High court judge finds 'no place' for sexual offences corroboration rule in Malawi

2 October 2020 · Carmel Rickard

Many women and men have long felt uncomfortable with the corroboration requirement attached to trials of sexual offences. This requirement, whether a matter of law or practice, appears increasingly unjustifiable, unconstitutional even. It is inevitably, and almost exclusively, directed against women who are the overwhelming targets of sex crimes. Malawi now appears to have joined the list of jurisdictions where the corroboration rule will be regarded with suspicion and discarded. The latest decision is by Judge Fiona Mwale, but it builds on an earlier judgment by another judge from Malawi, Maclean Kamwambe, as well as legal and academic critiques of the corroboration rule. Perhaps, with two clear decisions against the corroboration requirement, other Malawian courts will adopt this approach as well, without having to wait for the supreme court of appeal to speak?

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From being standard practice, the requirement that there be additional corroboration in sexual crimes is gradually losing its grip. Several African common law countries have already specifically stopped insisting on this requirement, South Africa and Namibia among them.

In Uganda, several judgments - including one by a single member of the Supreme Court – question the added corroboration requirement and find that it could not be justified.

As far as Malawi is concerned, a recent high court decision by Judge Fiona Mwale has been making news. That’s because of the strong comments in her judgment that the practice should be ‘relegated once and for all, to its rightful place which is … non-observance’.

Toddler

She made these comments in a criminal appeal involving a toddler who had allegedly been ‘defiled’ by a neighbour of the child’s family. Counsel for the convicted man argued that the evidence given by the child’s mother in the prosecution had been ‘uncorroborated’ and should thus not have been relied on by the convicting trial court.

When she reached the issue of corroboration in the appeal Judge Mwale noted that the requirement for corroboration of the evidence of a complainant in sexual offences ‘is based on a practice and is not a legal rule’. It became enshrined in English law in the 1680s, and since then has been repeatedly justified by referring to the alleged tendency of ‘female complainants’ to bring false charges.

DIscriminatory

‘(O)ver the years this practice which is blatantly discriminatory against women has lodged itself firmly in our jurisprudence and enjoyed elevated status not simply as a practice but (as) an immutable rule.’

As recently as 2004 it was strongly restated in the Malawi courts, with a warning that it was ‘always essential’ for a judicial officer to have been alert to the danger of convicting on a complainant’s ‘uncorroborated evidence’.

However, under Malawi’s present constitution, the practice of requiring corroboration in cases of sexual offence based on the fact that ‘women are unreliable witnesses’, had now to be challenged, Judge Mwale said. ‘It is discrimination against women based on the sex or gender and cannot be sustained.’ This was particularly so since the constitution ‘expressly forbids discrimination on any ground, including sex and gender’.

Unlawful

It was also unlawful to require corroboration, she said. The Criminal Procedure and Evidence Code made it clear that ‘no particular number of witnesses shall in any case be required for the proof of any fact.’

Judge Mwale’s comments follow many years of criticism of the additional corroboration requirement, including in academic theses of 2010 and 2012, where the writers noted that Malawi’s constitution was violated by the requirement. These writers said the requirement infringed the right to dignity of women since they were most often complainants in cases requiring corroboration. Malawi was also in breach of its international law obligations on women by continuing to demand such corroboration as a standard feature of cases involving sexual offences.

Another thesis, illustrating the gendered nature of the corroboration rule, quoted a case from the 1960s in which the court said, in so many words, ‘as a matter of practice in every case of alleged sexual assault upon a female, corroboration should be sought for the complainant’s evidence.’

Warns

The problem of these approaches was highlighted in a report entitled ‘Access to Criminal Justice Services’. Published in 2019, the report was commissioned by the judiciary of Malawi and carried out with the help of Unicef. Among its observations, the report notes: ‘Acquittals in sexual offences due to lack of corroborative evidence is gender biased …. The corroboration standard has (an) unfavourable impact on women’s and children’s access to protection and justice’.

Judges and academic writers on this subject have pointed out that a court can convict without this additional corroboration ‘provided it (the court) warns itself of the danger of doing so’. It has repeatedly been declared fatal to a case when taken on appeal if the trial court convicted on uncorroborated evidence without ‘warning itself’.

But in a 2018 case, decided by Judge Maclean Kamwambe, even this ‘compromise’ of a compulsory self-imposed ‘warning’ by the judicial officer was questioned. The judge quoted earlier decisions about a court ‘warning’ itself ‘as to the danger of convicting without corroboration in sexual cases and cases which depend on the evidence of an accomplice.’

Bold enough

Then he commented: ‘I wish to suggest that a court does not even need to warn itself of the danger so long as there is enough circumstantial evidence to satisfy the legal requirement of proof beyond a reasonable doubt.’

‘In my view, today we could be bold enough to ignore corroboration and merely consider if the circumstantial evidence suffices to secure a conviction. … We are in a gender sensitive era and therefore should do away with laws, practices and notions which seem biased in favour of one sex. Such practices tend to be discriminatory and likely to be unconstitutional if examined closely.’

Judge Mwale, who quoted the Kamwambe judgment extensively, concluded that the practice requiring corroboration in such cases ‘has no place in contemporary legal theory’.

‘If the circumstantial direct evidence in a case can prove beyond reasonable doubt all the elements of the offence, it is not necessary for a trial court to look for any further evidence to corroborate the complainant’s version of events,’ she said.

Carmel Rickard

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