There was no dispute that the two under-age boys involved in this case were circumcised by Population Services International (PSI). The legal question was whether there was consent for the procedure, since their parents were neither consulted nor had the faintest idea of what was going on.
As Dingiswayo Madise, the judge who heard the matter, stressed, the circumcisions were ‘non-therapeutic, non-emergency, non-religious and non-cultural’ and were part of PSI’s voluntary male medical circumcision (VMMC) campaign. (This is a campaign aimed at reducing the spread of AIDS in communities.)
The boys’ story was that they were on their way to school when they heard a vehicle playing some music. They said that when they reached the vehicle, parked near a bottle store, the driver invited them to board the vehicle, though he did not say where it was going.
One of the two boys, S M, aged around 12 at the time, said he and his friend, then aged nine, climbed aboard: he said he didn’t want to miss the opportunity of a ride in a vehicle as this was a rare experience for him. In all, there were about six school-going children in the vehicle, he told the court.
The vehicle took them to a place, identified as a health centre, where they were ‘led into a tent’ and then both circumcised. According to their claim, they were not given adequate information about the risks and permanent nature of the procedure, nor ‘the fact that [they] would forever live without a part of their manhood.’
In their claim they said they had suffered pain afterwards for several days and that ‘their manhood [had been] deformed and disfigured’. S M said while they were in the tent, a nurse ‘explained to them that they will be circumcised and that they will be given a bag and soap’. Though the nurse also showed how circumcision is done, he ‘did not tell them that they will feel pain and that they will forever have no foreskin.’
S M said that the nurse had given forms to a woman in the vehicle and asked her ‘to sign forms for all the children who were not accompanied by a parent.’
A sample of blood was drawn from S M’s arm and his blood pressure was recorded. ‘When he was about to be injected on his penis, he wanted to leave the room but he was afraid to do so because it would have meant that he would walk a long distance, his friends would laugh at him and he would not receive a bag.’
‘He was injected four time on his penis during which he felt severe pain because one of the injections pierced the vein on the underside of his penis. He cried for some time.’
The wound was then sutured and dressed and he was duly given a bag. It contained soap, a pair of underpants and 10 packets of a pain reliever. Then he was taken back in the vehicle and dropped off at the place where he had boarded.
He felt severe pain on the second and third day and was then taken to another clinic where he was admitted for treatment for three days.
S M’s father testified that when he discovered what had happened, and his son’s condition ‘started to deteriorate’, he called the PSI number on the bag and asked for an explanation. The person he spoke to apologised, and arranged to visit their home. The father said he would never have agreed since the child had suffered from an inguinal hernia for which he had had surgery twice.
The father then lodged a complaint with a PSI official who ‘apologised for not having sought ... consent’.
The other child, B G, then aged nine, said that he had tried to run away when he was ‘about to be injected on his penis’, but that he was ‘strongly held’. When he got home, he took off the dressing and tried to clean his penis with salty water, ‘because he had not understood that the wound was to be cleaned with salty water after [PSI] came to remove the bandage’, and thought it had to come off that same day. After he removed the bandage, he bled ‘profusely’ and felt severe pain.
Over the next few days, he tried to pull out the stitches which caused even more bleeding. ‘He would cry all night long’, said his mother, and she had to take time off to take care of him.
B G’s mother said she came home to find our son bleeding. When she called PSI the agent with whom she spoke apologised for not having sought her consent.
Judge Madise considered the established law on questions of consent and other issues raised by the matter. Then he said, ‘This is a typical case where the defendant has abused the legal process.’ PSI could have settled the matter without going to court, he said. PSI ‘should be ashamed that they defended this matter.’
‘There is clear evidence which has not been challenged that the boys jumped into this motor not knowing where they were going. They arrived at the health centre without their parents or legal guardian. The nurses proceeded to start the process of circumcision without seeking consent from the parents or legal guardian.
‘I find it insulting to the administration of justice that the defendant has stated in their defence that the woman who was also in the vehicle gave consent. Who was this woman? She did not come to give evidence.
‘For this court to be writing this judgment is surely a waste of the precious time of the court. … The defendant’s act in carrying out the circumcision on the minor claimants without first getting informed consent from the parents or guardians … was unlawful.
‘I find that there was no consent before the circumcision was performed and therefore there was assault and battery. … The fact that [PSI] positively responded to the call and took [S M] to the clinic in Blantyre in itself does not cure the tortious acts.
‘The claimants must succeed in all claims … with costs.’
In the wake of the judgment, the parents must now issue summons for an assessment of damages, and so it is not yet clear the amount that will eventually be awarded.
PSI is involved in the important task of encouraging men to be circumcised in Malawi, a country without a strong cultural tradition of circumcision, because the procedure has a proven impact on HIV rates.
Against the background of the factual evidence in this matter, however, it is interesting to read how, in theory, the VMMC says it handles under-age volunteers for circumcision.
One PSI document says, of its campaign in Malawi, ‘Males aged 14 years and below, seeking MVVC services, are given age-appropriate HIV prevention messages and told to return for VMMC at 15 years.’
Another PSI report notes that, ‘Participants between the ages of 15 – 18, heading a household, were required to obtain parental consent because they are considered minors in Malawi; those who refused were excluded.’
* 'A matter of justice', Legalbrief, 6 December 2022