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Sexual offences, trial dilemmas

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WE WANT TO GENERATE DEBATE—Phiri

Efforts by the government and its partners seem to be failing to end cases of sexual and gender-based violence (SGBV) in Dowa and Ntchisi districts.

For instance, from January 1 to April 30 2021, Ntchisi registered 15 cases bordering on rape, sexual assault and indecent assault, with the area of Traditional Authority (T/A) Chikho leading on the graph of shame.

Out of these, only four were convicted while the rest were acquitted, a development Ntchisi Second Grade Magistrate Fredrick Malobvu blamed on ambiguities and inconsistencies in the law.

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Malobvu said while the police have been arresting men for having sex with girls aged 16 and less than 18, the courts have, on the other hand been discharging them because of inconsistencies between the Constitution of Malawi and the Penal Code.

Malobvu made the sentiments during a stakeholder engagement which the Catholic Commission for Justice and Peace (CCJP), in partnership with the Child Rights Advocacy and Paralegal Aid Centre (Crapac), organised in Ntchisi recently.

The meeting was organised under a project ‘Raising the Voice of Women in the Fight against Violence against Women and Girls’, which UN Women is funding through the Spotlight Initiative.

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Malobvu disclosed that while the Family Relations, Divorce and Marriage Act has raised the legally prescribed age of marriage to 18 other pieces of legislation allow girls aged 16 and less than 18 to engage in sexual intercourse.

“The wording of Section 160 of the Constitution of Malawi and 132 of the Penal Code are the source of this confusion.

“These two legal provisions do not to speak to each other on sexual offences and this is why when the police charge a man who has had sex with a 16-year-old girl, the courts will acquit the suspect unless the girl didn’t consent,” he explained.

Malawi does not have an explicit Age of Consent law. However, Section 138 (1) of the Penal Code establishes the offence of defilement (cut off point: 16 years).

Case law has established that it is not necessary to ask whether the girl consented or not in defilement cases to determine the guilt of an accused person.

Whether the girl consented to the sexual assault is irrelevant. The accused person would still be guilty.

Malawi’s legislation defines two circumstances in which sexual intercourse will be said to be “without consent”.

The first instance is where the woman did not agree to the sexual intercourse but the man forced himself on her.

The second instance is where the woman agrees to the sexual intercourse but that agreement is obtained by force, intimidation, threats, fear of bodily harm or was misrepresented as to the nature of the act, or in the case of a married woman, by personating her husband.

Several global bodies, including Unicef and the World Health Organisation, are undertaking a number of initiatives to change the global guidelines with regard to adolescent access to a range of HIV prevention services, including age of consent and informed consent, confidentiality, availability, accessibility and acceptability.

Malobvu says unless the law is reviewed, the police and courts will continue struggling to secure convictions for men charged with defilement for having sexual intercourse with teens between 16 and 18 years.

Police prosecutor Virginia Kachepa said acquittals are a huge setback to the fight against violence perpetrated against women and girls as much as it is a source of frustration to prosecutors.

“As prosecutors, our wish is to secure convictions in all SGBV cases to send a strong signal to would-be offenders that time for violence is over,” Kachepa said.

CCJP Lilongwe Archdiocesan Coordinator Enock Kamundi Phiri said one of the objectives of the project is to generate debate on how legal inconsistences are affecting national efforts to end sexual offences.

Phiri said they will present the recommendations from stakeholders to the authorities.

“The ultimate goal of our intervention is to contribute towards significant empowerment of women and girls and creation of a violence-free environment.

“Thus, we take every hindrance towards national efforts to achieve this goal as a matter that requires urgent attention by relevant ministries and agencies,” he said.

That way, the future will be brighter for girls.

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