In Malawi, a magistrate has been called out for “allowing such a gross display to occur in his court” after he permitted a rape suspect to have his genitals fondled in court while the alleged victim watched.
A woman offered to stimulate the man accused of rape in court during the hearing when he sought to demonstrate he cannot get an erection, leading to this “very unfortunate and highly illegal occurrence.”
For permitting this occurrence to happen in his court, Magistrate Philip Chibwana will be required to appear before the Judicial Service Commission of Malawi to answer to a charge of misconduct.
The High Court of Malawi was made aware of the occurrence after the parent of the 17-year-old victim filed a complaint against Chibwana’s behaviour in court.
After receiving the complaint, the situation was investigated further.
According to court documents from the Malawi High Court, Yusuf Willy, 22, was arrested in July 2021 on charges of rape.
After the State determined Willy had something to answer for, a hearing date was established a few days later.
The court decided in August that it wanted to investigate whether or not he could get an erection.
The woman, identified as Foses, “stands up in court to volunteer to try to jerk off the accused to test if he can have an erection”.
“[On] 6 August 2021, the defence’s case commenced and [the] accused raised the inability to have an erection and asked that girl, who volunteered, to show the court his problem by trying to get him erect.
“[11th August 2021] the magistrate, prosecutor, court interpreter, accused, girl and Foses – supposedly in chambers and the girl present – played with [the] accused’s genitals to jerk him off for more than 30 minutes,” Ntaba continued.
The court noted that the defendant’s penis had become firm, but not extremely so. Ntaba claimed the topic of “this illegal show” seems to have been raised out of the blue.
According to him, a thorough reading of the record revealed that Chibwana had brought up the issue, leading the judge to infer that the matter had been discussed “extrajudicially” (i.e., outside of court, away from the presence of the prosecutor and the public).
“This court, noting the above issues, drew several inferences from the magistrate’s conduct. Firstly, that it was possible that the magistrate and accused person colluded and decided to circumvent the course of justice by putting forward this lewd act and equating the same to evidence in a criminal matter.”
“Secondly, this court could conclude that this was because the magistrate had an underlying bias in that he did not believe the victim’s testimony stemming for underlying stereotypes. As a court of law, stereotypes have a negative impact on justice.”
He then added that the magistrate’s intervention was unnecessary; a public display of support for the defendant was also wrong.
Malawi admits that there is still room for improvement, but it is conduct like this that the UN Special Rapporteur notes as having negative impact on the criminal justice system.
The UN Special Rapporteur on the Independence of Judges and Lawyers issued an interim report in 2011 under UN General Assembly Document A/66/289 in which she examined the detrimental effects of stereotyping on the criminal justice system.
Ntaba ruled that the trial should begin before a different magistrate and that the victim should be provided with counseling services.
Chibwana’s behaviour and any other instances of gender bias in the court system were brought to the Judicial Service Commission per his instruction.
“It is also critical that the judiciary, through the commission or the chief justice’s office, review practice direction on sexual offences.
“Furthermore, the chief justice through the training committee, develop training programmes for training of our judicial officers to avoid this situation in the future dealing with gender stereotypes, evidence in sexual offences, safeguarding and re-victimisation, to mention a few.”
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