Magistrate stages obscene event as part of rape case; high court orders a retrial

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When the parent of a girl who alleged she had been raped by 22-year-old Yusuf Willy went to the high court in Malawi to complain about what had happened in the magistrate’s court trial, it prompted a high court review of events at the earlier hearing.

Judge Zione Ntaba examined the file on the matter, and what she found makes for alarming reading.

On 30 July, 2021, the state concluded its case and the magistrate held there was a case for the accused to answer. When the case for the defence began, it was adjourned for a few days.

Erection

At this point Judge Ntaba indicates a note on the events of the lower court to the effect ‘that it would like to find means to see if [the accused] can have an erection.’ The chronology (which isn’t always clear) continues: ‘Foses, a woman, stands up in court to volunteer try to jerk off the accused to see if he can have an erection.’

A week later, the defence case starts up again, and, says the note: ‘the accused raised the inability to have an erection. And asks that girl who volunteered to show the court his problem by trying to get him erect.’

Five days later, there’s this note, ‘Magistrate, prosecutor, court interpreter, accused, girl and Foses, supposedly in chambers and girl present plays with accused’s genitals to jerk him off for more than 30 minutes. Observation by court is that the penis got a bit hard, but not very hard.’

The case was then adjourned for five days for judgment.

Victimisation

Judge Ntaba writes that the complaint made to the court by the child’s parent included this: that during this process supposedly aimed at establishing whether the accused had the ‘ability to become hard and therefore perform sex’ occurred in the presence of CH, the girl who had brought the rape complaint against the accused.

Among the issues raised for the judge to consider were whether there had been secondary victimisation or ‘re-victimisation’ of the survivor in these events.

Something like this would be ‘very unfortunate and highly illegal,’ she said and added that the court had taken pains to understand ‘what could have prompted the magistrate to take this [route] of allowing such a gross display to occur in his court.’

‘Illegal show’

She was further surprised to see how the issue of ‘this illegal show’ seemed to have been introduced ‘out of the blue’. After carefully checking the record, she concluded that it was raised by the magistrate. This in turn made her conclude that there had been ‘extra-judicial discussions’ outside court, in the absence of the prosecutor and the public.

It was possible that the magistrate and the accused had ‘colluded and decided to circumvent the course of justice by putting forward this lewd act and equating the same to evidence in a criminal matter.’ The court could also conclude that the magistrate had ‘an underlying bias’, in that he didn’t believe the victim’s testimony because of the existence of ‘some underlying stereotypes.’

Such stereotypes had a negative impact on justice, said the judge, and the rest of her review judgment is focused on exploding such stereotypes and restating how a court ought to approach a criminal case in which a victim/survivor gives evidence.

Condescension

Gender stereotypes harmed a sexual offences victim, and also contributed to further violation of their rights, the judge said, quoting the Bangalore principles of judicial conduct, as well as other key international documents, to illustrate what was required by a judicial officer.

Presiding officers had to help ensure that the court offered equal access to men and women. This affected a judge’s own relationships with parties, lawyers and court staff, and a judicial officer had to be aware of the negative results of using terms of condescension in addressing female lawyers and female litigants.

In the case under review, the complaining party was concerned about judicial bias as well as possible corruption or collusion with the accused. Their assumption about collusion ‘was made due to the fact that there was nothing on record [to show] how this defence of erectile dysfunction was raised’ and their only conclusion was that the accused and the magistrate had spoken outside the court room.

‘Gross’

Culling from a number of resources on judicial behaviour, she said that a judge’s professional competence should be clear from the way they carried out their duties and that a judge was responsible for the efficient administration of justice in his or her court.

Women victims and survivors should be able to rely on a judicial system that was free of myths and stereotypes. While it was only recently that Malawi had removed the long-standing rule of corroboration in sexual offences, the judiciary could not condone the perpetuation of ‘structural gender-based violence, where courts instill fear in women and girls who are victims of sexual offences, using the criminal justice system.’

She said she had tried to understand the conduct of the magistrate, given that the criminal justice system in Malawi had safeguards for the introduction of a defence, including bringing of evidence that was scientific or medical. ‘There was no need for the magistrate to come to the aid of the accused … and in any case, a demonstration was uncalled for’. It was ‘gross’ and inappropriate.

Traumatised

Having discussed a wide range of authorities on the need to end sexual stereotypes and gender-based assumptions by courts, as well as the central demand that courts be conducted in a way that ensured the dignity of all who appeared in them, Judge Ntaba concluded that both the accused and the victim expected the court to be independent and impartial.

Malawi’s constitution highlighted in some detail the rights of the accused, and it was important that protection was given to victims as well, she stressed. She also quoted an earlier decision to the effect that the law does not allow a survivor to be traumatised many times over, ‘or be compelled by the circumstances to accept and condone behaviour [that] is a serious offence.’

Blatant bias

What was she to do about the case under review?

The judge declared that the proceedings in the trial court had included ‘procedural irregularities’ that included ‘blatant bias’ and her finding was that the matter could not continue before the same magistrate.

‘Undoubtedly, this court holds that there were non-judicial factors that influenced the conduct of the magistrate. This court cannot find as a fact that those facts are attributed to corruption, familial relations or friendship, but what it finds is that there were some bias elements noted in his conduct.’

Counselling

She therefore ordered that the trial begin again, under a different magistrate and that it should start immediately. The judge also ordered that the complainant and her family should be provided with the resources needed to ensure her attendance at court. ‘Further, that counselling services be provided’ for the complainant, for as long as the counsellor said was necessary.

The magistrate’s conduct in the abortive trial, and the wider question of gender bias among presiding officers, were referred to the Judicial Service Commission (JSC). Finally, the judge said that it was critically important for the judiciary to review the practice directions on sexual offences, via the JSC or the office of the chief justice.

The CJ, through the judiciary’s training committee, should develop training programmes to avoid ‘this situation’ in the future, she said. This was particularly needed in matters that could involve gender stereotypes, evidence in sexual offices, and the safeguarding victims from revictimisation.

* A matter of justice, Legalbrief, 25 January 2023