A 19-year-old boy in Mzuzu who claimed to have been a victim of anual sex rape by the Centre for the Development of People (Cedep) assistant project officer Ishmael Makhuludzo, was actually in an affair with the suspect according to an investigation report compiled by Malawi Police as seen by Nyasa Times.
In it, the report explains that the two have been in a relationship since 2012.
During that time, Ishmael had been paying for the school fees for the boy and mentoring him to pursue university, in particular the elite Chancellor College where Ishmael himself is an alumni.
The teenager, who sat for Malawi School Certificate of Education (MSCE) examinations at Katoto Secondary School this year, said Makhuludzo, a graduate of the University of Malawi’s Chancellor College, always offered him brotherly advice on how to succeed in school.
The boy recently told The Nation newspaper that he was “raped” the day he was stone drunk and slept at his him.
“I woke up from the blackout only to discover he had had sex with me. There was pain and wetness in my anus,” claimed the teenager.
According to the report, the mother knew about the special relationship the boy had with Makhuludzo but all she was worried about was the huge age disparity between them.
“But not wanting my son to be dragged into rogue lifestyle, I phoned him [the man] three months ago to find out what he was up to with the small boy and he assured me that he was looking after him like his younger brother,” the mother of the alleged victim whose husband died in 2007, was quoted as saying.
According to the investigation report, the two had an underground same-sex relationship then suddenly, Makhuludzi withdrew the support which frustrated the boy.
They argued about this and Ishmael was blackmailed. Whilst this was going on, somehow, some people found out. They were reported to the police and soon arrested for practising sodomy in May 2014, but were later released, apparently following “orders from above”.
Feeling humiliated, the boy and his family concocted a story that he was “raped” and Makhuludzi was re-arrested.
He pleaded not guilty to sodomy, a felony according to Section 156 of the Penal Code, which Mzuzu second grade resident magistrate Austin Banda defined as “having carnal knowledge of the boy against the order of nature.”
This section prohibits the practice of homosexuality and was previously suspended following a moratorium instituted by the previous Joyce Banda administration.
In July this year, the Malawi government led by Janet Banda, the Solicitor General, told the UNHRC in Geneva that the moratorium was still in place.
Notwithstanding that the boy alleges there was no consent, the fact that the CEDEP official has been charged with section 156 suggests that this provision has been lifted.
“Now, there is a lacuna here. Rape under common law has been defined as vaginal penetration without consent. In simple language, the law does not accept that it is possible for man to rape another man. Since Ishmael and the ‘victim’ are both men, it is not legally possible to call what happened rape,” argued one legal expert.
“And the lacuna is thus: if a moratorium on section 156 is placed, then common law (judge made law) has to change the definition of rape so it is possible encompass same sex liaisons. Until this takes place, section 156 has had to been applied since rape laws cannot be applied.”
Some studies show same-sex practices are part of Malawian culture as local names such as mathanyula (anal sex) confirm that homosexuality is indeed traditional and indigenous, contrary to popular assertions that the practice comes from the west.
In Malawi, homosexuality was particularly common among migrant Malawian workers in South Africa and Rhodesia. It was not encouraged, but those who practised it were not persecuted either. It is only recently that intolerance and negative attitudes towards homosexuals have emerged.
The international community has been condemning Malawi for criminalising same sex relationships and the first couple to come in the open, Tiwonge Chimbalanga and Steven Monjeza, were arrested and sentenced to 14 years imprisonment.
The two were rescued by the United Nations Secretary General Ban Ki-moon who visited Malawi and announced to Parliament that the former president, the late Bingu wa Mutharika, had pardoned the two convicts.
Recently the High Court in Blantyre on Monday granted bail to sodomy suspect, Stanley Kanthunkako, after he spent over five months in prison without trial.Follow and Subscribe Nyasa TV :