Last week, Dowa police arrested 32-year-old Alex Guzani on allegation that he defiled a 15-year-old mentally challenged girl on November 11 2019 at Belesa Village Traditional Authority Msakambewa.
The law enforcers, obviously quoting the Penal Code, described the girl as an imbecile, a term the Oxford Dictionary defines as a person who is stupid or “who has a very low level of intelligence.”
You cannot fault the police for using such a term but the Penal Code.
Article 139 reads: “Any person who, knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile, shall be guilty of a felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment.”
Child activists say such a term undermines the victim as implying that the girl suffered such type of abuse because she is dull.
The stereotyping undermines the integrity of victims and somehow persecutes them.
Not good news in a country where Malawi Police Service (MPS) statistics show that cases of girl child abuse are on the up due to cultural beliefs and poverty.
On June 12 2018, MPS Deputy Inspector General of Police (Administration), John Nyondo, was quoted by The Daily Times indicating that the country registered a seven percent increase in defilement cases in the first half of 2018, up from 5.5 percent in 2016 and 2017.
MPS Head of the Victim Support Unit (VSU), Patricia Njawiri, attributed the surge in defilement cases to cultural and traditional beliefs.
Njawiri said some Malawians believe that having sex with children is a cure for untreatable diseases such as Aids.
Earlier, such cases increased by 13 percent from 2016 to 2017.
Malawi News Agency reported on February 14 2017 that Central Region registered an increase of 357 cases in 2014 to 444 in 2015 which represents a 24.4 percent rise in defilement cases.
All this despite that the government came up with Gender Rights Activists to fight the crime which degrading terms such as imbecile perpetuate.
In view of this, child law experts said such a term is demeaning and reflects how the law in Malawi perpetuates blatant discrimination against the girl-child while favouring boys.
Such discrimination has been captured by African Child Policy Forum (ACPF) and Plan International report, the first of its kind in Africa, which says the laws in most countries, including Malawi, on the continent “perpetuate deeply ingrained political, social and cultural beliefs and practices designed to subjugate girls.”
In the report titled: ‘Getting Girls Equal: The African Report on Girls and the Law’, ACPF Programme Manager, Violet Odala, cited issues such as marriage age, genital mutilation and expulsion of pregnant girl children from schools.
“Girls fall between the cracks of most laws and policies, which in most cases either address women as a group or children as a group, without specific regard to the special situation of girls. The invisibility of girls in laws and policies has subsequently resulted in a lopsided legal pendulum tipped in favour of boys. African girls face double discrimination as both children and female,” Odala said.
Odala said the report reflects an overview of the law in Africa but the actual case studies took place in Malawi, Ghana, Rwanda and Ethiopia.
“Malawi has made a lot of progress as we now have Child Justice and Protection Act but the language in that Act refers to children and not necessarily girls. We are saying that the law must remind people that children are not a hemegeanous group because there are girls and boys,” the Malawian said.
She said there was need for a special law that allows pregnant girls to return to school, adding that in other cases Malawi Penal Code uses degrading language by, for example, referring to a mentally retarded girl child who has been abused sexually as an ‘imbeccile.’
In a press release, ACPF Executive Director, Assef a Bequele, said African girls are valued and respected far less than boys evidenced by exclusion, exploitation, deprivation and subjugation.
“Gender discrimination is still embedded in the laws of many African countries, even those which are signatories to international agreements. Even where laws and policies aimed at protecting and promoting the rights of girls do exist, they are frequently poorly implemented or even ignored. This is unacceptable and must stop,” Bequele said.
In the same statement, Anne- Birgitte Albrectsen, CEO for Plan International, said deeply gendered and patriarchal Africa shuts out girls’ voices.
“Their opportunities for self-development and self-determination are hugely diminished or non-existent. The Sustainable Development Goals will not be reached in Africa unless there is a radical shift in laws, policies and practices towards the best interests of girls. Getting girls equal remains one of the most pressing and persistent challenges facing the continent today,” Albrectsen said.
Reacting to the report, former child court magistrate, Esmie Tembenu, said she hoped the launch of the report would assist Malawi to amend laws that discriminate against girls in Malawi.
“An example is the Penal [Code] which permits girl children who are 16 years and above to consent to sexual intercourse yet the Constitution is not giving girl-children the right to enter into marriage and also the Child Care, Protection and Justice Act which is silent on child marriage as it only talks about forced marriage just to mention a few,” Tembenu said.
Millions of African girls face exclusion and exploitation on a daily basis because the law discriminates against them and fails to uphold their rights.
Many laws perpetuate deeply ingrained political, social and cultural beliefs and practices designed to subjugate girls, according to the report.
Among the examples of blatant legal discrimination revealed by the report include lower legal minimum age of marriage and sexual consent for girls than boys, ‘informal’ courts which compel girls to marry men who have raped or sexually assaulted them, laws which expel pregnant girls from school; failure to prosecute perpetrators of female genital mutilation (FGM) and child marriage, courts adopting patriarchal perceptions and discharging dismissing sexual assault on girls on spurious grounds such as girls looking older, discriminatory and degrading laws relating to girls with disabilities and inheritance laws, rules and practices which favour boys over girls.
The reports said the problem not only arises from the failure of national legal instruments but also from the failure of international instruments to fully address the specific vulnerabilities of girls.
The Convention on the Elimination of All Forms of Discrimination against Women is child blind as it focuses on women, and the Convention on the Rights of the Child is gender blind and it approaches children as a homogenous group.
The report finds that the exploitation and subjugation of African girls begins at birth and continues through adulthood.
Meanwhile, Malawi government has not responded to the report.
Many adolescent girls are forced to drop out of school before completing secondary level and pressured into accepting gender stereotypical roles at home and in the formal and informal world of work.
Unless there is a radical shift in laws, policies and practices, the dream of equality between boys and girls will always remain a dream.
Peter Kanjere is a versatile Journalist currently working for Times Group as Assistant Editor for The Daily Times.
With vast experience in the industry, he is also an accomplished Sports Analyst, whose exploits in sports reporting and analysis span beyond the length and breadth of the African continent.