Under-age rape trial in Malawi results in steamy judgment by court

2 July 2021 · Carmel Rickard

A magistrate in Malawi has produced a decision on a statutory rape case that, in part, reads like a racy novel. The magistrate was presiding in the trial of an 18-year-old, charged with ‘defilement’ – the Malawian version of rape when the complainant is underage. At issue was the defence of the accused who said he genuinely thought the girl involved was over 16 – and in dealing with that question, the magistrate rather sensationalised the sexual history of the girl concerned.

Read judgment

This has to be one of the most bizarre judicial decisions I have ever read. The senior Blantyre magistrate who wrote it, Elijah Blackboard Dazilikwize Pachalo Daniels, seems to have believed that if perhaps he wrote his decision in a salacious style, it would add weight to his criticism of Malawi’s youth in general, and in particular of the young woman involved in the matter before him.

Initially I hesitated to quote the opening paragraphs - they are hardly what a reader of court judgments would associate with a formal decision. But, absent the introductory lines, comments on the rest of the judgment would not make sense.

The very first words of the decision are these, ‘They enjoyed the company of each other with no sense of restraint or guilt. When at it; they manifested pleasure and passion for each other’s person. They crafted their own twisted, misguided and untimely sexual drive and amusement. Alas! The accused person was not the first in line neither was he the second, nor perhaps the last. This I cannot say for certainty. He caused his penis [to] penetrate into what I would ordinarily say [was the] immature vagina of the victim in this case. However, young as they both are, … I am unable to use the term ‘immature’ as I am not sure whether that would be a proper word to use in the prevailing circumstances. … Perhaps such precious words of passion must be reserved for appropriate cases.’

Indulgence

Some more along the same lines follows in the next few paragraphs, including a lament for the lost innocence of Malawi’s youth and its impact on broader society: ‘The brutal fact remains: our society is brutally and excruciatingly raped morally, and is left devoid of restraint measures against indulgence of criminal deportment by our young men. It is a sad case and [my] lamentations are as loud as I can passionately fathom. … Perhaps we believed in an illusion that our young men and girls would properly wait for their proper time to enjoy the fruits of their bodily hungriness. But alas! We believe in a myth.’

The magistrate continued, ‘At times it is hard to notice who among the cases are the victims. Without losing sight [of] the need for the protection of a girl child and her legitimate rights under the constitution, in our society it could be argued … that even our young boys are victims of moral decadence. We are a society that throws stones at moral uprightness with ease.’

There is much along similar lines, and it is only in paragraph 5 that a reader discovers the charges faced by the accused and more about who he is: Charles Gondwe, 18, is charged with defilement and he has been in prison, waiting trial, for eight months. Though he pleaded guilty to the charge, his defence is that he did not know the true age of his sexual partner who was 15 at the time.

‘Judicial misguides’

As a regular editor of all kinds of legal documents, I wish I could have had this particular decision to work on before delivery. Take this sentence, written in the context of the duty to advise an accused of the defences that might be available to him, and see if you can make sense of it: ‘This I shall bind on my judicial neck and biblically follow, lest I fall into the penumbra of judicial misguides.’

For his defence to be accepted, the magistrate said, Gondwe would have to satisfy the court that he had the mistaken but reasonable belief that the victim was over 16. As part of his evidence, Gondwe said that several approaches were made to him by the girl’s parents on a possible marriage and during those discussions they did not raise the issue of her age with him.

Even the girl, in her cross examination, said she had told Gondwe that she was 17 ‘at the time she volunteered herself for a sexual pact with [him].’ The court also seems to say that Gondwe cross-examined the girl in court – something generally frowned on, but that the court here makes no comment on. During this cross-examination, the girl said she had had two boyfriends before Gondwe ‘and they both had had carnal knowledge of her.’

Reckless

The magistrate said that the behaviour of the girl in this case was ‘so reckless … that it would … make the accused person believe that indeed she was 17 years old.’ He added, ‘Assuredly! Assuredly! I say, we must only convict deserving offenders where the facts permit.’ Further, the magistrate said he had himself looked at the girl in this case and found that ‘any reasonable person’ like the accused ‘would have acted under the mistaken belief’ that she was not under-age.

This was especially so considering that she sneaked out from her parent’s house to ‘sleep outside at her many boyfriends’ homes where she had had her person carnally known with her unequivocal blessing.’

Custody

The magistrate ruled that the accused had formed a reasonable belief that the girl was over 16. He therefore found Gondwe ‘did not commit the offence’ and ordered that he be released from custody. ‘The young man is a free man as he stands innocent in the face of the law.’

All parties involved in the case were notified of their rights to appeal within 30 days.

It is generally accepted that most people who experience the operation of the law, first-hand, do so at the magistrate’s court level. After this judgment, I am left wondering what this majority, reading the decision, will come to believe about the courts and the law – and their approach to sex.

Carmel Rickard

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