TO: The Attorney General, Ministry of Justice, P/Bag 15, Lilongwe
CC: The Minister of Justice, Ministry of Justice, P/Bag 15, Lilongwe
CC: The Director of Public Prosecutions, Ministry of Justice, P/Bag 15, Lilongwe
CC: The Chief Justice, P.O. Box 30244, Chichiri, Blantyre 3
CC: The Registrar of the High Court, P.O. Box 30244, Chichiri, Blantyre 3
CC: The Chief Prosecutor, Malawi Police, P.O. Box 305, Lilongwe
CC: The Clerk of Parliament, National Assembly, P/Bag B362, Lilongwe
CC: The Member of Parliament for the area
From: Concerned Citizens
Date: 3 January 2013
PETITION AGAINST JUDGEMENT PASSED IN DOWA MAGISTRATES COURT IN A DEFILEMENT CASE
On 3rd January 2013 it was reported on local radio stations that First Grade Magistrate Titus Banda of Dowa Magistrates Court acquitted fifty year old Burundian Seleman Jonathan who sexually molested a ten year old girl because “the girl said she did not feel pain when she was being molested.” Further, the court said that the hospital report was not conclusive, yet the police from the area say that the report clearly indicated that the girl was defiled.
While acknowledging that the Police in Dowa have appealed the case and the High Court and Director of Public Prosecutions are reviewing the case files, we the undersigned would like to register our concern regarding these kinds of determinations on cases to do with rape in the strongest terms possible. The Nation Newspaper of 31st December reported that there are seven reported cases of rape daily in Malawi and we have no idea just how many go unreported. We are outraged that someone entrusted with interpreting the law as this Magistrate would pass judgement that goes against the very statutes outlined in the Malawi Penal Code.
A cursory interpretation of the Section 138 of the Penal Code by us as laymen shows that the Court did not rule within the guidelines of the law regarding an issue of rape. The Penal Code states:
Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, shall be guilty of the felony termed rape.
Any person who unlawfully and indecently assaults any woman or girl shall be guilty of a felony and shall be liable to imprisonment for fourteen years.
It shall be no defence to a charge for an indecent assault on a girl under the age of sixteen years to prove that she consented to the act of indecency.
Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment for life
The implication of this judgement is that the sexual molestation was a consensual act, yet the Penal Code clearly states that anyone below the age of sixteen cannot make such a decision about sex. The newspaper reported that the girl was given K30 to buy her silence and was also given pain medication and was not able to walk properly, which attests to the violence of the act.
We believe that the principles of the judicial system are intended to provide justice for the offended and punishment and reformation for the offender. In this particular case, the victim did not get an appropriate judgement for such a heinous crime, and we believe this is a miscarriage of justice. With the increase of rape and defilement cases in Malawi, we also believe that such determinations adversely contribute to the belief some habitual sex offenders have that they will get away with it, and indeed many of them do.
The physical, emotional and psychological effects of rape and sexual violation especially with young girls are traumatic, well documented and enduring. Other social and health consequences like stigma and sexually transmitted diseases are also a certainty.
We are outraged and demand from our judicial and police authorities the following:
That the judgement be quashed by a higher authority in the judicial system and the case is retried, with a review on the judgement in light of the Penal Code and re-examination of the facts.. We would like to see that the process is expedited to get justice for this girl
That the judicial authorities take strict action against Magistrates who disregard the law when passing judgement especially in rape cases and that the full extent of the prescribed punishment is applied to offenders to deter others.
That the judicial authorities review the training and equipping of Magistrates so that they demonstrate a good understanding of the laws and use the principles of precedents, statutes, laws and evidence interpretation to ensure fairness, transparency and indeed justice for victims of crimes.
That Police authorities and Government invest in the training of Police Prosecutors to get adequate presentation of facts of such cases to ensure that victims get justice
That the government through judicial authorities takes steps to create a database of sex offenders to deter people from such crimes
That there should be an investigation into this matter to see if there were underhand dealings by any of the concerned parties and appropriate sanctions be taken against any such dealings.