Justice for Msundwe

The High Court has ordered the police to compensate 18 women allegedly sexually assaulted by their officers in Lilongwe last October and the arrest of the 17 implicated law enforcers.

The Malawi Police Service, which earlier said it deployed six top-notch investigators to probe the issue but never produced its findings, has also been ordered to investigate the issue and furnish the court with results within 30 days.

Delivering the ruling in the High Court in Lilongwe registry yesterday, Judge Kenyatta Nyirenda further ordered High Court and Malawi Supreme Court of Appeal registrar to assess compensation within 21 days and that the police should bear the legal costs.

The Women Lawyers Association (WLA), which led the 18 women to court to demand justice, has since hailed the victory, saying it sets a precedence that even law enforcers should be held accountable for human rights violations.

Attorney General Chikosa Silungwe has since said government will comply with the ruling.

The case follows the conduct of about 17 police officers who allegedly raped 13 women, defiled one girl and sexually assaulted three under-18 girls during an operation on October 8 2019 at M’bwatalika, Mpingu and Msundwe in Lilongwe.

The operation followed the death of a fellow police officer Usumani Imedi, who was stoned by angry people in Msundwe Township as they protested against then president Peter Mutharika’s planned political rally in the area.

Besides seeking compensation for the women and arrests of the concerned officers, in the Judicial Review Cause Number 7 of 2020, the 18 women also wanted a review of alleged failure by Inspector General (IG) of Police to ensure that officers discharge their duties without violating the law.

They also moved the court to allow a review on the failure by the IG to conduct effective professional investigations into the complaints of sexual assault and rape, among other decisions and actions.

In his ruling, Nyirenda said the applicants were victims of sexual violence and rape, ordering that they should be compensated for the heinous acts allegedly suffered at the hands of law enforcers.

Police IG, Clerk of Parliament and Minister of Finance as first, second and third respondents, respectively, argued that compensation should be pended to allow for a comprehensive investigation into the allegations of sexual violence.

But the applicants argued that a lack of investigation into their assault by police does not preclude them from claiming compensation in a civil suit.

Determined Nyirenda: “I have considered the respective submissions. In the premises, Relief No. 18 [compensation] is granted. In this regard, I direct that the issue of assessment of compensation payable to all the applicants be dealt with by the registrar. This has to be done within 21 days of the date hereof.”

The judge blamed the office of the IG for failing to put in place a credible system of monitoring the conduct of the officers, ordering the IG to report to the court on steps taken to investigate and arrest the perpetrators of sexual violence.

He said the IG should also furnish the court with the occurrence book referred to in Relief No. 14 within 14 days of the ruling.

Added Nyirenda: “As was aptly submitted by the applicants, it is important that the officers of the [police] that sexually assaulted and raped the applicants and all other women and girls in M’bwatalika and Mpingu be arrested and prosecuted.

“I, however, believe that a period of 14 days might not be enough to carry out meaningful investigations. I, therefore, order that this be done within a period of 30 days from the date hereof.”

He also blamed the IG for failing to conduct prompt, proper, effective and professional investigations into the complaints of rape and sexual assault made by the applicants, further blaming that office for failing to arrest the officers.

Nyirenda, therefore, determined that failure by the Clerk of Parliament to operationalise the Independent Complaints Commission (ICC) is unlawful and violates the applicants’ right of access to justice.

WLA president Tadala Chimkwezule said the determination has set a precedence that where there is injustice even by law enforcers, those responsible will be held accountable.

She said: “The effects of this case will be much broader than just in Malawi. We have to come to a place where we respect the rule of law; that its arm is not short, but it’s long. The justice system is not blind and this ruling is very pivotal to the human rights discourse. I am pretty sure that using this case, a lot of human rights cases will be addressed.”

On his part, Silungwe said government will comply with the judge’s determination.

He said briefly: “We will simply comply, and make sure that the Inspector General of Police also complies with the determination of the court.”

Commenting on the ruling on her social media page, Ombudsman Martha Chizuma said: “The High Court judgement ordering for the women and girls raped and defiled by ‘police’ last October is to me one of the greatest rebuke to sexual harassment against women and impunity by some police officers in Malawi. Are we there yet? No. Are we on the right path? Definitely Yes!”

Police failed to act

Early this year, Vice-President Saulos Chilima reported the Msundwe sexual assault matter, among others, to the International Criminal Court (ICC), accusing the then Police IG Duncan Mwapasa of failing to deal with the matter.

The Veep’s action  came after WLA filed an application for a judicial review of the matter at the Lilongwe High Court in January 2020.

It accused the IG, Clerk of Parliament and Minister of Finance of having failed to fulfill their duties in protecting citizens of the country, in particular the women and girls who were reportedly sexually assaulted.

In December 2019, the Malawi Human Rights Commission (MHRC) issued a report in which it said it had established that police officers raped 13 women, defiled one girl and sexually assaulted three under-18 girls during their October 8 2019 operation around the area.

The report stated that police officers committed the incidents as the women fled violent scenes.

Chizuma, as a member of MHRC, said the sexual violations in Lilongwe  and other human rights violations that occurred were serious and sensitive and needed to be handled as such by the commission.

Among others, MHRC recommended that Mwapasa should institute criminal investigations into the matter, targeting police officers deployed at Mpingu and M’bwatalika.