It is hard to know which is worse. Was it the determined spree of rape and sexual assault by police perpetrated against 18 girls and women outside Lilongwe, apparently in retribution for a colleague who had been killed in a protest? Or was it the complete failure by the police and the government to deal with these crimes, arrest those responsible and charge them; in fact to desert these girls and women as though they had somehow deserved this fate?
In the end, it was left to Malawi’s Women Lawyers Association to take action on behalf of those who had been raped and sexually assaulted by the police. The WLA had already seen a report by the Malawi Human Rights Commission in which the commission said it had established that 13 women and one girl had been raped by the police in the incident, and that three other girls under 18 had been sexually assaulted. That report is however not generally available and, in any case, it had led to no action by the police.
In its application, WLA asked the court to sanction the police. The organisation asked for a declaration that the failure of the top police officials to ensure that the police acted lawfully, amounted to ‘torture, cruel, inhuman and degrading treatment and punishment’. They wanted another declaration that the conduct of the police, who were apparently sent to the area to maintain order, and who then raped and sexually assaulted girls and women, was unconstitutional and outside their lawful powers.
Right to dignity
WLA further asked the court to declare that the police who engaged in that rape spree violated the constitutional right to dignity and freedom from torture of the girls and women they attacked.
Among other orders, WLA asked the court to declare that the failure by police and government to conduct proper investigations into the rapes was unreasonable and breached the constitutional rights of the women concerned and that an Independent Complaints Commissioner ought to have been appointed years before. Not doing so was a breach of statutory duty and was unlawful, helping to confer impunity on the officers who had raped and sexually assaulted the 18 girls and women. In addition, WLA wanted compensation to be awarded to those attacked by the police.
At first, the police said they would oppose the application, but later said they had reconsidered. However, the order that the police then proposed would have left the 18 girls and women without many of the remedies sought by the WLA.
Judge Kenyatta Nyirenda, whose decision in the case was delivered last week, said he found that the sexual attacks were carried out by officers of the Malawi Police Service. Further, that no credible system had been established to monitor the conduct of the police, that no proper investigation into the complaints made by the 18 had been carried out, and that the police authorities had failed to arrest the perpetrators.
Judge Nyirenda said the only document provided by the defendants was an advert for the post of Independent Complaints Commissioner. The advert merely showed that, after the attack and the complaints about the failure to appoint such a commissioner, the position had been advertised.
He granted most of the orders sought by WLA for their clients, leaving the question of the amount of compensation to the registrar who must deal with the issue ‘within 21 days’. He also granted legal costs against the police. The judge further ordered that the police are to 'take concrete steps to investigate and arrest' the 17 policemen involved in the sexual attacks. Though the WLA had asked for an order that this be done within 14 days, Judge Nyirenda said this might be too little time to allow 'meaningful investigations', and so he gave the police 30 days to insure the arrests of the perpetrators.
But this shocking incident of rape used as a police strategy is not unprecedented. In fact, it seems as though rape is part of the weaponry of political violence used in Malawi. The country’s human rights commission issued a statement in August 2019 saying it was ‘extremely concerned’ about a female police office who had been ‘undressed’ during post-election demonstrations that month.
Similarly, an online news agency had called on members of the public to rape the wife of a human rights defender, a threat also strongly criticised by the commission.
Last weekend a former member of Malawi’s defence force was killed in what reports say was a revenge attack for his earlier rape of a six-year-old girl. And the local media commented that when the systems of justice – police and the courts – continue to fail victims in such cases, they lose legitimacy. Senior legal researcher and founder of Malawi’s Gender and Justice Unit, Sarai Chisala-Tempelhoff added, on Twitter, ‘People don’t believe that there will be a response to, or retribution for, vicious attacks.’ In the most recent case involving the raped child, ‘Justice has failed them both.’
Local media also quoted UN resident coordinator in Malawi, Benoit Thiry, on the new judicial decision. According to The Times, Malawi Thiry said the judgment was an important milestone in the protection of survivors of sexual violence in Malawi. Thiry commended the WLA for their role in the case and for reinforcing the constitutional right of survivors to access justice and effective remedies for the harm they had suffered.
He also urged that the authorities ensure a 'prompt, effective and impartial investigation' so that everyone suspected of the crimes in this case could be brought to justice and that the girls and women should be provided with the support and assistance that they needed.
'The UN reiterates its commitment to continue supporting the government and the people of Malawi to uphold human rights in particular, to ... end voilence against women and girls throughout the country.' He added that violence against women was an obstacle 'to the achievement of equality, development and peace'.