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Medical assessments under the microscope

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Twice it happened, and twice the law enforcement agencies seem to have gotten away with it.

When Steven Monjeza and Tiwonge Chimbalanga were arrested in Blantyre in 2009, on suspicion that they had carnal knowledge of each other against the order of nature, law enforcers took them to a public health facility for medical assessment and there were no reports of them declining to undergo the medical test.

The two were later convicted by the Blantyre Magistrates Court and handed a 14-year jail sentence.

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And the same thing has happened again. Cuthbert Kulemera and Kelvin Gonani were arrested in Lilongwe on Monday, allegedly for having sex against the order of nature. Kanengo Police spokesperson, Esther Mkwanda, confirmed that the two suspects were taken to Kamuzu Central Hospital for medical assessment.

The manner in which gay suspects are treated in Malawi has caught the world’s attention, including that of The African Human Rights Law Journal, which observes in one article that, “On 26 December 2009, Steven Monjeza and Tiwonge Chimbalanga held and … where Chimbalanga was forced to undergo an involuntary medical examination”.

Meanwhile, the Medical Council of Malawi (MCM) has said, while the issue offers some grounds for ethical considerations to the Council, MCM would require ample time before saying whether it could take any action against medical practitioners who help law enforcers conduct “involuntary’ medical assessments, even when the suspects involved may not be willing to undergo it.

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“I need some time and, then, I will be able to come up with a proper response,” was all MCM Registrar, Abel Kawonga, could say.

However, the Malawi Law Society (MLS) has said suspects retain their rights even when nabbed on offences such as having sex against the order of nature.

“Suspects, once arrested are processed by law enforcement agencies in different ways, usually depending on the nature of the offence under inquiry. In some cases, a medical examination may be necessary. In others it might not be,” said MLS honorary secretary, Khumbo Soko, in an interview.

Soko added: “Generally speaking, people do not lose their rights simply because they have been accused of criminal wrongdoing. It is illegal and a violation of the inherent dignity of persons to subject them to medical tests without their full and informed consent. It amounts to trespass to the person and is a tort for which damages are recoverable in the courts.”

Soko cited a decision made by Justice Dorothy Kamanga on this very same point.

“It continues to worry us that our law enforcement agencies still appear not to have internalised human rights standards into all of their operations. It’s a concern we will be sharing with the leadership of these law enforcement agencies in our usual interaction with them,” said Soko.

National policespokesperson, Nicholas Gondwa, said medical assessments are part of litigation and play an important role to both the state and suspects.

“We don’t have to seek permission from the suspects because it [medical assessment] is very important. If suspects refuse, we apply to the courts and we have never had a case where, after a suspect has refused to undergo the medical test and we have applied to the courts, a court of laws turned down our application. Medical tests help law enforcers determine whether the suspect is sick or not,” said Gondwa.

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