By Silvia Neagu
While I’ve spent a substantial portion of my time so far doing legal research at the university, I also attended court to watch the proceedings of defilement cases. The difference between the Canadian justice system and the Malawian system was shocking at first.
Firstly, the magistrate met with us in his chambers before the hearing, discussed the case openly and made no effort to at least appear impartial. He commented that “you can tell a guilty conscience” because the defendant was not asking a lot of questions. During the proceedings, you could hear the magistrate’s phone vibrating and he also once interrupted a sentencing (before revealing the sentence) to have a 5-minute phone conversation. During the same sentencing, the magistrate wanted to make a point of how lenient he was being, so he passed around bits of paper to everyone in the room and asked us to write down what we thought the sentence should be. Although Alison and I tried to say everything to get out of it, he insisted we take part in the exercise and assured us this would not change the sentence.
The most shocking fact was that the accused was unrepresented and was expected to lead his own defence, despite a lack of basic education. The defendant’s questions to the prosecution’s witness were completely off-target and made the whole process feel like watching a train wreck in slow motion. Because the accused leads his own defence, this also means that he or she is expected to cross-examine the victim when he/she testifies, which is understandably hugely traumatizing for victims. However, in this particular case, the three-year old victim had testified at an earlier date and the accused had not asked any questions. The defendant’s complete lack of understanding of the justice system also meant that the magistrate further compromised his appearance of impartiality. At one point the magistrate was suggesting possible issues that the defendant could raise.
Our meeting with the magistrate and some police prosecutors was also revealing of some of the subversive attitudes towards sexual assault victims and women in general. When discussing the issue of consent, the magistrate explained that they would expect a woman to show evidence of her lack of consent, depending on the relative sizes of the accused and the victim. To illustrate this point, the magistrate then began suggesting that I, for example, would not necessarily be able to accuse one of the thinner police officers in the room of assault. When I looked incredulously at him, he then took the female prosecutor in the room as an example and someone joked about her “huge” size. The magistrate and some of the prosecutors’ attitudes toward victims of defilement also varied with the victim’s age: the older the victim, the less sympathetic they appeared to be.
When discussing the case that day, everyone repeatedly praised how clever the 3-year old victim was and what a shame it was that we had not been present during her testimony. The magistrate and police repeatedly offered to have us meet the girl, which we declined, explaining that we did not wish to trouble her further, even more so because she did not speak English. Despite our refusal, the next time Alison and I were in court, they brought the victim to meet us. It was very awkward and extremely uncomfortable to watch the magistrate question the victim for our benefit – and it was frustrating to realize that there was nothing we could do to stop it. The child was confused as to why two “azungus” (term for white people/foreigners) were there and apparently thought we were adopting her. When we told this story to our director, Fiona Sampson, she commented that this was an “objectification of the victim”, which is a fitting description.
Another issue that was troubling us was the influence of our physical presence in the court room. When we tried to sit at the back of the court, the magistrate immediately motioned for us to come to the front. In fact, when the magistrate was reading out his judgement at the end of the trial, his judgment included a reference to “our guests from abroad.”
On another occasion, we had informed the prosecutor the particular day that we would be attending court. When we arrived, a clerk told us that the cases were cancelled that day because the President was in Zomba and all the police officers and vehicles were therefore busy. As we walked back to our hostel, we ran into the police prosecutors on the road, who were bringing the accused to the court house specifically because they knew we would be there that day. So Alison and I walked with three accused, two police officers (and the dog from our hostel that was following us around) back to the court house. We were quite the sight !