A study by Inter-Parliamentary Union (IPU) suggests sexism, harassment and violence against women are ubiquitous in parliaments across Africa. More importantly, the study shows the main instigators of all forms of violence affecting women in parliament are male parliamentary colleagues.
This is not only an issue inside parliament. Recent case law and NGO Reports suggest that women face various forms of violence instigated by males in the run up to a presidential election and after a presidential election. In this essay I draw on Kimberlé Crenshaw’s intersectionality theory to demonstrate the impact that procedural failures, and a failure to act (omission), have on women’s rights.
In relation to procedural failure, this essay refers to the Malawian Inspector General’s failure to put in place a credible system that would ensure that officers of the Malawi Police Service (MPS) discharge their duties in a manner that does not violate the Constitution and the Police Act. What is meant by failure to act here is the omission by the MPS to execute its positive duty of investigation (imposed by the Police Act at Section 4) with the aim of apprehending and prosecuting perpetrators of rape and sexual violence.
The electoral context
Women often struggle to get their voices heard during elections – and especially in the wake of election controversy. One reason for this is that the legal system that is supposed to protect women fails them.
Take the example of Malawi, a fragile democracy but one that has seen regular transfers of power. In 2021, the Women Lawyers Association of Malawi brought a case – S v IG of Police, Clerk of the National Assembly & Minister of Finance ex-parte MM & Ors – after 18 women were raped by police officers during post-election violence.
The backdrop to this is President Mutharika’s controversial election victory in 2019 which was mired by procedural failures, leading people to refer to him as the “Tipp-Ex President“. The election outrage plunged Malawi into disarray and people took to the streets to protest. Against this backdrop, the untimely death of Superintendent Usuman Imedi exacerbated the heavy handed response of the police.
The events in question took place on the 8 October 2020, when women – including young girls – were sexually molested, harassed, assaulted, and raped by officers of the MPS at Mbwatalika and Mpingu in Lilongwe. Upon closer inspection of this case, what becomes evident is the failure by the Inspector General to put in place a credible system that would ensure officers of the MPS discharge their duties in a fashion that does not violate the Malawi Constitution and the Police Act.
In particular, the general function of the MPS can be found at Section 4 of the Police Act that imposes a positivity duty on the MPS to investigate rape and sexual violence. A failure to address poor conduct by the MPS, by the Inspector General, led to officers failing to observe the law and indeed women’s rights.
The Court agreed, ruling that the failure by the Inspector General resulted in various acts of violence against women. The first of these amounted to the violation to dignity and equality contrary to Section 19(1) and 20 of the Constitution. Section 19(1) provides “The dignity of all persons shall be inviolable”.
Secondly, the court held the failures amounted to torture, cruel, inhuman, and degrading treatment and punishment which is contrary to Section 19(3) of the Constitution which states, “No person shall be subjected to torture of any kind or to cruel, inhuman or degrading treatment or punishment”.
Thirdly, the court held failures by the Clerk of the National Assembly violated the group of women’s right of access to justice as provided for under Section 41 of the constitution.
A milestone ruling
Whilst this milestone ruling provides hope to women and girls who are victims of crime during the (post)election period, the failure to charge police officers who had been perpetrators of violence encourages a culture of impunity in Malawi.
The S v IG Police case also brings to light that police abuses during interventions to quell unrest have distinctive implications for women. Women are much more likely to fall victim to rape (or unwanted sexual conduct) at the hands of male police officers – and are often also vulnerable to gender-based violence during the instability and uncertainty that often goes hand-in-hand with political unrest.
Drawing the parallels
Given the influence that political leaders can have over the Inspector General of police and the decision not to prosecute police officers accused of serious crimes, it is important to make the connection between the gendered aftermath of election controversies in Malawi and the way that male MPs harass women legislators within parliament.
The IPU study suggests that in cases of sexual harassment against women parliamentarians across Africa, male colleagues from rival political parties are responsible for 49% of cases reported. This is closely followed by 41% of cases which stem from male colleagues from the same party. What is clear here is that Parliaments are not a safe space for women.
It seems likely that these challenges will be most severe in countries in which a strong female presence in the legislature is rare. As things stand, there are only 44 women in Malawi’s parliament, as compared to 148 men – just 23%.
One sad reality that the comparison of the treatment of female MPs in parliament and the treatment of women during protests brings out is that no woman is safe from harassment and discrimination. Intersectionality is important and poorer women have fewer opportunities to contest their oppression, but even some of the high profile and wealthy women in the country suffer regular abuse.
Building a better future
The Courts have made a first move to try and change Malawi’s problematic political environment, but it will count for little if it is not followed up with concrete changes to the design of the law and the way in which it is implemented.
Though the courts identified that women need protection during a run up to an election much more needs to be done at a procedural level to ensure the police force observe key fundamental rights that are cardinal to any democratic society.
Moving forward, it is imperative MPS follow the guidance set out in the Malawi Constitution and the Police Act which state that it is a positive duty of the police to act by investigating incidents of rape, sexual violence, and physical violence. The failures of the MPS contribute to procedural impunity in Malawi and runs the risk of reducing the confidence women have in Malawi’s state security institutions.
Failure to do this will see more women being discriminated against at multiple levels, which is only likely to have a negative effect on political participation and willingness to stand to office. With gender quotas still a long way off, women’s representation in Malawi risk getting worse before they get better.
Mwai Daka (@MwaiDaka) is a politics postgraduate from the Department of Politics at the University of Sheffield. His research interests are land tenure, food security, and human rights.