The defiler and rapist has, deservedly so, become the scam of society. However, as FESTON MALEKEZO writes, the gravity of the offences is sometimes being watered down by light sentences which the courts are meting out on convicts.
Defilement and rape cases have put Malawi in the centre of local and global human rights advocates’ storm. Save for attacks on persons with albinism, we cannot call to mind other issues that have attracted as much condemnation.
However, while the Judiciary has been doing its best to put defilers and rapists in check, sometimes convicts are sometimes getting a slap at the back and, as High Court Judge Redson Kapindu is on record to have said, sentences that are “manifestly inadequate”.
Between June and July 2020, for example, the Lilongwe Senior Resident Magistrate Court heard that Sinola Gwedeza defiled five girls whose ages ranged from nine to 11 years.
The court further learnt that the convict was inviting the girls to do household chores for him whenever his wife was not around.
While others were doing chores such as sweeping, Gwedeza could invite the girls to his bedroom and defile them one after another. To cover up for his crimes, he would give each one of them K50 and threaten them to keep their mouths shut.
This is according to submissions made by State Prosecutor Sub Inspector Humphrey Makhaliha of Kawale Police Station.
Of course, Gwedeza pleaded not guilty to the charge of defilement, which falls under Section 138 of the Penal Code.
However, medical documents and in-camera testimony of the girls put him in a tight spot, so that, when it became clear to him that he would not get away with his sins, he asked the court for leniency.
“I am a first-time offender and breadwinner. As such, many people will suffer if I were to be given a stiff sentence,” Gwedeza pleaded with the court.
His pleadings were drowned out by Makhalira’s plea that Gwedeza be sent to prison for a “long, long time” to deter others from doing the same to “innocent children”.
Senior Resident Magistrate Shyreen Yona Chirwa concurred with the State’s submission and sentenced Gwedeza— who comes from Puteni Village in the area of Traditional Authority Thomas in Thyolo District— to 21 years imprisonment with hard labour.
This judgement comes against the background that, in cases heard in the past two years, some convicts have been slapped with jail-sentences as long as 40 years.
Of note is a case, in January this year, where High Court Judge Redson Kapindu sent two men to prison to serve 40 and 30-year prison sentences, respectively, after the State proved, beyond reasonable doubt, that they had defiled girls.
The two, 43-year-old Malawi national Fabiano Maliko and Pakistan national Zeeshan Jaral Raja, had appealed to the High Court their respective earlier sentences meted out by magistrates courts, which Kapindu set aside for being “manifestly inadequate”.
Maliko was initially sentenced to 14 years imprisonment with hard labour at a magistrates’ court after pleading guilty to the charge of defiling a 10-year-old girl who used to call him “uncle” because he was her father’s friend.
Raja, on the other hand, was initially sentenced to 16 years imprisonment with hard labour in February 2017 for defilement. He also got a sentence of nine years for child trafficking, with the Zomba Chief Resident Magistrate Court finding him in the wrong after a full trial.
Women Legal Resource Centre Executive Director Maggie Kathewera Banda says it is high time the Judiciary started providing periodic guidance on how to handle such cases.
“For me, the Judiciary has to periodically issue out new guidelines on how to handle these cases so that the discrepancies are narrowed. Sometimes, the differences are there because information flow within the Judiciary is also a problem. You will find out that the High Court would set a precedence on a particular case but, for it to trickle down to subordinate courts, it becomes a problem,” she says.
Banda agrees with Oxfam and Youth and Society (Yas), who wrote Chief Justice Andrew Nyirenda earlier this year, asking him to consider formulating sentencing guidelines in sex-related crimes amid an alarming rise of such cases in the country.
In a letter dated March 12 2021, the two organisations also noted that there are huge discrepancies in sentencing such as sexual offences.
“Despite the High Court raising the bar in sentences imposed in such cases, some subordinate courts impose lenient sentences that do not reflect the gravity of the offences as envisaged in the Penal Code,” reads the letter which Oxfam Country Director Lingalireni Mihowa and Yas Executive Director Charles Kajoloweka signed.
Oxfam and Yas cited a judgement by Justice Kapindu in the case of Maliko Fabiano v The Republic, where the court gave a proper guidance in terms of the impact of sexual violence on children.
The court, in that case, enhanced a sentence of 14 years to 30 years when a 43 year-old man defiled a girl of 10 years.
“The benchmark set by Justice Kapindu calls for proper sentencing guidelines in sexual offences. This shall ensure that the lower courts are properly guided when exercising their discretion in such cases.
“In view of the above, we would like to appeal to you that you exercise your powers in terms of sections 59 and 67 of the Courts Act and formulate sentencing guidelines for subordinate courts in sexual offences. The guidelines shall not only help in creating certainty in sexual offences but will also act as a deterrent to would-be offenders,” the letter adds.
Registrar of the High Court and Supreme Court of Appeal Gladys Gondwe acknowledges that having sentencing guidelines would ensure consistency of sentences.
“And, yes, we are agreeing that having sentencing guidelines for sexual violence cases would help to ensure courts impose the most appropriate sentences with consistency. That should ultimately result in deterrence. We would certainly welcome the opportunity of support for development of such,” she says.
In April this year, the Malawi Human Rights Commission called upon the Judiciary to ensure the pronouncement of stiffer punishments for all sexual offences as a strategic intervention within the hierarchy of the judicial system in a bid to also deter would-be offenders from committing heinous crimes.
Currently, the Ministry of Justice is also working on amending the Penal Code, pending Parliament’s approval, particularly on penalties imposed on convicts of rape and defilement.
Justice and Constitutional Affairs Minister Titus Mvalo is on record to have said they were working on amending the Penal Code to that effect.
Mvalo further indicated that they would also want to amend the Criminal Procedure and Evidence Code to provide speedy conclusions of cases of sexual violence.
Among other things, the ministry holds that, once a person is convicted, that must also be a sentence.
The development comes at a time Gender Minister has vowed to fix the law and strengthen policies so that defilers and rapistscan have nowhere to run to.
“We have to join hands to bring cases of defilement and rape to an end. Girls and women are not objects; as such, they have to be respected. Those convicted of rape and defilement should be dealt with accordingly to send the right message to perpetrators of violence against women,” Kaliati says.
In 2020, the country experienced a sharp increase in gender-based violence cases, with the Malawi Police Service receiving 1,440 defilement cases between January and October 2019, and 1,738 defilement cases between January and October 2020.
According to National Police headquarters’ records, cases of rape in the country have more than doubled since 2018 as, in 2020 between January and November, 423 cases were recorded.
In the first quarter of 2021, police records indicate that cases of defilement went up by 15 percent, with 646 cases recorded this year against 552 cases recorded in 2020.