Injustice in the Malawian justice system and the objectification of victims

2013 Silvia Neagu 100x150By Silvia Neagu

While I’ve spent a substantial portion of my time so far doing legal research at the university, I also attended court to watch the proceedings of defilement cases. The difference between the Canadian justice system and the Malawian system was shocking at first.

Firstly, the magistrate met with us in his chambers before the hearing, discussed the case openly and made no effort to at least appear impartial. He commented that “you can tell a guilty conscience” because the defendant was not asking a lot of questions. During the proceedings, you could hear the magistrate’s phone vibrating and he also once interrupted a sentencing (before revealing the sentence) to have a  5-minute phone conversation. During the same sentencing, the magistrate wanted to make a point of how lenient he was being, so he passed around bits of paper to everyone in the room and asked us to write down what we thought the sentence should be. Although Alison and I tried to say everything to get out of it, he insisted we take part in the exercise and assured us this would not change the sentence.

The most shocking fact was that the accused was unrepresented and was expected to lead his own defence, despite a lack of basic education. The defendant’s questions to the prosecution’s witness were completely off-target and made the whole process feel like watching a train wreck in slow motion. Because the accused leads his own defence, this also means that he or she is expected to cross-examine the victim when he/she testifies, which is understandably hugely traumatizing for victims. However, in this particular case, the three-year old victim had testified at an earlier date and the accused had not asked any questions. The defendant’s complete lack of understanding of the justice system also meant that the magistrate further compromised his appearance of impartiality. At one point the magistrate was suggesting possible issues that the defendant could raise.

The court room at the Magistrate Court in Zomba, Malawi.

The court room at the Magistrate Court in Zomba, Malawi.

Our meeting with the magistrate and some police prosecutors was also revealing of some of the subversive attitudes towards sexual assault victims and women in general. When discussing the issue of consent, the magistrate explained that they would expect a woman to show evidence of her lack of consent, depending on the relative sizes of the accused and the victim. To illustrate this point, the magistrate then began suggesting that I, for example, would not necessarily be able to accuse one of the thinner police officers in the room of assault. When I looked incredulously at him, he then took the female prosecutor in the room as an example and someone joked about her “huge” size. The magistrate and some of the prosecutors’ attitudes toward victims of defilement also varied with the victim’s age: the older the victim, the less sympathetic they appeared to be.

When discussing the case that day, everyone repeatedly praised how clever the 3-year old victim was and what a shame it was that we had not been present during her testimony. The magistrate and police repeatedly offered to have us meet the girl, which we declined, explaining that we did not wish to trouble her further, even more so because she did not speak English. Despite our refusal, the next time Alison and I were in court, they brought the victim to meet us. It was very awkward and extremely uncomfortable to watch the magistrate question the victim for our benefit – and it was frustrating to realize that there was nothing we could do to stop it. The child was confused as to why two “azungus” (term for white people/foreigners) were there and apparently thought we were adopting her.  When we told this story to our director, Fiona Sampson, she commented that this was an “objectification of the victim”, which is a fitting description.

Another issue that was troubling us was the influence of our physical presence in the court room. When we tried to sit at the back of the court, the magistrate immediately motioned for us to come to the front. In fact, when the magistrate was reading out his judgement at the end of the trial, his judgment included a reference to “our guests from abroad.”

On another occasion, we had informed the prosecutor the particular day that we would be attending court. When we arrived, a clerk told us that the cases were cancelled that day because the President was in Zomba and all the police officers and vehicles were therefore busy. As we walked back to our hostel, we ran into the police prosecutors on the road, who were bringing the accused to the court house specifically because they knew we would be there that day. So Alison and I walked with three accused, two police officers (and the dog from our hostel that was following us around) back to the court house. We were quite the sight !

The Precariousness of academics in Malawi and adventures in legal research

2013 Silvia Neagu 100x150By Silvia Neagu

Muli Bwanji ! Greetings from Malawi!

I’ve been in Malawi for over a month now.  My host organization, the equality effect, is a Toronto-based organization which uses the law to enforce the rights of African women and girls. The organization is starting a new project in Malawi, focusing on the legal treatment of defilement, the legal term for rape of girl children. The organization sent a University of Toronto intern and I to the University of Malawi in Zomba for the first half of our internship.  Zomba was previously the capital city under Malawi’s first president, but is now best described as simply a “big village”.  It is now surpassed in size and importance by the capital, Lilongwe, and the business capital, Blantyre. The town is overlooked by the mountainous area of the Zomba plateau, which makes the town breathtakingly beautiful.

Background on Malawi

In case you do not know much about Malawi, here are some quick facts about “the warm heart of Africa”: the landlocked country sits at the crossroads between East Africa and Southern Africa and was formerly a British protectorate called “Nyasaland.” The country became independent in 1964, and elected its first president, Hastings Banda, whose dictatorial “one-party” reign endured until 1994. Malawi is one of the poorest and least developed countries in the world.  As one of the professors we met observed, “this country is run by development agencies.”

65% of Malawi’s population lives on less than 1$ a day. To put things in perspective, the head waiter at my hostel told me it took him 5 years to find his current job after being let go from a job at a bank.  The prevalence of HIV in Malawi is among the world’s highest ; 11% of the population currently lives with HIV. Malawi’s population is also very young ; 58.8% of the population is 19 and under.[1]

Working at “Chanco” during a sit-in

Our supervisor, Professor Ngeyi Kanyongolo, a legal expert in women’s rights  in Malawi, wanted us to come to Chancellor College (“Chanco”) in order to interact with students and attend some classes. Unfortunately, for the first three weeks of our stay the students were on “sit-in” (strike).  The university was pretty deserted, although we were lucky to meet some of Dr. Kanyongolo’s research assistants, who were extremely helpful in introducing us to the university and Zomba. As we soon discovered, it is not uncommon for students’ academic year to be disrupted in Malawi. When we asked students when their academic year usually begins and ends, they gave us varying dates and said it depended on the dates announced by the government.

The accounts we were given of the “sit in” were, perhaps, a good introduction to the situation of political rights in Malawi, particularly when financial aspects are at play. The students were demanding higher allowances from the government. When the sit-in was announced, the government decided to close the school, giving students only 8 hours to vacate the university (including those living in the university residences). After several weeks, the government gave the students the “choice” of returning to school if they signed a form stating that they “agreed” to the previous conditions. As any student in the world can imagine, being given the “choice” to finish a degree that you’ve almost completed is not much of a choice at all.

We were also informed that the university professors also recently protested, demanding academic freedom, after a professor’s comments in class led to him being summoned by the Inspector General for questioning. The professor had compared the precursor events of the “Arab Spring” to the fuel shortage in Malawi at the time, during a political science class. So, one of my first lessons at Chanco was that when a university is entirely government sponsored, students’ education is easily disrupted, and professors’ ability to speak their minds can be extremely fragile.

Entrance to Chanco

Banner proclaiming Academic Freedom at the entrance to Chanco

Adventures in legal research in Malawi

Doing legal research in Malawi definitely falls under the category of “Things they never teach you in law school.” Firstly, power outages can happen at any time of day and their frequency and duration are completely random. During our first week in Zomba we experienced power outages nearly every day (sometimes for almost the entire day).  In the past couple of weeks, we have been lucky to only have one or two a week. I have learned to ensure that my computer is well-charged.

Secondly, the availability and reliability of internet imposes another challenge. We are lucky that the law faculty has wifi (restricted to staff use only), but it is often slow and does not work during a power outage. We also bought “dongles” – portable internet modems- but these also often had signal problems and limit the amount of downloading/uploading you can do. Therefore, we often save our downloading and uploading for the days when the university wifi is functioning well.

Thirdly, Malawian jurisprudence is extremely hard to locate. While there is a “MalawiLii”, it currently has very few cases. There is no search engine that allows you to search for the leading cases on specific topics. Students tell us that they rely on their course reading lists and photocopies of cases passed down from upper-years to learn the main cases in a specific area of the law. My co-intern and I therefore have been relying on secondary sources to point us to some of the leading cases. We are also lucky that Edge Kanyongolo, the Malawian constitutional expert, had an office steps from us and was helpful in pointing us in the right direction.  Another challenge is that, once we do locate a case, the judge’s reasoning is often very fact-specific and lacks in critical analysis of the rights at play. This makes it difficult to anticipate how a court would interpret a right in a novel factual context.

Lastly, a large number of cases in Malawi are unreported, leaving the current realities of the Malawi justice system largely outside our reach.  For instance, all defilement cases are decided at the magistrate court level (lowest level of courts), where cases are not reported. Because the Department of Public Prosecutions essentially never appeals decisions from the magistrate courts, many acquittals are not only inaccessible to legal researchers like us, but are also shielded from revision by other courts.

University greens

View from the law faculty at the University of Malawi’s Chancellor College

 


[1] “Malawi Demographic and Health Study, 2010”, Malawi National Statistics Office, 2011.

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