There have been times when I’ve read an article in the paper and I rush to post the story on facebook. Another child defiled. Sentiments are the same. What causes the outrage is mostly the sentencing of the offender. Most cases than not they only get something under 10 years and it makes you wonder what the Magistrate was thinking.
Growing up, we’d hear stories about how a certain friend was being sexually assaulted or molested by the stepfather and I’d secretly thank God that after the passing of my father, my mother had never remarried. There was three of us—all girls.
I’m now a grown woman and I still cringe at the thought of a one year old being raped by a grown man. Some of the excuses are appalling! “My wife refused to sleep with me” was one of the reasons the man raped his daughter. Such are the cases that happen day to day.
Why the focus on child rape and defilement some of you may ask.
When we were asked to help with coordinating the One Billion Rising for Justice Event for the Malawi Chapter scheduled for the 14th of February 2014, we asked what exactly we were supposed to highlight as part of commemorating V-Day. The Southern Africa Coordinator Barbara Mhangami suggested that we focus on what people need to be aware of. The theme for this year lies in Justice and not to undermine the other gender based violence afflicted on our women, we felt the girl child needed more protection and since they can’t speak out on their own, then we the people must fight for their justice.
It was due to this that I felt I needed to educate myself on the task I was about to take on to see how we could come up with solutions on the issue of child rape/defilement. This would only happen by visiting some of the institutions already in place.
In a country where we prioritize safe-motherhood by making sure that the children born are negative from HIV/Aids, is it not a shame then that we still end up losing some girl(s) children to the same disease because of some unfortunate act forced upon them? The offenders usually get very light sentences as opposed to the maximum sentence of death or life imprisonment. These light sentences indirectly encourage the would-be offenders to premeditate their crimes without fear. What becomes of them when in most cases the offender never get the maximum sentence of death or life imprisonment for their offences of rape and defilement? Are the children not important too?
Below is a summary of the information I managed to get from those who have pledged their support to help the girl child. For now, we have an unofficial partnership which will provide a framework so we can start work on the ground.
One Stop Centre–Queen Elizabeth Central Hospital
The One Stop Centre is a centre built by United Nations Children’s Fund (UNICEF) with funds from DFID. Staff from the ministries of Gender and Social Welfare, Health, Police and Counselors from Fountains of Life provide a holistic service to adult and child survivors of sexual violence. The centre was formally opened by HE Joyce Banda in February 2013.
Basic statistics from the One Stop Centre at Queen Elizabeth Central Hospital are as follows:
1) According to Dr Neil Kennedy as many as 1 in 4 girls in Malawi suffer from sexual violence before the age of 16.
2) They attend to at least two cases of rape or child defilement a day.
Since QECH started offering drugs to prevent HIV infections after rape the number of clients/victims has gone up.
Whether it is due to the medicine they give out or the fact Malawians are now a more open people who feel free to speak out. Either way, the good thing is that they are coming forward seeking help.
The centre is open from Monday-Friday. If you happen to go there on the weekend, medical staff from the pediatric and obstetric departments will gladly assist you and refer the file to the One Stop on the next working day.
At the moment, the One Stops in Blantyre and Zomba are the only ones with their own separate facilities while in other district hospitals they share facilities with other patients. Roll-out of One Stop services to every central and district hospital has been included in the Ministry of Health plans for development of non-communicable diseases provision.
Counseling is provided by the Fountain of Life a volunteer base organization. Their services are free of charge for all victims of sexual abuse. Three quarters of the time the offenders are people who have gained trust of the child over a period of time. They also note that the grooming process encourages secrecy thus making it hard for the child to speak out about the acts.
The other partners the centre has are the Community Child Protection Workers from the District Social Welfare Office and Community Policing from the Victims Support Unit. They work hand in hand with the nurses and doctors who handle the medical/clinical issues (collection of evidence like pictures, specimens.) Once a file has been opened and handed over to the police prosecutors, the offender will more than likely get arrested and then legal proceedings will commence.
Community Policing–Victims Support Unit, Blantyre
Like the judiciary, the police is divided into four regions namely: central, south, east and north. My next stop was at the local area Victims Support Units. One of the policemen said something interesting which got me thinking about the similarities between the raped/defiled kid and a missing child. Chances of survival for both from HIV/Aids and being found respectively depends on whether they get help within the 48 hour of the act ( I have yet to verify this with medical personnel or Google). Since almost all of the rape and defilement acts are done by someone the victim knows well, they go unreported until such a time when it may be too late to save them. Very rarely is the offender a stranger which makes it hard for the children to speak out.
Thanks to the emergence of institutions like the One Stop Centre, the victims support unit also works hand in hand with the communities through the Victims Support Unit-Sub Committees. Under this program you will find the community counselors who are trained at their respective area police stations. They also engage faith based communities to help them protect the child within their communities and villages. This is done through sensitization of Human Rights to the groups and basically letting them know that the police are their friend and not the enemy.
In 1994 the Malawi Police changed its operating procedures with the change of democratic systems of government. What that entailed was that Human Rights had to be incorporated into the system hence the introduction of Community Policing into the Police System.
While this was good in that they are friendly and have concentrated on sensitizing fellow police and the population, what they lack are child friendly facilities. Normally policemen in uniforms are a scary sight to the children. Their sight makes them think they are in the wrong so may not open up to the investigators because in their child-like thinking, they are wrong. What we needed are facilities with toys, different games and civilian policemen to put them more at ease.
The missing piece in the puzzle was why most offenders literally get away with murder considering the sentences rendered upon them and the response I got was one I didn’t expect. The police maintained that they collect all the evidence which is handed to the judiciary for court proceedings and yet the offenders still get lenient sentences. The blame game had begun.
Judiciary-Blantyre High Court
Before drawing any conclusions and finger pointing at where the system was failing the women and children, I decided to hear the judiciary’s side of the story. I was very frank with them about the police blaming them for not handling the cases to their expectations of giving out high number of years when sentencing the offenders.
“There are sentencing procedures that we as a court have to follow. We take into account the mitigating and aggravating factors” was a response I got from the Chief Resident Magistrate.
I asked if raping a 1 year old was not aggravating enough and whatever happened to the law that says that rape offenders should get a death sentence but we see a lot of them walking away after a few years. It’s more of a ‘good law’ in terms of punishment but it is then met with a ‘bad law’ when it comes to the sentencing of the offenders due to the limitation of powers of the magistrates.
Some factors come into play.
1) For instance, it was alleged that most prosecutors for the Victims Support Unit are people who have not studied law not that it makes any difference but it does help in how they handle/collect evidence and information. If they read law, they would know exactly what to expect in the court room. Most end up in that position due to the experience of dealing with such cases but the question remains; do they necessarily know what language to use in court? Do they educate themselves on the new techniques or read literature out there that could be beneficial in helping their client’s case?
2) Though for one to be a prosecutor you don’t have to study law there has to be that passion for ones job. Most cases are thrown out due to a prosecutor coming forward saying that the offender had dropped the charges. In an ideal world, they would press on till they got the offender behind bars.
The points below were by far the best ones and it took me a while to get it after I read some passages given to me by the Chief Resident Magistrate:
3) One has to understand/appreciate the law to know that while rape and defilement cases call for sentences of death and life imprisonment respectively; the factors in section 1) are scrutinized closely examining all the evidence given then starting of the sentencing which calls for the MAXIMUM of a DEATH PENALTY! The same is true with the defilement cases.
Age, whether the offender pleads guilty, if the victim felt any pain, psychological effects, physical damage/injury (in some cases the victims end up with fistulas),time already spent in custody, violence during the act, the fact that it has been an ongoing affair are some of the mitigating and aggravating factors.
4) Knowing that most prosecutors are not law literate; do they understand the consequences of the act? Unless they do, they won’ take into consideration the fact that the raped victim could end up living with HIV/Aids which is a death sentence in itself. Do they do any background checks? (Knowing that not many have records on hand it would help if they could maybe go to the communities or check with other police stations if the offender has been arrested before on a similar charge. Yes this is costly and would require some resources to be provided to them which neither the judiciary nor the police have enough of).
For one to really understand the above, one needs to know how the justice system works according to the roles/jurisdiction of the different grades of magistrates.
Magistrate grades defined
So, in most cases, you will find for example that in the southern region, where there are 54 magistrates, there are only 4 Senior Resident Magistrates. 3 of them are in Blantyre while Thyolo is the only rural district with the 4th senior magistrate. Chiradzulu and Neno are the only districts without a 1st grade magistrate. Only the senior and the 1st magistrates can hear rape or defilement cases. The 1st grade magistrates are divided as follows: Blantyre 8, while Mulanje, Mwanza, Chiradzulu and Nsanje each has 1.
The difference between the grades is what matters the most in that according to the Laws of Malawi as defined by Section 58 of The Courts Act (Volume 1 of Laws of Malawi) as read with Section 14 of The Criminal Procedure and Evidence Code (Volume II of Laws of Malawi); they each have an outline as to their limitations/jurisdiction on which cases to hear and the limitation of sentencing. The most important factor in defining the grade duties lies in their duties.
Section 58 reads as follows:
In exercise of their criminal jurisdiction of courts of magistrate shall be as provided for in this Act, in The Criminal Procedure and Evidence Code and in any other written law.
Section 14 outlines the Sentences which the subordinate courts may pass:
1) A Resident Magistrates court may pass any sentence, other than a sentence of death or a sentence of imprisonment for a term exceeding twenty-one years, authorized by the Penal Code or any other written law.
2) A court of a magistrate of the first grade magistrate may pass any sentence, other than a sentence of death or a sentence for imprisonment for a term not exceeding fourteen years, authorized by the Penal Code or any other written law.
3) A court of a magistrate of second grade may pass a sentence of imprisonment for a term not exceeding ten years and a fine not exceeding K200, 000 or both.
4) A court of a magistrate of—
a) The third grade may pass a sentence of imprisonment for a term not exceeding three years or a fine not exceeding K150,000 or both;
I won’t go into the duties of a fourth grade magistrate’s because, like the traditional courts, they are currently being phased out in favor of the higher grades. Suffice to say that in as much as a penalty for rape is death, no magistrate of whatever grade may pass a sentence of death.
Some of the challenges the judiciary faces are:
1) The pay is little compared to private practice which makes most lawyers not even consider working for the government. Location is another big issue. Most would rather work in the towns than rural areas for obvious reasons.
2) Although being of national service could be enough as an incentive, there are some who feel that the judiciary human resource can do more to entice/retain graduates to take on some of the jobs even if it means being in the rural areas/districts. Houses or cars could be an incentive enough for some as they gain experience and probably move on after. The main thing is that there will be a professional magistrate on hand easing up some of the back logs in every district.
3) Under staffing can be an issue and this goes hand in hand with underfunding. This underfunding/financial issue makes it hard for (e.g.) the Chief Resident Magistrate to go to every magistrate court within their jurisdiction to review cases or check on how they are handling cases etc. This is important because they all answer to him/her. The hindrance could be due to lack of resources like cars, personnel, functioning equipments and simple things like paper.
The way forward or what we’d like to see happen to support our victims
After having read some of the law passages (in particular the ones relation to the jurisdiction of the various grades of magistrates) and listening to the Chief Resident Magistrate state his case, it is right to assume that they are doing their job accordingly considering some of the challenges they face as an institution. What was evident was that with some of the courts not have a Senior or First grade magistrate, the work load is then passed/referred to those who can assist in hearing the cases which in essence may cause a delay in the court proceedings.
At first, I was under the assumption that the lower grade magistrates hear and pass sentences on cases of rape and defilement which would then take us back to the good law versus bad law. It is my understanding that though this used to be the case; it has since changed according to the law review of 2010.
While this may be the case, to speed up some of the cases and taking this as a quick solution, lobbying the parliamentarians to review the duties of the lower magistrate courts to give them more powers would be one option to go. This could very well become a campaign issue because to borrow the quote by Nicholas Kristoff and Sheryl WuDunn, “Women hold up half the sky”. In Malawi, the protection of the girl child should be prioritized as the women constitute for more than half of the population. When we take into account the fact that one in three women or girls will undergo some form of sexual violence in their lifetime, it is right to assume that most of the abuse cases go unreported.
There’s also that issue of them being lay magistrates, people who didn’t read the law but rather took a crush course to help in the courts based on their experience and little knowledge learned.
As I was about to leave the Chief Resident Magistrates chambers, he stood up and answered the question that had been bugging me all along, what would be the best quick fixer to the issue at hand.
1) Establishment of a Children’s Magistrate court would be of great help to the judiciary.
2) Setting up more One Stop Centre’s across the country possibly in every district because lack of resources at the rural hospitals may make it hard or impossible for the personnel to collect enough evidence or specimens.
3) Funding. In order for them to do their job effectively, they needed the funding to enable them to get their hands on the necessary resources. As they are right now, they don’t get the funding to meet their needs.
4) Engage the men to join us save the girl child. There is a great need to sensitize our men on the dangers and impact sexual abuse or any form of gender based violence can have on the victims. It breeds a world full of women who have trust issues, low self-esteem, very angry, depressed and many more mixed emotions. Who wants to live in a world like that? If we are to co-exist then there is need to get along. The earlier we teach our boys that women too matter the better off we will be as a society and a country.
5) Passion is one trait lacking in most prosecutors. If they had the passion to follow through their cases and disregard factors like corruption (an assumption of mine) especially when you read about a business man or well known figure walking away because his excuse was that she (the victim) didn’t feel any pain. Money has been known to pass hands and wrong is wrong and people need to serve their full sentences regardless of their social standing.
6) This is where we all come in as a people, as a country. At some point we have to ask ourselves why we are here on this earth. Everyone one of us was given some talent or trade that can be used for the betterment of our communities whether it’s marketing skills or medical knowledge of managing of finances. Now is the time to use them; give back to the nation. Where ever you are start making a positive difference is someone’s life. Charity begins at home. How can the outside world help us when we can’t do anything on our own?
I urge the people of Malawi to rise up for Justice for our girl child. Enough of the Violence!!