A new decision by the high court of Malawi should provoke outrage. Brian Sambo, assistant registrar of the high court in Lilongwe, has been assessing the damages that must be paid to prominent women’s rights activist, Beatrice Mateyo. She was arrested during a protest against gender-based violence (GBV) because police thought her placard ‘insulted the modesty of women’ as it included the local word for a vagina.
Mateyo obtained a default judgment in the high court ordering that she be awarded damages for false imprisonment as well as punitive damages and compensation for the violation of her constitutional rights.
Sambo, who, as registrar, has the task of assessing the damages to be paid, referred in his judgment to the wording of her placard: ‘Being born with a vagina should not be a problem. Being born with a vagina is not sin’. Sambo said that the poster she carried amounted itself to violence against women because of the language it used, and that he would give her no more than nominal punitive damages.
‘The placard itself constituted two major forms of violence against women, children and girls’, Sambo wrote, ‘verbal abuse and psychological/emotional abuse.’
Mateyo’s original case was taken up by the Women Lawyers Association of Malawi and supported by the Southern Africa Litigation Centre (SALC), after she was arrested in September 2017 during a march against GBV in Malawi.
Mateyo’s particular placard was, according to SALC, intended to send a message against the objectification of women and to encourage open discussion about the factors fueling GBV. Like other placards at the protest, the one carried by Mateyo was written in Chichewa.
Giving the background to Mateyo’s claim, Sambo said the police officers found her placard ‘offensive’ and arrested her ‘on the basis that she might have committed the offence of insulting the modesty of women’.
According to Mateyo’s evidence in court, she was forced into a police vehicle and taken to the Lingadzi police station where she was told ‘that she had insulted all women’. Her shoes and phone were taken from her and she was placed in a holding cell. She told the court that the experience was degrading and that she was verbally abused by the police.
The police witness who testified denied much of the evidence, though he agreed that Mateyo had been arrested on suspicion of undermining the modesty of women. He said that Mateyo knew why she was being detained, that ‘her placard mentioned a women’s private part’, and that the language of her placard ‘was very vulgar to him and his fellow officers’.
Sambo said the facts indicated that Mateyo ‘was subjected to false imprisonment for an hour or so’. He considered a two-hour detention ‘not long’, adding that the evidence did not ‘disclose aggravating circumstances’, and awarding her MK 3 500 000 (USD 3 500) for false imprisonment.
On the question of constitutional damages, he said the march against GBV was ‘a noble cause’ and that unless police thought there was a real and imminent danger to her audience, they should have left her to conclude the march and then taken her for questioning afterwards.
According to Sambo, Mateyo had ‘contributed to her own fate by carrying around the offensive placard’. Moreover, she had been able to participate in some of the march, so her ‘constitutional right to participate in the solidarity march was not completely violated’. He thus awarded her MK 1 500 000 (USD 1 500).
Finally, on the punitive damages she claimed, he said the question was ‘a bit tricky’, and the amount of damages awarded had to be reduced where a claimant is found not to have acted reasonably. For example, if the victim of an assault used ‘provocative words’ before an assault, those words themselves could mitigate the damages, he said.
In this case, the placard she carried ‘was indeed not good at all’.
‘If truth should be told, what she had carried was actually greater form of assault and violence against women; quite abusive, undermining and insulting to the modesty of women who happened to be the subject of the march.
‘In essence, what she had carried was complete in the opposite of what she was trying to defend or intercede for. It was a plain contradiction.
‘The placard itself constituted two major forms of violence against women, children and girls: verbal abuse and psychological/emotional abuse’.
Sambo then quoted an article that listed different kinds of verbal abuse and explained that these inflicted psychological trauma’. In his view, Mateyo’s placard ‘was not short of those forms of violence.’
According to Sambo, it didn’t matter that she carried a placard prepared by someone else as she must have known about the ‘violent messages’ it contained.
‘The mere fact that she accepted to carry it, knowing very well it carried violent messages against the people she participated to fight for, there is no justification for this court to award her punitive damages. My observation would have been different if what she was carrying was inoffensive. If anything, what can be awarded here are only nominal damages, and in this case MK 100 000 [less than USD 100] is sufficient, in my view.’
Women’s groups have not yet reacted to the decision and Sambo’s extraordinary comments. However, it is far from unusual for women, protesting against patriarchal practices, deliberately to use words like ‘vagina’, and even other words for a vagina that might be regarded as more crude, in their public protests. This is done in order to claim back parts of their bodies that men have long denigrated and violated. They also argue that to do so will help girls to name and speak about their bodies with more ease, something particularly important during testimony in cases of sexual abuse.
In my view, women are entitled to do so, and to refuse any obligation to use euphemisms in naming their own body parts.
Sambo’s comments will only add to the sense that an ignorant, insensitive patriarchy is alive and well in Malawi, both in the police service – and in parts of certain courts.
* 'A matter of justice', Legalbrief, 13 September 2022