Application of laws perpetuate gender-based violence in Malawi

Inconsistent application of laws and the reluctance of courts to hand out maximum sentences seems to be sending a message that gender based violence is not a serious issue to contend with in Malawi. Such actions by the courts undoubtedly contribute to sustaining the problem, as perpetrators think that they can act with impunity, and even if caught, stand a reasonable chance at a minimum sentence. During the commemoration fo 16 Days of Activism, it’s important to reflect not only on laws that are in place, but also how they are being applied, to assess whether they are adequately deterring gender violence.

A case in point is Malawi, which continues to witness horrendous abuses mainly directed at women. And it seems that we are seeing little progress in putting a stop to such abuse. Looking back at the year 2011, there are a few attacks that stand out.

For example, in October of this year, Lekina Ngelo’s husband allegedly hacked her with a machete on the head and arms in Malawi’s capital Lilongwe because she refused to reconcile with him. The Sunday Nation of 30 October reported that the suspect, Muzo Kunfoso, assaulted Ngelo after his three-year campaign to woo her back seemed to have failed. Relatives of Ngelo severely injured Kunfoso in apparent retaliation, and he was hospitalised just like her.

In August, Estere Banda’s husband set fire to her in the central district of Kasungu after she apparently refused to follow him to his home village. However, husband Divason Chonga told the Malawi News Agency that his wife tried to commit suicide after jumping on to a fire and he had rescued her from the inferno.

These two cases this past year of hacking and burning are still in the courts. Yet looking back to legal history could be an indication of why some men feel they can get away with such violence.

Going back to the year 2006, Malawi saw a terrible and unprecedented incident in which a woman had her hands maimed by a jealous husband using a machete in Dowa district. Herbert Mankhwala alleged to have caught his estranged wife Marieta Samuel having sex with another man, and in a fit, hacked her hands, leaving them in such a horrific condition that doctors had no choice but to amputate them.

After a six-month trial, the Lilongwe Magistrate Court sentenced Mankhwala to 14 years in prison with hard labour. During the proceedings, the defense lawyer Felix Tambulasi claimed that at 33 Mankhwala was not “old enough” to face the maximum sentence of life in prison. He added, “since he is only 33 years of age, putting him in custody for a long time will make him unproductive to the country’s development.”

The then Director of Public Prosecutions Ishmael Wadi had called for a life sentence in the case, arguing that: “Giving a case like this a maximum sentence of life imprisonment shows that Parliament had considered the offence to be a very serious one.”

The fact that Senior Resident Magistrate Vikochi Ndovi gave Mankhwala 14 years indicates that the convict received a relatively light sentence. The Nation of 16 August 2006 quoted Magistrate Ndovi as describing the attack as “the worst of such types of crimes so far.” If Ndovi regarded the assault in those terms, the sentence should have been equally harsh and record setting.
Indeed in a television documentary over the incident, the maimed woman Marieta Samuel complained that Mankhwala would be out of jail after some time, but her life had drastically changed to one of permanent dependency.

If sentences were more severe, it is possible that incidents of serious assault on women would be reduced and the more recent cases of the burning of the woman in Kasungu and that of hacking in Lilongwe may not have happened. Men likely realise that grievous injury to a woman would not attract a harsh punishment.

As another example, in June, a 36-year-old HIV positive man defiled seven young girls in a row in Lilongwe. The culprit had unlawful carnal knowledge of the youngsters, aged between 5 and 11 years. The horrendous act took place as the children were going to play. The man Paulo Bingala took the girls to his house where he threatened to kill them if they shouted for help. He proceeded to defile all seven of them. One parent noticed her daughter was walking awkwardly several days after the defilement, which led to the discovery of the crime and subsequent arrest of Bingala on 13 July.

The High Court in Lilongwe charged Bingala with defilement, an offence that carries with it the maximum sentence of life imprisonment. On 3 August, the court sentenced Bingala to 21 years imprisonment for each of the seven counts of defilement, to be served concurrently. Taking into account the number of girls involved, their tender age, that some were diagnosed with a gonorrhoea infection and the looming threat of HIV, if this does not warrant a maximum sentence, what does?

The way courts apply the law against crimes such as rape, defilement and wife battery leaves a lot to be desired. To illustrate this point further, while domestic violence is supposed to attract a sentence of 14 years imprisonment, the 2010 Human Rights Report on Malawi compiled by the American State Department says “police do not normally intervene in domestic disputes.”

There are more examples of offenders getting off rather lightly, and courts making very different sentencing choices. In October, the Nation reported that the Ntchisi Magistrate’s Court sentenced a 29-year-old man to 10 years imprisonment after being convicted of defiling two girls aged 11 and 12. In the same month, the Nation also reported that a 42-year old head-teacher in Ntcheu was jailed for 13 years for defiling his six-year-old niece. How is it that someone receives a lesser sentence for defiling two girls, than the man who defiled one?

It is little wonder then that violence against women continues unabated because the law is being applied in a manner that does not scare perpetrators of such malpractices. The authorities in Malawi are trying to protect youngsters including the girl-child. In 2010 parliament passed the Child Care Protection and Justice Act intended to safeguard children from harmful issues such as trafficking, forced marriages or betrothal. But the Act is proving to be toothless as children continue to face abuses such as defilement and being married off at a tender age.

If the law was applied in a manner that was decisive and firm, such as imposing the maximum life sentences for domestic violence or defilement, would-be offenders could possibly take notice and think twice before perpetrating such acts. But as it stands the sentences being imposed are not deterrent and matching the seriousness of offences such as infecting a five-year old child with gonorrhoea, and possibly HIV.

However, this ought to change. The judges and magistrates must reconsider the sentences they impose so as to deter future life-changing attacks on women. The 16 Days of Activism present a chance for those in the judiciary to reflect on this issue. The period is also an opportunity for lobby groups to push for changes in administration of justice in the sub-region so that women are better protected.

Joe Mlenga writes from Malawi. This story is part of the I Stories series produced by the Gender Links Opinion and Commentary Service for the Sixteen Days of Activism on Gender Violence.