A significant development is under way in Malawi’s high court judgments on sentencing in child rape cases. Three new decisions by a couple of high court judges show a clear determination to treat such crimes with great seriousness and for sentencing to reflect the gravity of the crimes. The judges have also made significant critiques of aspects of defilement cases, with suggestions for what can be done to improve matters.
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All three of these new cases involved child rape - ‘defilement’ in Malawi – and the courts were required to impose sentence or review the sentence already imposed by a lower court.
The results confirm a growing new trend in Malawi. In one case where a 55-year-old man repeatedly raped his 13-year-old step-daughter, now pregnant with his child, the sentence imposed was 30 years with hard labour. In the other two cases, involving four-year-old children, the judge overturned the 11- and 10-year sentences imposed by the trial courts and instead ordered that both the convicted rapists serve 45 years with hard labour.
Just as significant, in all three cases the judges made important comments dealing with the nature of the crime they were considering and shortcomings in the way such cases are handled by the authorities, with suggestions for improvement.
The case of R v K the accused was 55 and his step-daughter was 13. The court heard that he had repeatedly raped her and that she was now pregnant. The family had tried to obtain an abortion, given the circumstances, but had been unable to do so as it was too late in the pregnancy.(The name of the accused has been redacted to prevent identification of the child concerned.)
The magistrate who heard the matter, referred the case to the high court as she felt the appropriate sentence would be more than the 21 years she is able to impose.
In his decision on sentence, Judge Chifundo Kachale quoted a judgment delivered earlier this year, in which the court had censured counsel for making ‘petty arguments’ about mitigation based on age – asking the court to consider someone aged 43 as ‘an old man’ for the purposes of sentence, for example. The judge in that earlier case said such arguments risked trivialising a very serious offence.
Faced here with the case of the young girl, pregnant by her step-father, Judge Kachale said he had to register his ‘shock and disbelief’ at argument by defence counsel. Counsel had submitted the accused was just ‘an ordinary rural citizen’ who was simply living by ‘wrong cultural beliefs and values’ in that his own wife, mother of the defiled child, had approved of him having sex with the child ‘as opposed to extramarital affairs’, and that this state of affairs should lead to leniency by the court.
No such cultural belief could be accepted as somehow reducing the responsibility of the accused, said the court. ‘That counsel would even suggest [such a thing] displays the real depth of vulnerability’ experienced by girl children.
Judge Kachale said that in finding a proper penalty, the court must clearly say to an offender ‘that one cannot hide behind gross and abusive values to plead for mercy’. He imposed a sentence of 30 years with hard labour.
The next two decisions were both delivered by Judge Annabel Mtalimanja. They were matters that came before her for review of sentence, and concerned the rape of two four-year-old children.
Levison Harlod was sentenced to 11 years. He was 33, a mature married man, with three children of his own. He was well aware of the age of the child he raped. She was ‘practically a toddler’ and nowhere near being ready – in any sense – for a sexual encounter, said the judge.
She added that defilement was often associated with ‘psychosocial problems in children’ who showed significantly negative outcomes by way of poor academic performance, low self-esteem, depression and poor social relationships.
Given that reality, the judge pointed out that there was a problem with how ‘first responders’ dealt with children who had been raped. They took the victim to the police and for medical examination. However, she had never yet come across a case where the victim was ‘referred for assessment of psychological impact’ and it was high time that the criminal justice system made such an assessment a ‘routine requirement’ in sexual violence cases. Reports covering these issues would help the courts make more informed decisions on sentencing.
In this case the child had not been assessed, but the court could not simply conclude from that omission that she was left without any psychosocial trauma.
She said the mitigating factors pleaded by council faded next to the gravity of the offence, and she set aside the 11 years initially imposed, replacing it with a sentence of 45 years, with hard labour.
In a second, unrelated, case involving a child aged four, the accused, Afete Daniel, had initially been given a 10-year sentence, but the matter was sent to Judge Mtalimanja for review. Daniel, 29, a married man, had lured the child to his house by promising to give her some money. On his behalf it was argued that 10 years was a proper sentence: it ‘befits’ him, the crime and the need to protect children from would-be offenders.
The judge did not share his view. As in the Harlod case, she said a psychosocial assessment should be a routine requirement in sexual violence cases, particularly those involving children. Even without such a report, however, the court considered that the aggravating factors in this case far outweighed the mitigating factors and that the initial sentence imposed was ‘glaringly, manifestly, inadequate’.
Sentences in cases of child rape should be ‘stiff enough to match the grave seriousness of these offences’ and thus, despite the mitigating factors, the gravity of his actions meant that his sentence should, of necessity, be increased from 10 years to 45 years with hard labour.
What about adult women?
Taken together, these three cases, and the earlier sentencing decisions on which they are built, show a new determination by the courts to impose far tougher sentences for child rape. But they also raise two important questions. First: at some stage a rapist, given one of the new, far longer, sentences, will take his jail term on appeal to the apex court – and what will that court have to say? Second: what about the rape of adult women in Malawi? What level of sentence should be imposed in such a case? It is one of the shocking truths about the criminal justice system in Malawi that very few such cases ever make it to court, let alone to the stage of conviction and sentence.
- Reacting to the series of judgments on conviction, the Malawi Human Rights Commission commended the judiciary on the ‘recent progressive judgments’ in cases of defilement, including the three discussed above. The commission described these as ‘gender responsive judgments’ and called on the judiciary to ‘ensure the pronouncement of stiffer punishments for all sexual offences’. The commission also urged other bodies such as the Ministry of Gender, Community Development and Society Welfare to ensure that laws [especially those involving gender-based violence] were effectively enforced, that women and girls were protected from violence and that effective reparations for victims were made available. The commission also urged the public to watch out for signs of abuse of children.
Read MHRC statement