Much about Eric Aniva’s story, published in 2016, would have appalled listeners. The then 40-year-old said that he had had sex with more than 100 girls and women, that he was paid to do so by members of their communities in southern Malawi, and that this was a culturally sanctioned form of ritual sexual cleansing. He also said that though he was HIV-positive, he didn’t disclose his HIV status before having sex, and that culturally, he was not allowed to use condoms. Some of the girls with whom he had sex were as young as nine.
Outraged reaction followed, from women’s rights groups and human rights activists among others. He was arrested in the midst of the uproar, on the instruction of the then president, Peter Mutharika, who said action had to be taken for what he termed these ‘evil acts’.
In November 2016, Aniva was sentenced to an effective two years with hard labour, a punishment that proved divisive. Many protested that it was far too short, given the number of women who must have been infected by him. Others, however, said the conviction and sentence violated their culture and that (the practice) would continue, even though it conflicted with Malawi’s formal law.
Having served his sentence, Aniva was released on December 2017. Though he had filed an appeal, it was never argued because he was freed before it could be heard.
But the subject is far from closed, and some serious questions are now being asked about whether Aniva had a fair trial. The questions come from Malawian law professor Mwiza Jo Nkhata. He works as a principal law officer for the African Court on Human and Peoples’ Rights, but the article on Aniva is written in his capacity as an honorary professor at the University of Pretoria.
Nkhata begins with a discussion of the cultural practices that Aniva was involved in and distinguishes between two: one relating to the ‘cleansing’ of pubescent girls and the other to the ‘cleansing’ of widows and widowers.
He makes the point that while much of the public focus has been on Aniva being hired to have sex with children, he was actually tried and convicted for the ‘cleansing’ of widows. He also explains that the custom is far more complex than simply having sex and that a ‘hyena’ may be either male or female, depending on whether the remaining spouse is a widow or a widower.
Aniva was charged with two offences, engaging in a harmful practice and attempting to engage in a harmful practice. He denied both charges, and opted not to testify.
Although the law provides for a fine, the magistrate said that a fine or a suspended sentence ‘would be a mockery’ and he was given a custodial sentence despite being a first-time offender, something that would usually have led to a lighter, non-custodial sentence. The court also referred to the law under which Aniva was charged as being an offshoot of Malawi’s international obligations, given the various treaties to which it is a party.
Nkhata argues that the trial could have been an opportunity to explore whether the cultural practices involved were constitutional. If the court had decided that the case ‘expressly and substantively’ dealt with the constitution, the matter should have been referred to the chief justice, who could then have decided that the high court should sit as a constitutional court to resolve the question. But there was no such referral by the magistrate, and so one can conclude that he didn’t believe constitutional issues were involved.
Though the charges seem to indicate that the constitutional validity of the cultural practices in which Aniva were involved was central to the matter, the magistrate’s judgment makes no reference to the right to the culture.
And while the magistrate found that people’s dignity was violated by the cultural practices involved, he didn’t refer to the constitutional right to dignity.
Given the pressure on Malawi in relation to its international obligations, Nkhatha says it is arguable that Aniva’s trial and conviction were simply meant to ‘assuage the demands of international human rights and portray Malawi as a human rights-compliant country’, and he finds other indicators to show that ‘it was, largely, the international exposure that landed Aniva in trouble.’
And why was it, Nkhatha asks, that if there were more than 100 ‘victims’, there were only six witnesses, just one of whom testified that she had sexual intercourse with Aniva as part of widow-cleansing customs. The absence of victim-witnesses is ‘baffling’, he says. But it could be attributed to the ‘question of communal complicity in criminal conduct’.
‘Widow cleansing’ would involve several members of a community: the local headman, his committee and relatives of the deceased all discuss the matter and agree on the arrangements like identifying the ‘hyena’ to be approached, and when the ‘cleansing’ must be carried out.
According to the law, all of these would be involved in encouraging ‘a harmful practice’ and could be charged. But the court’s conclusion seems to suggest that Aniva single-handedly organised everything himself – something that is ‘simply impossible’, says Nkhatha.
Another BBC report noted that when Malawi’s president ordered Aniva’s arrest, he wanted Aniva tried for ‘defiling young girls, but no girls came forward to testify against him.’
The ‘absence of witnesses is telling,’ says Nkhatha, who suggests it may be the result of ‘communal complicity’ in the cultural practice for which Aniva was tried. ‘Given that Aniva was the only person who was charged and convicted, he can be said to have been treated as the proverbial sacrificial lamb on behalf of his community, if not the nation’.
And what of the role of media coverage? The trial generated huge public interest locally and internationally, and Nkhatha asks whether it led to Aniva being tried and convicted by the media even before the court reached its conclusion.
His arrest was ordered by the president, a rare occurrence, and Nkhatha speculates that this widely publicised intervention ‘may have created an expectation that a conviction was expected.’ The magistrate was surely aware that the case had caused great media attention and ‘legal realism … suggests that to assume neutrality on the part of the magistrate in such a context would be naïve.’
He says all the factors he highlights point, persuasively, to the fact that the magistrate may have been tacitly influenced by media coverage to ensure Aniva’s conviction. This was despite the significant weaknesses in the state’s case, for example, because of its failure to produce key witnesses.
These weaknesses were not canvassed in the court’s judgment and suggest ‘an unbalanced assessment of the relative strengths and weaknesses of the case for the prosecution and defence.’
Nkhatha points to several other factors that should lead to serious questions about the fairness of the trial.
Even Aniva’s abortive appeal becomes a significant piece of the puzzle: given the serious questions raised in the Nkhatha’s article, there would have been a ‘realistic chance’ that the conviction could have been overturned on appeal to the higher courts. But he ended up serving his whole sentence before the appeal could be heard.
Nkhatha says while this could have been the result of work pressures on an under-resourced high court bench, it was also ‘not far-fetched to imagine that the failure to hear the appeal could have been an evasive tactic to avoid the possible public backlash in case an acquittal became necessary.’
He believes a strong case could be made that Aniva’s conviction wasn’t supported by the evidence produced in court, and that in turn makes it plausible ‘that extra-legal factors’ motivated the conviction.
Malawi had been under pressure to show it was complying with the duties associated with being a signatory to international human rights instruments, and when the BBC story gained global publicity, it became essential that Malawi should show its ability to act decisively to deal with practices perceived to be inimical to human rights.
However, Nkhatha concludes, there is a forgotten dimension: ‘international human rights law also protects the right to a fair trial for all accused persons, irrespective of the charges that they are facing.’