Africa

The two accused persons were charged and convicted of having carnal knowledge against the order of nature –contrary to Section 153(a) of the Penal Code, which is understood to prohibit same-sex sexual relations. In the alternative, the two accused persons were charged with indecent practices between men contrary to Section 156 of the Penal Code. Both of the accused persons pleaded not guilty but were convicted of both charges and sentenced to the maximum penalty of 14 years of imprisonment including hard labor.

The appellant was convicted by the Third Grade Magistrate Court of two counts of theft and sentenced to six months in prison with hard labor. She appealed her sentence to the High Court and asked the Court to consider a non-custodial sentence instead because she was pregnant and about to give birth. The High Court reduced the appellant’s sentence to time served and admonished the Magistrate Court for sentencing her to imprisonment without considering her status as a first-time offender and a pregnant woman as required by sections 339 and 340 of the Criminal Procedure and Evidence Code.

A Fourth Grade Magistrate convicted the appellant and 18 other women for knowingly living on prostitution earnings, a misdemeanor that carries a maximum sentence of 24 months in prison. In Malawi, Fourth Grade Magistrates’ jurisdiction is limited to cases in which the maximum sentence is 12 months. This jurisdictional limit was the appellants’ first ground of appeal.

The 33-year-old defendant pled guilty and was sentenced to 10 years’ imprisonment by a First Grade Magistrate for defilement after luring a nine-year old girl to his house and raping her. Subsequent medical examinations revealed that the defendant was HIV-positive, as well as injuries and other evidence of the crime on the victim, who did not contract HIV. The State appealed the sentence, arguing that it was insufficient due to the nature of the crime.

The defendant was convicted rape, with the trial court finding that he followed the complainant to her house, suggested sexual intercourse, attacked her when she declined, and raped her. The defendant, a first-time offender, received a sentence of four years’ imprisonment. A judge reviewed the sentence and sent it to the High Court for consideration on the grounds that the sentence necessitated judicial remand due to manifest inadequacy.

Three minor girls, victims of human trafficking who the defendant lured in with promises of working in a restaurant, but instead sent to work at a bar, appealed their case. When the work conditions turned out to be exploitative, the appellants reported the defendant to the police.

The plaintiffs, four members parliament, sought judicial review before the High Court of a decision of the State President to appoint a woman, Mrs. Fiona Kalemba, as the Clerk of Parliament. This occurred against the recommendation of the Parliamentary Service Commission, which had submitted a male candidate who they believed to be the best candidate for the position. The State President wanted three short-listed names for the position, and specified that a woman should be included.

The defendant was charged the defilement of the complainant, a 17-year-old girl. In his defence, the accused claimed that he could not get an erection (albeit, apparently, only after the magistrate raised the question himself). During the proceedings, a woman stood up in court and volunteered to ascertain whether the accused could obtain an erection.

In this case, the Constitutional Court declared §2(1) of the Upgrading of Land Tenure Rights Act (Upgrading Act) unconstitutional. §2(1) of the Upgrading Act automatically turned land tenure rights into rights of property ownership, without providing other occupants or affected parties an opportunity to make submissions. The Court held §2(1) unconstitutional because it had a discriminatory effect on women’s property rights. During apartheid, only men could be the head of the family and hold Certificates of Deed and Grant.

The applicant was separated in her marriage and sought to regain custody of the child she had lost to her husband, the respondent. A lower court granted the respondent custody of the child on the grounds that he had paid lobola to marry the applicant and customary law therefore entitled him to the child. After delaying to comply with the court’s order and attempting to seek relief from another court, the applicant was found guilty of contempt for fighting to keep her child. She was sentenced to five working days in civil prison.