Malawi has seen waves of violent protests since Peter Mutharika, the former President, “won” his second mandate in May 2019 in a now-cancelled vote. The Malawi Congress Party (MCP) sought a delay of the results over allegations of vote-rigging, presenting 147 reports of irregularities. In some cases, there were accusations that ballots had been physically doctored with corrective fluid.
As a result, protests broke out in opposition, including one in which several police officers raped and sexually abused at least 18 girls and women outside Lilongwe. Five of them were under 18. The attacks by police were in apparent retaliation for a political protest that had led to one police officer being killed. Since the attack, the police response has been characterised by complete inaction, with neither investigation nor arrest. It was left to the Malawi’s Women Lawyers Association (WLA) to take action on behalf of the victims. On 13 August 2020, Judge Kenyatta Nyirenda condemned the police, and ordered that the women and girls be compensated for all the pain and trauma they had suffered.
WLA REPORT HUMAN RIGHTS VIOLATIONS
The WLA instituted court action after the Malawi Human Rights Commission (MHRC) – a state-funded institution led by government-appointed commissioners – said it had ascertained that police officers raped 18 women and girls in October.
Malawi’s Ombudsman Martha Chizuma confirmed that the investigation, carried out under the MHRC, uncovered evidence of the rapes. "We found out that a total of 18 women were sexually violated," Chizuma said. "Five of them were under 18. One of the five girls was actually defiled. Eight women were raped. The rest, police found them doing their menses so were just violently beaten."
As a result, in its application, the WLA asked the court to sanction the police. The organisation called on the court to pronounce that the top police officials failed to ensure the police acted lawfully, amounting to “torture, cruel, inhuman and degrading treatment and punishment”, in violation of Art. 2 of the United Nations Convention against Torture (CAT), which Malawi ratified in 1996. The WLA further asked the court to declare that the police who engaged in that rape attacks violated the constitutional right to dignity and freedom from torture (Art.19 of Malawi's Constitution of 1994 with Amendments through 2017) of the girls and women they attacked. Finally, the WLA wanted the assertion that the conduct of the police was unconstitutional and outside their lawful powers.
JUDGE K. NYIRENDA TURNED THE SPOTLIGHT ON THE POLICE
On 13 August 2020, Judge Kenyatta Nyirenda turned the spotlight on the police. He issued a number of declaratory orders spelling out the rights of the girls and women attacked by the police. Finding that compensation was appropriate in this case, flowing from “the state’s responsibility to remedy human rights violations”, he further ordered that the registrar must deal with and assess the amount of compensation to be paid within 21 days. Furthermore, he recognised that there is no credible system to monitor the conduct of the police, that no proper investigation into the complaints made by the 18 had been carried out, and that the police authorities had failed to arrest the perpetrators.
Therefore, the High Court in Lilongwe ordered the arrest of those police officers alongside the compensation pay-outs. “It is important that the officers that sexually assaulted and raped the applicants and all other women and girls be arrested and prosecuted”, High Court judge Kenyatta Nyirenda said in the ruling.
A GROUND-BREAKING SENTENCE
As Amnesty International points out, in recent years the human rights situation in sub-Saharan Africa has been characterised by the violent repression of peaceful protesters and coordinated attacks on political opponents, human rights defenders, and civil society organizations. “Incidents” of gender-based violence against women and girls have been widespread in several countries, including Malawi, and the use of rape by police officers is not unprecedented.
At the same time, the relentless violence against civilians in the context of long-standing conflicts has been compounded by political immobility in resolving these crises. Human rights violations and abuses in conflicts have consistently gone unpunished. The inability to ensure justice and reparation for victims, as well as to ascertain the responsibility of suspected perpetrators, have remained crucial issues. This judgement therefore stands as “one of the greatest rebukes to sexual harassment against women and impunity by some police officers in Malawi”, as affirmed by National Ombudsman Martha Chizuma.
Tadala Chinkwezule, president of the WLA of Malawi, told Focus on Africa what the verdict meant to her; “It is a great satisfaction as a lawyer and as the President of Women Layers. It doesn’t happen every day a case in which the police are finally held accountable: hopefully, the effect of this case will not only be seen in Malawi.” In 2019, for example, in Abuja (Nigeria), women who were arrested during a police raid accused officers of raping them. The police denied the accusations and the matter is currently in court.
Furthermore, the UN resident coordinator in Malawi, Benoit Thiry, said the judgment was ground-breaking in the protection of survivors of sexual violence in Malawi – according to The Times. Further to this judgment, he advocated that “it is now important that national authorities ensure a prompt, effective and impartial investigation” so that everyone suspected of the crimes in this case could be brought to justice and that the girls and women should be provided with the support and assistance that they needed.
Undoubtedly – as Thiry concluded – violence against women is an obstacle “to the achievement of equality, development and peace.”
Giulia is holds a Master's Degree in International Cooperation on Human Rights from the University of Bologna. She has a Bachelor's in Philosophy. Her fields of interest are immigration and refugee law, particularly related to unaccompanied foreign minors. She would love to work at the United Nations in the future.