Thanks to the determined efforts of the women involved, no fewer than three recent decisions in Malawi have dealt with sexual assault, harassment or rape under extremely troubling circumstances. The trio of cases will surely act as a boost to awareness of women’s constitutional rights in Malawi, to add pressure on the police to investigate and on employers to act in cases of workplace sexual harassment.
One of these three cases concerns workplace sexual harassment at the country’s broadcasting corporation, and resulted in a tough, far-reaching decision by Malawi’s Human Rights Commission.
Another, by the high court, dealt with sexual harassment at a private company, where the company did not act, despite complaints from the woman concerned, and allowed the assaults to continue. Both these decisions will have sent a strong message to state corporations and private companies that the days when women may be harassed at work, without consequence to the perpetrator and employer, are over.
The third decision results from sexual assaults that are even more worrying because they were carried out by the police.
At the heart of this story there’s the sickening tale of police taking revenge on a community over the killing of a fellow officer by raping and sexual assaulting a number of women and girls. It’s also about the failure of the police and the state to act either to bring the police to justice or to offer compensation by way of damages to the women involved.
On 13 August 2020 the high court ordered that the girls and women involved had to be compensated with the amount to be dealt with by the court registrar ‘within 21 days’.
Last month the assistant registrar, Madalitso Chimwaza, eventually delivered a decision on the amount the state was to pay those who had been raped and sexually assaulted by the uniformed police on 8 October 2019. And though the ruling might have been later than many would have hoped, the registrar had some ringing comments that are worth reading.
The high court had found that the constitutional rights of dignity and equality of the 18 applicants had been violated. The failure of the state to act in the matter further violated the constitutional right of access to justice, and Judge Kenyatta Nyirenda said they had to be compensated for this infringement of their human rights.
Chimwaza gave a brief account of the attack and humiliation of each of the claimants. Not even women who had recently given birth via caesarian section were spared rape by the police and several of the 18 complained that they had developed venereal diseases from these attacks.
She noted that counsel for the state had insisted on ‘medical reports for rape and defilement’ in relation to these incidents, but that this was hardly appropriate since the police had not done their duty by way of any investigation into the rapes and assaults.
Chimwaza said she had to assess the compensation due to the 18 precisely because the police had ‘failed to perform their constitutional and statutory duty’ and investigate the ‘sexual violations’ complaint’. ‘It is unimaginable that, having failed to do their job timely and properly they expected the women to present evidence of medical reports, as it this was now a criminal case.’
The right to compensation for victims of sexual violence was ‘universally acknowledged’ in the various international and regional treaties to which Malawi is a party, she said.
The Police Act imposed a positive duty on the police to investigate breaches of the law including incidents of rape and sexual and physical violence or assault. ‘The Malawi police service is bound by these laws’ and by the international human rights treaties ratified by the state.
In this case, where the women were sexually and physically abused and raped by police, where there were no effective investigations and where no arrest has been made, the court should ‘show no mercy to those who seek to invade’ the rights of these women. Even at the time of the judgment not a single arrest had been made.
‘Such failure to promptly and effectively investigate the sexual violence contributes to the impunity of perpetrators of such crimes and reduces the number of women who report such cases because they lack confidence in the state security institutions.’
The court condemned ‘in absolute and strongest terms the trivial attitude that the claimants in this case were just sensationalising the whole issue, after all it was just “sex” or that they are being compensated just because they are women and girls or that because the perpetrators are alleged to be police officer. NO. The rape and sexual violence crimes committed against these women and girls goes beyond sex as it goes deep into intrusion into the personal privacy of a woman and desecrating her body without her consent. It goes deep to demeaning the dignity and integrity of a woman.
‘The perpetrators, being police officers, had an unfair advantage over the women due to their position as officers of the state. They abused their position, they failed in their duty and this cannot be tolerated.’
Gender-based violence was widely acknowledged as one of the ‘most pervasive violations of human rights in the world’ but it was also ‘one of the least prosecuted, socially tolerated and largely unpunished crimes’.
Sexual violence against women and girls had increased significantly despite progressive law to combat the problem. ‘Where state agencies such as the police join … abusers and systematically use rape and sexual assault as a weapon against women and girls, it is retrogressive conduct’.
Institutionalised discrimination against women and girls via sexual violence, ‘perpetrated by state machinery’ had to be condemned strongly. This was the correct time to ensure ‘strengthened and sustained efforts for effective access to justice for women and girls who have suffered sexual violence’.
‘Effective access to justice is an essential human right and it starts with effective investigation’.
In arriving at the court’s award, Chimwaza noted the evidence heard from the women and girls of the psychological trauma and anxiety they continue to suffer, along with stigma, humiliation and shame.
Breakdown of marriages
The individual awards ranged from MK10,000,000 to MK4,500,000 and Chimwaza ordered that the compensation be paid within 90 days. She also ordered that the compensation was not in any way to hinder future prosecution of the individual perpetrators.
Something that will strike any reader of this decision is that there was a surprising lack of understanding by some in the community for the plight of the 18. The schoolgirls among them, for example, said they had stopped attending classes because of ridicule. Perhaps even worse was the number of married women among the 18 who said their husbands had rejected them because they had been raped.
This ‘breakdown’ of marriages as a result of the police attacks was among the factors considered by Chimwaza in finalising her assessment.