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A new judgement from Malawi shows a worrying feature of that country’s legal provisions around forced sex.

The case on review before the judge, Mzonde Mvula, concerns a 19-year-old charged with raping his grandmother, aged 89. He was prosecuted for rape under section 133 of the country’s penal code and, after he was convicted by the magistrate’s court, the presiding magistrate forwarded the file to the chief resident magistrate to be sent on to the high court for sentencing.

That’s when things got more complicated. The chief resident magistrate spotted that the man should have been charged with incest, and not rape, because of the close family relationship between the accused and the woman he raped.

Several irregularities

The judge who reviewed the case makes some biting comments about the magistrate and the prosecutor and their handling of the matter before and during the trial.

But he first goes to some lengths to explain the process of review that would allow the high court to re-examine decisions and processes of subordinate courts. Then he details how, when he carried out this re-examination, he found there were several irregularities in the case.

Not only had the prosecuting authorities failed to notice that the relationship between the parties meant the accused should have been charged with incest, but the penal code stipulates another fundamental - and it wasn't observed either. Section 160 of the code says that, in a case of alleged incest, whether committed by a male or a female, the permission of the director of public prosecutions must first be obtained before a prosecution can go ahead.

In this case, however, the director of public prosecutions wasn’t approached for prior authorisation to prosecute.

The judge writes that the prosecution ‘understandably’ based the charge sheet ‘on the mere fact that the offender had [unlawful] carnal knowledge without her consent’, something that would ground a charge of rape.

Closely related by blood

However, the investigation team ‘let a very important observation slip through their grasp’, namely that ‘the pair’ are closely related by blood. This relationship changed things and the charge, instead of rape in terms of section 133 of the penal code, should have been brought as incest under section 157.

‘The magistrate who tried the case should have had eyes wide open and [picked] up this fact, to send the charge sheet back at least the moment the complainant entered court … to give evidence. She was 89 years old and raped by her 19-year-old grandchild who alleges he was drunk at the material time.’

‘The age gap between the pair’ and other circumstances of the offence should have alerted the trial magistrate, said the judge. ‘Magistrates should always be curious of the facts before them, being the managers of the evidence they gather. Cases should never be routinely tried.’

'Fallen in deep slumber'

He also underlined the provision that, in cases of sexual assault involving close family members, the DPP had to give consent for the case to be prosecuted.

‘This would have happened had the trial magistrate not fallen in deep slumber the moment evidence of the complainant was being recorded.’

The DPP ‘retains discretion to allow certain matters from proceeding in open court,’ the judge said. ‘The consent is sought, in writing, just as it must be granted in writing.’ And any trial allegedly involving incest that goes ahead ‘without such written consent is null and void.’

Prosecuting on ‘mere whimsies’

The judge added that ‘legal policy considerations precede mere whimsies to prosecute’ and that ‘the intention of parliament must strictly become applicable’.

He therefore sent the matter back to the magistrate’s court to start from scratch, writing, ‘The magistrate who took the evidence should now open their eyes and draft a charge sheet on the offence under [the incest provisions of the penal code] as reminder that close blood ties sexual acts are incestuous, not generic sexual offences’.

He ordered that leave to prosecute should then be asked from the DPP ‘as a matter of legal policy’. If that permission is granted, the trial should go ahead under another magistrate of the court, though the previous magistrate would be entitled to deal with any bail applications that might arise.

Judgment not redacted

On the law, the judge is surely correct – though in an earlier decision another Malawian judge, Patrick Chirwa, took a slightly different view on the question of the DPP’s permission where the person raped was under 16.

But in the current matter, the judge overlooked the fact that the accused was named. His village and its location were also mentioned. Since the complainant was a close relative, she could well be identified from this information alone.

Even more fundamentally, the case highlights features of Malawi’s penal code that should cause some alarm.

Why the discrepancy in sentence between incest and rape?

Why does the Malawian penal code create such an enormous discrepancy between the sentence to be passed when the rapist in an incest case violates someone under 16 and someone over 16?

The code states that ‘any male person who has carnal knowledge of a female person, who is to his knowledge his grand-daughter, daughter, sister, mother or grandmother, shall be guilty of a felony and shall be liable to imprisonment for five years’.

If the ‘female person’ is under 16, however, the ‘offender shall be liable to imprisonment for life’.

And compare the five year sentence for incest with the provisions of section 133 of the penal code: ‘Any person who commits the offence of rape shall be liable to be punished with … imprisonment for life.’ Likewise, anyone who ‘attempts to commit rape shall be guilty of a felony and liable to imprisonment for life.’

All this means that, should the DPP authorise prosecution, and the accused in this case is re-tried, this time charged with incest, then the maximum sentence that may be imposed on the 19-year-old accused for raping his 89-year-old-grandmother, is five years. However, if he had raped any other, unrelated, 89-year-old person, he would be liable to life imprisonment.

It is hard to imagine how this discrepancy has been allowed to remain on Malawi’s statute books, apparently without any outcry in that country.

Similar anomaly in Kenya

There is a similar anomaly in Kenya, raised in 2019 by Kenyan judge William Musyoka. In that case, an uncle raped his nine-year-old niece and there was confusion about the section under which he was charged. Under section 8 of Kenya’s Sexual Offences Act (SOA), he was initially charged with ‘defilement’ – rape of a child. However, this charge was changed during the trial to another section that deals with incest.

Section 8 of Kenya's SOA provides that, in a case of defilement of a child who is 11 years old or younger, the perpetrator ‘shall, upon conviction, be sentenced to imprisonment for life’.

But in the case of an incestuous rape, dealt with by section 20, the perpetrator is liable to imprisonment ‘for a term of not less than 10 years’.

The judge commented on this: ‘I do not understand why there should be that distinction or discrimination’.

Is rape, sexual assault by family members treated too lightly by the law?

It seems that the law in Kenya has not changed since then, while Malawi’s penal code will permit the extraordinary anomaly that will almost inevitably result in the case of the raped grandmother. If the prosecution is allowed to proceed and is successful, the maximum sentence that may be imposed will be just five years.

Recent protests have shown that women in both countries are deeply concerned about the high levels of violence against women and girls and the failure to bring those responsible to justice. But this must be seen against the background of studies that show few perpetrators of rape and sexual assault are strangers to their victim. Almost a quarter are assaulted by a family member and more than 40% by someone known to the victim.

Changing the law on incest-rape sentencing would surely be a way to reflect this reality and ensure that rape by family members isn’t treated so lightly by the law. Lobbyists in both countries, opposed to violence against women, could well take up the challenge to see that the law is changed.