YAS and Oxfam Malawi write Chief Justice over sentence disparity in sexual offenses
Two Non-governmental organisations, Youth and Society (YAS) and Oxfam Malawi, have written the office of the Chief Justice, expressing their concerns over what they call “imposition of lenient sentences” by the lower courts in sentencing sexual offenses.
They say these “huge discrepancies” in sentencing sexual offences undermine the “bar” the High Court raised in sentences imposed in such cases.
YAS and Oxfam Malawi have since asked the office of the chief justice to formulate “sentencing guidelines” for subordinate courts in sexual offences.
The sentiments are in a letter to the chief justice, dated 12 March 2020, which has been made available to Nyasa Times.
It is signed by YAS executive director Charles Kajoloweka and Country Director for Oxfam Malawi, Lingalileni Mihowa.
The sentiments come in view of the alarming rise in cases of sexual violence in the country.
“For the past few years, the country has witnessed a surge of cases of sexual violence against children and in some cases, the victims are babies. This has resulted in public outcry for stiffer penalties for perpetrators of such offences.
“However, practice has shown that there are huge discrepancies in sentencing in such sexual offences. Despite the High Court raising the bar in sentences imposed in such cases, some lower courts impose lenient sentences that do not reflect the gravity of the offences as envisaged in the Penal Code,” the letter reads in part.
It cites the November 2020 judgement of the High Court in Mzuzu in which a man was sentenced to 58 years imprisonment for defiling three children.
“Although the High Court in the Mzuzu case set the bar high enough, in a case reported on Nyasa Times on 15 January, 2021, a Magistrate’s Court in Machinga sentenced a 45-year-old man to only 8 years imprisonment for defiling a 13-year-old child. This sentence does not reflect the gravity of the offence of defilement and the impact the offence has on the child,” the letter goes on.
It adds: “We are fully aware of the discretion that our courts have when it comes to sentencing. However, such discretion should reflect the intention of the framers of the law when they put life imprisonment as a maximum penalty for sexual offences”.
It further cites the recent judgment by Honourable Justice Kapindu in the case of Maliko Fabiano v The Republic, Criminal Appeal Cause No.13 of 2020 ( High Court, Zomba District Registry), saying the judgement gives proper guidance in terms of the impact of sexual violence on children.
“The Court in that case, enhanced a sentence of 14 years to 30 years, when a 43-year-old man, defiled a girl of 10 years. His plea of guilty was not sufficient to mitigate his sentence. The benchmark set by Justice Kapindu, calls for proper sentencing guidelines in sexual offences. This shall ensure that the lower courts are properly guided when exercising their discretion in such cases”.
In the letter, YAS and Oxfam Malawi have then appealed to the office of the chief justice to exercise its powers in terms of sections 59 and 67 of the Courts Act to formulate sentencing guidelines for subordinate courts in sexual offences.
“The Guidelines shall not only help in creating certainty in sexual offences but will also act as a deterrent to would-be offenders. We acknowledge the judicial activism that has grown over the years to fight against various injustices in our country and we believe that in the same spirit, your office will take its role in the fight against sexual abuses and violence in Malawi by formulating the sentencing guidelines,” the letter concludes.
The judiciary was not immediately available to comment on the letter.
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A 30 year sentence for a guilty plea is not enough? When the courts write the laws in English, a language 85% of the population can’t read, you have to ask how many people know what sexual assault of a minor even is. Money is better spent on preventing these things through education than by ridiculously huge punitive sentences. But then, there’s a war against males in the world today where just having a penis condemns you.