MALAWI LAWS ON SEXUAL AND GBV & ROLES OF POLICE AND PROSECUTORS. Presented by EMMANUEL SOKO (ACP) MscLCM
INSPIRATION OF THE DAY “ Do the difficult things while they are easy and do the great things while they are small. A journey of a thousand miles must begin with a single step” - Lao Tzu
Scope of Presentation Scope of Presentation Sexual Offences according to the penal code part 15 (a) Rape Sec. 132 (b) Defilement Sec.138 (c) Indecent Assault Sec. 137 Domestic Violence Offences basing on the Domestic Violence Act
Scope Cont…. Sex Discrimination basing on Gender Equity Act part II Criminal Procedure and Evidence Code and the Responsibilities of the Police officers and other service providers.
why does the law criminalize rape or defilement and other sexual offences why does the law criminalize rape or defilement and other sexual offences 1. To protect the bodily integrity of women and young girls 2. Offences like incest among adults and unnatural offences are punished with the aim of maintaining the morality of the society.
RAPE RAPE Definition Section 132 of the Penal Code provides: “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representation as to the nature of the act, or in the case of a married woman, by personating her husband, shall be guilty of a felony termed rape.”
Punishment of Rape Punishment of Rape Section 133 of the Penal Code provides that the penalty is death or imprisonment for life. This reflects the society’s disgust for the offence of rape. The punishment for rape, in effect, puts the offence on the same level with offences of murder and treason.
Defilement Defilement Section 138 (1) of the Penal Code make it an offence for a person to unlawfully and carnally know any girl under the age of sixteen. Whilst the offence of rape protects the bodily and sexual integrity of women, the offence of defilement goes further: it seeks to protect young girls from sexual exploitation.
Defilement Cont.. Defilement Cont.. For that matter, the offence of defilement can be committed even if the girl consents to the sexual intercourse.
Indecent Assault Any person who unlawfully and indecently assaults any woman or girl shall be guilty of a felony and shall be liable to imprisonment for 14 years.
PREVENTION OF DOMESTIC VIOLENCE ACT 2006 This act was enacted to make provision for the prevention of domestic violence, for the protection of persons affected by domestic violence and for matters connected therewith.
DOMESTIC VIOLENCE ACT Cont…. Section 35 states that where a court is satisfied by information on oath that a person is in imminent danger of physical injury in the hands of another person in a situation amounting to domestic violence and needs assistance to deal with or prevent the injury a court may issue a warrant authorizing the police officers to enter that premise and help the victim.
DOMESTIC VIOLENCE ACT Cont….. Section 38 sub section 1 of this act states that where an order is in force and a police officer believes on reasonable grounds that a person has committed a breach of the order, the police officer may detain and arrest that person without a warrant for the protection of a prescribed person.
Duties of Police Officers Sec. 34 (1) States that every police officer shall respond to every complaint or report alleging domestic violence whether or not the complainant is the victim.
Duties of Police Officers Cont… Sec. 37 states that where a police officer has entered a premise where domestic violence is happening he shall; (a) give assistance to a person who has suffered injury (b) ensure the welfare and safety of a child dependant or other vulnerable persons who may be in the premises.
Duties of Police Officers Cont… (c) prevent any further breach of the law.
Responsibilities of Service Providers Sec. 43 states that any service provider may upon being aware of an incident of domestic violence or soon thereafter as reasonably practicable render such assistance to the victim of domestic violence as may be required in the circumstances.
GENDER EQUITY ACT PART II (Sex Discrimination) This Act was passed into Law recently. It aims at promoting gender equality, equal integration, influence, empowerment, dignity and opportunities, for men and women in all functions of society, to prohibit and provide redress for sex discrimination, harmful practices and sexual harassment, and promotion of gender equality.
Prohibition of sex discrimination Section 4 (1) (a) of this act states that a person shall not treat another person less favourably than he or she would treat a person of his or her own sex.
Prohibition of Harmful Practices Section 5 (1) states that a person shall not commit, engage in, subject another person to, or encourage the commission of any harmful practices.
Sexual Harassment Section 6 (1) states that a person commits an act of sexual harassment if he or she engages in any form of unwanted verbal, non verbal or physical conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
Workplace Policy for Sexual Harassment Section 7 (1) States that Government shall take active measures to ensure that employers have developed and implementing appropriate policy and procedures aimed at eliminating sexual harassment in workplaces. By ensuring that appropriate disciplinary action shall be taken against perpetrators.
Workplace Policy for Sexual Harassment cont… Non employees subjected to sexual harassment to lodge a complaint with the employer of the perpetrator and Oblige the in charge of the work place to deal with such complaints seriously, Expeditiously, sensitively and ensure confidentiality with all allegations of sexual harassment.
Criminal Procedure and Evidence Code This is found in Chapter 8:01 of the Laws of Malawi. This act provides for the law relating to procedure and evidence in a criminal proceeding and for incidental matters. Victims in this act are mainly treated as witinesses.
Evidence of victims of Sexual Offences Evidence of victims of Sexual Offences Section 71 (A) States that where a victim of sexual offence is to give evidence in any proceeding under this code, the court may, of its own motion, upon application made by a party to the proceedings, or a victim of a sexual offence, make one or more of the following orders;
Evidence of victims of Sexual Offences Cont…. a) that the court close while evidence is being given by the witness in the proceeding. b) that a screen, partition or one way glass be placed to obscure the witness’s view of a party to whom the evidence relates.
Evidence of victims of Sexual Offences Cont… c) that the witness be accompanied by a relative or a friend for the purpose of providing emotional support. d) that the evidence of the witness be given at a place outside the courtroom and transmitted to the courtroom by means of closed circuit television (CCTV)
Evidence of victims of Sexual Offences Cont… Section 215 (3) gives powers to court to intervene if sexual violence victim is being asked scandalous or indecent questions by either the defence or accused persons so that the victim should not be traumitised further.