A REPORT ON INCIDENCES OF ARREST OR IMPRISONMENT OR OTHER FORMS OF PENALISATION OF WOMEN OR PROVIDERS ON CHARGES RELATED TO ABORTION IN MALAWI WITHIN THE

PAST FIVE YEARS

BY: JUSTICE S. A. KALEMBERA

This report has been conducted and this report produced with the assistance of Ipas.

CONTENTS 1.0 INTRODUCTION

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2.0 3.0 4.0 5.0 5.1 5.2 5.3 5.4 6.0 7.0 8.0 9.0 10.0 10.1 10.2 10.3 10.4 11.0

BRIEF HISTORY OF MALAWI MALAWI COURT STRUCTURE PROSECUTING AGENCY OFFENCES AGAINST MORALITY Abortion Infanticide Killing Unborn Child Concealing Birth of a Child RESEARCH METHODOLOGY CHALLENGES OPPORTUNITIES FINDINGS SPECIAL INTEREST CASES Yamikani Kondeya Lestina Mwandira Christina Luhanga and Modester Msukwa Caroline Phiri RECOMMENDATIONS

1.0 INTRODUCTION This is a report on incidences of arrest or imprisonment or other forms of penalization of women or providers on charges related to abortion in Malawi within the past five years, that is, from 2006 to date. The report identifies women or providers currently in prison, regardless of when their prison term started. This report is a result of research conducted in prisons, in newspapers (Exhibit D), courts and the police, through interviews with different officers and collection of data from the institutions and officers concerned. Apart from the government officers, officers or activists from NGOs operating mainly in prisons have also been interviewed. In addition, newspaper reports have also been consulted in relation to these offences. In conducting this research it has become quite clear, as the exhibits attached will show, that although the offence of abortion exists in the laws of Malawi, most women are brought to court on charges of concealing birth, endeavoring to conceal a child as opposed to a charge of abortion. This demonstrates, though, that the circumstances surrounding these preferred offences are akin to the offence of abortion. These offences have fully been discussed in this report. In conducting this research, it has also transpired that there are a milliard of challenges in the criminal justice in Malawi, as regards record keeping. This is so because most of
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the institutions in the criminal justice system, the police, prisons and courts have poor record keeping. Their record keeping is yet to be computerized, as a result, the data found in conducting this research might not necessarily or correctly reflect the true situation on the ground. Suffice to say, the data does show that for the past five years charges of abortion and the kindred offences have been proffered against women throughout Malawi. In order to fully appreciate the situation as regards these offences, this report, among other things, gives a brief history of Malawi, its legal system, specific offences in question as provided by the penal law, the hierarchy of the courts as regards which court has jurisdiction in respect of which offence, and circumstances surrounding selected cases. 2.0 BRIEF HISTORY OF MALAWI The Republic of Malawi was previously known as Nyasaland. In 1891 it was colonized by the British and remained under the British up to 1964 when it gained independence and assumed the name Malawi. It became a Republic on 6 th July 1966. It is a country in southeast Africa, bordered by Zambia to the northwest, Tanzania to the northeast, and Mozambique which surrounds it on the east, south and west. The size of the country is over 118,000km. There are four administrative regions: Northern Region, Central Region, Southern Region and Eastern Region. The Northern Region has six districts: Chitipa, Karonga, Rumphi, Mzimba, Nkhatabay and Likoma. The Central Region has nine districts: Kasungu, Nkhota-kota, Mchinji, Salima, Lilongwe, Dowa, Ntchisi, Dedza and Ntcheu. The Southern Region has nine districts: Neno, Mwanza, Chikhwawa, Nsanje, Blantyre, Chiradzulu, Thyolo, Mulanje and Phalombe. Finally, the Eastern Region has three districts: Zomba, Machinga and Mangochi. Information sourced from the National Statistics Office, based on the 2008 National Census, shows the population of Malawi at 13,102,076. The projected population of the whole country by 2012 is 15,459,594. Regional populations are as follows: Northen Region -1,708,930 and projected population is 1,955,529; Central Region -5,510,195 and projected population is 6,979,130; and the Southern Region (includes the Eastern Region) -5,858,033 and projected population is 6,524,935. The projected population is by 2012. Up to 1994, Malawi was a single-party state under the autocratic rule of Dr Hastings Kamuzu Banda. In 1994 Malawi adopted a multi-party system of government with Bakili Muluzi assuming the presidency. The current president is Mrs. Joyce Banda. With its historical ties with Britain, Malawi adopted the British legal system which is based on common law. Malawi, therefore, has an adversarial as opposed to an inquisitorial legal system. The Malawi legal system thus follows a court structure
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composed of subordinate courts, high court and Supreme Court of appeal. The difference being the jurisdiction of each court, which then determines what matter or case goes to which court. 3.0 MALAWIS COURT STRUCTURE In Malawi the courts fall under the Judiciary a separate branch of government, and the court structure is as follows:
(a) The Supreme Court of Appeal highest appellate court and hears appeals from

the High court and other courts and tribunals as an Act of Parliament may prescribe.1
(b) The High Court with unlimited original jurisdiction to hear and determine any

civil or criminal proceedings under any law.2 (c) Subordinate Courts (i) Magistrate Courts presided over by both professional and lay magistrate.3 (Lay magistrates are those magistrates who are not law graduate, that is, do not have a law degree. They just undergo a specially tailored study program before being employed as lay magistrates). (ii) Industrial Relations Court with original jurisdiction over labour disputes and such other issues relating to employment. 4 There are four different grades of magistrates courts as provided by the Courts Act, namely: (i) (ii) (iii) (iv) (v) Courts of Resident Magistrate Courts of Magistrates of the First Grade Courts of Magistrates of the Second Grade Courts of Magistrates of the Third Grade Courts of Magistrates of the Fourth Grade

The jurisdiction of the Magistrates Courts varies and is principally provided for under the Courts Act.5 Over 90% percent of all offences or crimes are prosecuted in the Magistrate courts. Only criminal offences which attract life imprisonment or death sentences are
1 2 3 4 5

Section 104 of the Constitution. Section 108(1) of the Constitution. Section 110(1) of the Constitution. Section 110(2) of the Constitution. Sections 39-57 of the Courts Act.

prosecuted in the High Court. The criminal jurisdiction of the magistrate courts is only limited to 14 years IHL. No magistrate can impose a sentence of over 14years. The offence of abortion and other akin offences are prosecuted in the Magistrates courts. Infanticide falls under homicide cases and is therefore prosecuted in the High Court. 4.0 PROSECUTING AGENCY The Director of Public Prosecution has exclusive power to institute and undertake criminal proceedings.6However such powers as are vested in the office of DPP may be exercised by the person appointed to that office or such other persons in the public service, acting as his or her subordinates and in accordance with his or her general and specific instructions in accordance with an Act of Parliament. 7 In accordance with this provision and provisions under an Act of Parliament 8police officers, appointed as public prosecutors, exercise delegated authority to prosecute on behalf of the DPP. The police being found countrywide, it generally follows that, with the exception of prosecutions in the High Court, most prosecutions are conducted by police prosecutors. Offences under research are thus prosecuted by these police prosecutors. Each police station countrywide has a station prosecutor who conducts prosecutions within his jurisdiction, the jurisdiction being within his district. The discretion as to what charge is to be proffered against the accused person lies with the prosecutor. It transpired during the research, especially among police prosecutors, that this is not usually the case. Other prosecutors were of the view that the investigator decides what charge to be brought against an accused person, whereas, others were of the view that it is the domain of the prosecutor. Others too were of the view that it is the joint responsibility of the prosecutor and the investigator according to the evidence, facts and the law. It is therefore the responsibility of the prosecutor to guide the investigator as to what evidence is required, on the facts, to prove commission of a particular offence. Where the prosecutor brings charges against someone, and during the trial, the evidence discloses commission of a different offence, an alternative verdict will be reached by the Judge or magistrate in respect of the offence disclosed by the evidence. It is, however, not the responsibility of the court to formulate charges against an accused person. The Constitution guarantees legal representation of any accused person even at the instance of the State.9However, the Department of Legal Aid has insufficient number of Advocates to conduct legal representation across the country. As a result in the majority of criminal proceedings, the accused persons are unrepresented, and the cases under research are no exception. The magistrate is therefore expected to assist the
6 7 8 9

Section 99 (2)(b) of the Constitution. Section 100(1) of the Constitution. Sections 79 and 80 of Criminal Procedure and Evidence Code. Section 42(2)(f)(v) of the Constitution.

unrepresented person conduct his defense, but due to an overload of cases this is usually not possible. 5.0 OFFENCES AGAINST MORALITY These offences are provided for in the Penal Code. 10They are classified as offences against morality. These offences, especially abortion, has been a constant source of controversy. Activists have argued that abortion being illegalized constitutes a breach of the Bill of Rights, hence its unconstitutional. Unfortunately, no decision is available on the question of the constitutionality of unconstitutionality of the offence of abortion. 5.1 Abortion According to section 150 of the Penal Code, any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, shall be guilty of a felony, and shall be liable to imprisonment for seven years. Any woman charged with committing abortion is therefore charged under this provision. Unfortunately, the research has shown (Exhibit A) that instead of abortion being charged under the said section 150, women are being wrongly charged under section 231 of the Penal Code. This section 231 criminalizes killing of an unborn child who is just about to be delivered and carries a maximum of life imprisonment. The provision provides as follows, any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, shall be guilty of a felony and shall be liable to imprisonment for life. According to the explanatory note this offence is termed killing an unborn child. This offence clearly relates to a third party whose intentional or deliberate actions, at delivery, lead to a child not being born alive. However, under section 149 any person who assists in procuring abortion if found guilty is liable to imprisonment for a maximum of 14 years imprisonment. Thus the law considers the person who procures the abortion as committing a more serious offence than the one who aborts, but both will be charged, one with abortion, and the other with procuring abortion. Under Exhibit A, the offence termed procuring miscarry is actually procuring abortion. 5.2 Infanticide Under section 230 of the Penal Code, where a woman bay any willful act or omission causes the death of her child being a child under the age of twelve months, but at the
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(Cap 7:01) of the Laws of Malawi

time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that that but for this section the offence would have amounted to murder, she shall be guilty of a felony, to wit of infanticide, and may such offence be dealt with and punished as if she had been guilty of the offence manslaughter of the child. This offence being categorized as manslaughter, it is only the High Court which has jurisdiction, although according to the case of Republic v Temwa Gondwe, Criminal Case No.72 of 2012 (refer Exhibit A), on a charge of infanticide, there is a pending judgment before a magistrate in Mzimba District. It would be prudent to have a further follow-up of this case, as well as infanticide cases of two women who are on remand awaiting trial for infanticide (ref Exhibit B). 5.3 Killing Unborn Child According to section 231 of the Penal Code, any person who, when a woman is about to deliver of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, shall be guilty of a felony and shall be liable to imprisonment for life. As earlier indicated, this research has shown that, sometimes, prosecutors mistakenly proffer a charge of abortion under this provision instead of under section 150 of the Penal Code. This needs further engagement with the prosecuting authority. This provision, under section 150, is rarely used to prosecute women. 5.4 Concealing Birth of a Child Under section 232 of the Penal Code, any person who, when a woman is delivered of a child, endeavors, by any secret disposition of the dead body of the child, to conceal the birth, whether the child died before, at, or after its birth shall be guilty of the misdemeanor of concealment of birth and shall be liable to imprisonment for two years. This research as depicted by the exhibits attached hereto, demonstrates that most women are charged with this offence across the country. This attracts a maximum sentence of two years. Its therefore considered a misdemeanor. 6.0 RESEARCH METHODOLOGY As per the scope of work for this research, research was conducted in almost the whole of the country with specific visits undertaken to regional centers of the courts, police and prisons (see Exhibit E). In all the regions and across the country discussions were also held with officials from courts (see Exhibit F), police, prisons and Centre for Human Rights Education Advice and Assistance (CHREAA), a human rights NGO operating in all prisons across the country, advancing interests of those incarcerated in prison, especially women. These discussions were aimed at gathering data on the prevalence
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of offences of abortion and the other kindred offences as earlier alluded to, prosecution or alternative disposition of these cases, circumstances of the commission of these offences, and circumstances surrounding the offender(some of the information gathered from these officers can only be presented in the final report once it is clarified by Ipas that it does not breach any ethics rules), penalties imposed and incarceration. There are different people who report these offences, from relations to members of the community. However, in the case of R v Esnart Kumwembe, Criminal Case No. 158 of 2009, which occurred in Machinga in the Eastern Region, there was no complainant. The accused woman was charged with concealing birth of a child. The police investigators were the only witnesses. This shows that the police through their own means came to discover this case. However, in the case of Rep v Yamikani Kandeya(pending trial) members of the community informed the police. It would be more productive to interview the accused women in order to fully appreciate as to who reported the cases. 7.0 CHALLENGES (a) Poor record keeping in all the institutions involved lack of electronic records, this affected data gathering. (b) Incomplete records at the police, records only indicated the number of cases within the period in question without the particulars of the accused persons.(This was so because I had been advised that their Research Department, was the only competent office to give me the data as opposed to the stations involved). (c) Loss of records due to poor record management old records for the period concerned were difficult to find in all the institutions. (d) Information found in prison, police and courts only show the permanent address of the accused person, that is, village, chief and district. This leads to difficulty in tracing those who have already served their sentences since most often times these offences are committed while they are resident in urban or semi-urban areas. (e) Prosecutors, magistrates and judges forget the case once they have dealt with it hence difficult to gather meaningful information from them. (f) Most of these cases involve relations, hence they frequently withdraw any charges laid at the police and most of these cases do not proceed to trial. Once charges have been withdrawn records are not properly kept. (g) Too much red tape, especially in the police, the person with the information refers you to a superior officer who has the authority to give you the data, and
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most often times, such superiors were not even able to give the whole information. (h) All the institutions involved have no database or if they have its not user-friendly. However all the institutions are in the process of developing a unified database which is dependent on EU and DFID funding. (i) One has to physically visit the institutions concerned to collect the data, with less satisfaction. (j) More data is still being awaited from the institutions visited. 8.0 OPPORTUNITIES (a) The police, courts, prisons and the Director of Public Prosecutions are in the process of developing a common/unified database with funding from EU and DFID. (b) The police have now agreed that information be gathered from individual stations concerned and not from headquarters. Since offices of Public Relations Officers were created, the only problem was that most often times one would still be referred to headquarters, and then headquarters would advise you to go back to the station concerned. (c) The courts are in the process of providing case returns from all the court centres. (d) Apart from permanent addresses of accused persons, both the police and prisons are now requiring details of contact persons hence even if one serves ones term of imprisonment it should be possible to trace them if required. (e) NGOs are being allowed access to the police cells and prisons, hence information on those charged with these offences can be gathered from them. In this regard NGOs, Judges (as visiting justices) and even lay persons have access to the prisoners. (f) There is a lot of interest in cases of abortion which can only enhance easy access to information. (g) The information gathered can be used as a springboard for further follow-up of cases of special interest. 9.0 FINDINGS

Women are still being arrested, incarcerated and prosecuted for abortion, procuring abortion and other kindred offences. Unfortunately only at Maula Prison, Chichiri Prison and Mzimba Prison some women answering to these charges were found. Carolina Phiri is actually serving a 15 months sentence, and Emily Senenje serving a 9 months sentence. As Exhibits A, B and C will demonstrate, other matters reported to the police have gone through trial and penalties imposed. Those convicted have either paid a fine, served their sentences or serving their sentences.The law still penalizes conduct deemed to constitute abortion and other kindred offences. Most of these offences are prosecuted in the magistrate court, and the most proferred charge is that of concealing the birth of a child. As to which charge to be proferred it still remains the domain of the prosecutors based on the facts and evidence before them. It is clear though that this remains the most challenging task for the prosecutor. Hence one can be charged with abortion when the facts clearly demonstrate that a preferable and proper charge would have been procuring abortion. The research shows that mostly women have been charged with these offences, with the exception of Mauel Banudi, who administered whatever concoction caused the abortion. He served a two year sentence. I have not come across any provider who has been prosecuted. I have in mind providers like Banja La Mtsogolo (BLM) who are known to conduct abortions in their clinics across the country with the government turning a blind eye. However there has not been any official confirmation from BLM on this. From the interviews conducted with various officials, most of those who have committed these offences, it is due to unplanned pregnancies with the men allegedly responsible, denying responsibility. The stigma surrounding such pregnancy which has been denied, usually out of wedlock, coupled with having meager resources to take up the responsibility of being a single parent amid poverty. I did not come across a case of rape or coerced sex being a factor in the unwanted pregnancy. Peer pressure has also been identified as a contributing factor to cases of abortion and kindred offences. One gets pregnant, and the one responsible denies responsibility, hence one is ridiculed that they are going to have a bastard child and one is therefore driven to commit abortion. 10.0 SPECIAL INTEREST CASES In the course of conducting the research, I discovered some cases of special interest which may require require or merit further investigations. 10.1 Yamikani Kandeya She is on remand at Chichiri Prison in Blantyre, Southern Region. She is aged 15 years old having been arrested, as per records at the prison, on 20 th July 2011. She has been charged with concealing birth of a child. Her prison warder, and I do agree, was concerned that considering her age, she is a child by law, and as such ought not be
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kept in a prison, where there is no juvenile wing. As such she is being incarcerated with adult female prisoners which is definitely not in her best interest and is in breach of the law. Her case needs further investigations in order to fully appreciate her surrounding circumstances which led to her incarceration. Further to understand the consequences of her incarceration, vis--vis, her relationship with her family and immediate community. I have personally referred her case to the Legal Aid Department, to represent her, and in the interim seek her release on bail. 10.2 Lestina Mwandira Under Criminal Case No. 83 of 2010, she was charged with administering poison to procure a miscarriage contrary to section 150 of the Penal Code. She appeared before the Mzimba First Grade Magistrate Court, in the Northern Region, and the case was dismissed under section 247 of the Criminal Procedure and Evidence Code (Cap 8:01) of the Laws of Malawi. This happens when the complainant or prosecutor constantly fails to bring evidence to court. However this discharge does not operate as a bar to any subsequent proceedings against her. Whenever the prosecutor is ready with evidence she will be prosecuted. She is no longer in prison. It would be useful to find out why she was not charged with outright abortion, only further investigations would show what happened, and why the prosecutor has failed to prosecute. There is proposed criminal procedure law which contains time limits within which prosecutions have to be concluded. In the meantime, the law does not prescribe time limits within which prosecutions have to be conducted. 10.3 Christina Luhanga and Modesta Msukwa As reported in Daily Times Newspaper of 7 th April, 2010 (refer Exhibit D), the two were charged with procuring an abortion contrary to section 150 of the Penal Code (Christina) and supplying drugs or instruments to procure abortion contrary to section 151 of the Penal Code respectively. Christina was sentenced to 18 months IHL; whereas Modesta was sentenced to 9 months IHL. The convictions show that each was tried and convicted for specific roles each played. It would therefore be of interest to conduct further investigation to understand the surrounding circumstances which enabled each one of them to play their respective roles, and considerations taken into account on sentencing. 10.4 Caroline Phiri She appeared before the First Grade Magistrate Court in Lilongwe charged with endeavoring to conceal birth contrary to section 232 of the Penal Code. She was sentenced to 15 months IHL, and she is currently serving her sentence at Maula Prison in Lilongwe, Central Region. Her prison record shows that she is a married person, and puts her contact person as her husband, one Jovinala (+265999223105). It would
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therefore be of interest to inquire as to circumstances leading her, a married person, to her present incarceration. Even if she completed her sentence, it would not be difficult to trace her.

11.0 RECOMMENDATIONS This research has been an eye opener, in that as opposed to those who commit other offences like theft, the prison officers interviewed seem to conclude that women who are incarcerated for these offences seem to be acting normally. In my understanding, this meant that these women seem to accept or resign to the situation they find themselves in. In other words there might be a feeling that one feels justified considering ones circumstances that commission of the offence was the only way out of an untenable situation, but this can properly be confirmed when these women are interviewed. It is only then that it can be fully appreciated whether these women are remorseful or whether they feel that they were entitled to do what they did. The cases identified as interest cases must be pursued, and even others which Ipas, with reference to the attached exhibits, find to be of interest can be investigated further. This will help to among other things bring to bear as to whether the women incarcerated seriously feel that they are entitled to abort, or whether its mainly intervening circumstances which lead them to commit these offences. An understanding of the surrounding circumstances of every accused woman, might lead to measures being proposed on how to deal with the issue of abortion, which according to this research is part of our society. We cannot deny its existence but we can choose to find a way of managing it. The concerned institutions, the police, prisons and courts, be encouraged develop and maintain user-friendly databases for easy data capturing of case statistics.

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