.m., the sun had set in Mtandire, a peri-urban location on Lilongwe City’s western tip. A 13-year-old girl – untainted only for a few moments more – made her way from her sister’s home to her own. The incident happened steps away from a place she felt safe.

If she had the time, she would have screamed. Rather, the man who took from her what was not his wrapped her mouth with a rag and rammed her to the ground. Given the lack of electricity, she could not see what was going on.

The social worker who arranged for the family to meet with Daily Times hung her head as the young girl relived her rape, this time in front of a camera. Now permanently marinating in her mind, she is left with the memory of a crime punishable by death under the Penal Code.

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In addition to the memory, she lives with another reminder – that of her unborn child. Not yet a grown woman herself, she stroked the life within her as her mother spoke.

“She was still going to school but I noticed something different,” her mother said. “After questioning her, she told me she was raped and was told not to tell anyone.”

Her life depended on her silence and she kept it for the months. Tt took her family to discover her pregnancy.

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Unfortunate as it is, Malawians have become accustomed to similar stories. Women and girls in this southern African country continue to face gender-based violence (GBV) in multiple forms, and rape is no less prominent.

When a girl is raped, she is left to pick up the pieces of her pulverised purity. From then on, her life is forever changed, her childhood compromised and her future permanently jeopardised. Many are impregnated or left with HIV – some with both.

According to a 2015 literature review published to inform a national response to GBV in Malawi, injustices continue to permeate despite over 70 studies conducted with resulting recommendations.

The review references a specific study conducted in 2014 by the National Statistical Office, which revealed that 40 percent of females reported instances of rape and attempted rape.

Without proper justice, these women and girls are left living in fear. And like so many other instances, justice has yet to be served in the case of the Mtandire girl.

According to her father, after learning of the encounter, the family reported the matter to the police who arrested the suspect. They were told to wait for the day of judgement.

“At one time, the relatives of the man told me they were going to use money to silence the case,” the girl’s father said. “I keep wondering if perhaps the police or, indeed the courts, accepted money to silence the case. It really offends me because I cannot afford a lawyer….”

While the family could not afford a lawyer in the first place, the case allegedly happened without their knowledge.

“I was not notified of anything regarding the hearing and I’m very surprised,” said the father.

Lilongwe Police spokesperson Kingsley Dandaula acknowledged the father’s complaint but told Times the case was taken to court and that the suspect was found guilty and subsequently discharged using Section 337(1a) of the Criminal Procedure and Evidence Code.

The section refers to instances where the court finds the charge to be accurate but orders it dismissed in regard to the age, character and etc of the accused.

MHANGO – I doubt the magistrate was told the truth about the age

But there are those who are not amused by such flow of the rape case. Centre for Youth and Children Affairs Executive Director Desmond Mhango describes the decision as unjust.

He doubts the case even went to court in the first place.

“If it went to court, I doubt … that the magistrate was told the truth about the age [of the accused],” he says.

Though the man is known to be 21, Mhango fears the case was closed with the understanding that the accused was below 18. As such, he walked out without penalty.

In a summary of current sentences for sexual assault offences in Malawi, the maximum sentence is death or life imprisonment for rape or defilement and 14 years for attempted defilement.

In the recent case of a six-year-old girl who was raped by a church elder in Area 25, the man who allegedly defiled her, Evance Kambakuwa, was sentenced to half the maximum imprisonment.

According to a rape sentencing study conducted in east, central and southern African countries in 2012, despite a trend towards reform elsewhere, Malawi is one of two areas that does not appear to have substantially amended its laws on sexual offences.

Rather, it adheres to much of the original common law provisions from Penal Codes dating back to the colonial period.

This southern African country is the only one in the study that has seen zero sentencing reform in Africa.

This most recent incident in Lilongwe is more than a similar story of a young girl who was raped and impregnated. Her trauma represents a constant lack of justice for survivors of GBV.

While the gaps in case law and legislation are obvious, there are government policy documents that address GBV, including international agreements and plans.

The National Gender Policy (2014), for example, notes the increasing number of GBV cases in its main problem statement.

One of the seven policy objectives is to reduce GBV.

The policy says “laws… shall be formulated and enforced to eliminate gender-based violence,” with improved response and access to socio-economic services as well as knowledge, attitudes and practices.

Regardless of policy statements, considering current and past sexual assault cases, actual enforcement appears minimal.

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