Against the background of a sharp and disturbing rise in the rape of children in Malawi (a problem in a number of other jurisdictions as well), a prominent high court judge has delivered a decision setting a new benchmark for sentence and judicial comment in response to such crimes. His important new judgment comes as police in Malawi have released new rape statistics showing that the number of young girls raped (or ‘defiled’ in terms of Malawi’s law) is far higher than the number of adult women raped. Police have speculated that this was due to ‘superstitious beliefs’ that raping a child brought luck or wealth.
Malawi’s Judge Redson Kapindu is used to expressing controversial views on the law. As a law lecturer in South Africa, he had no hesitation in drafting insightful critiques of SA’s apex constitutional court. This was in his then capacity as law teacher at the University of Johannesburg, and as deputy director of the South African Institute for advanced constitutional, public, human right and international law.
Back home in Malawi, and a member of the high court bench, he was one of five judges, sitting as a constitutional court, who found Malawi’s 2019 presidential election invalid. One result was that a new government was elected following the re-run elections. Another was that, along with his four colleagues, Judge Kapindu was given the 2020 Chatham House award, in recognition of their courage and independence ‘in the defence of democracy’.
In other words, anyone reading a decision by this jurist should expect him to speak his mind. And indeed, his judgment in the case of Fabiano Maliko, delivered last month, offered a number of important criticisms and observations.
Maliko, 43, was convicted of child rape – legally termed ‘defilement’ in Malawi – involving a 10-year-old child. From the first paragraph it was clear that this would not be merely a technical box-ticking exercise as is so often in the case in a number of jurisdictions.
Judge Kapindu begins by describing the case as ‘very sad’ and ‘heart breaking’, adding that such offences ‘shock society to the core’.
The child and Maliko knew each other well: Maliko was a friend of her father’s and she called him ‘uncle’. The father sometimes asked Maliko to drop off or pick up the child from school. On some of these trips, Maliko would ‘divert to his house’ and there sexually abuse the girl.
The judge said it was wrong of the trial court to described what happened as Maliko ‘having sex with’ the child. The phrase, ‘having sex with’, suggested informed consent, he said, yet this is clearly not what happened in this case; rather it was forced sex, carnal knowledge, committed ‘multiple times on multiple occasions’.
He said he chose his words, graphically describing what had happened to the girl, very carefully, aware that they constituted ‘language of cultural and moral discomfort’. But that was necessary both for a legally accurate description of what happened and because ‘perhaps such cultural and moral discomfort is necessary for societal reflection on this scourge’.
The court could not imagine her physical pain or the psychological trauma that would leave devastating, lasting effects on her. In addition, the court could hardly imagine the trauma inflicted on the parents and loved ones of the child. ‘They are all victims.’
Judge Kapindu confirmed conviction in the case, then turned to Maliko’s appeal against his sentence of 14 years with hard labour, imposed by the trial court. Maliko said the sentence was ‘manifestly excessive’ and his legal team suggested six years might be more ‘appropriate’. And at first counsel for the state appeared to agree that the sentence should be reduced somewhat – perhaps to 10 years, with hard labour.
As to mitigating factors, the best counsel for Maliko could find was that ‘at 43 years of age, (he) should be considered an old man’, something that should ‘weigh heavily’ with the court. Further, he had pleaded guilty.
Then Judge Kapindu reminded state counsel about certain cases where sentences of 18 and 20 years with hard labour were imposed, and there was an about face – perhaps the 14-year sentence should be confirmed after all, counsel suggested.
The judge said it was ‘plainly ridiculous’ to describe someone an ‘old man’ who was aged just 43, and he ‘strongly advised’ counsel to avoid raising such ‘flimsy arguments’ in future.
'Vile and abhorrent'
He found several cases where the original sentence for defilement had been increased on appeal, and a decision in which the judge expressed concern that in some sexual offences cases, certain trial courts were imposing sentences ‘not consistent with the grave, vile and abhorrent nature’ of the offences. Nor were they consistent with the intention of the legislature, given the ‘very high maximum penalties’ prescribed for such crimes.
The penal code stipulated that someone convicted of such an offence was liable to life imprisonment, this maximum punishment being stipulated to show the seriousness of the offence and public revulsion.
But sometimes the law was misinterpreted and then such crimes attracted sentences considerably less than the legislature intended.
The court considered all factors in Maliko’s case including the fact that such crimes were on the increase. Without mitigating factors, the fact that a mature man defiled a child such as happened here, would attract the maximum sentence of life, he said. Parliament had not prescribed maximum penalties ‘for decorative purposes’ and meant what it said about the punishment to be imposed.
Here, the offence was so bad that even the fact that Maliko was a first offender carried little weight. He did however plead guilty and that should count for something, mitigating the life sentence he would otherwise be awarded.
Suppose Maliko were to live to 90, he would have another 47 years of life. Seven years off that for his guilty plea left a sentence of 40 years. That sentence – with hard labour – should replace the ‘manifestly inadequate’ original sentence of 14 years.
The judge then took a further step, unusual in such cases in Malawi – he said the court had been told that the child concerned had had no professional counselling at all. The state should have referred the child to the correct department, but this had not been done. Not even the parents had followed up to ensure proper support services by the state.
The judge therefore directed that the relevant department follow up to ensure she is given the proper support services. The department is also, within three months, to submit a report to the child care review board for any further directions on what should be done.
* A Matter of Justice, Legalbrief, 9 February 2021