Q & A

‘Corroboration rule must be abolished’

 

Last week, President Peter Mutharika led Malawians in commemorating the International Human Rights Day under the theme: “Our Rights. Our Freedom. Always.” One issue that has been a centre of debate has been the corroboration rule in rape cases. EPHRAIM NYONDO talked with MZATI MBEKO, national coordinator for Women and Law in Southern Africa (WLSA) on the rule and how it connects with rape victims and human rights.

Mbeko: Corroboration rule is discriminatory to girls and women
Mbeko: Corroboration rule is discriminatory to girls and women

Q

: Two weeks ago, you filed a claim against the corroboration rule before the High Court seeking the courts’ certification for a constitutional review. What is a corroboration rule and how did it find itself in our justice system?

The corroboration rule, or the third party evidentiary requirement, dates back to colonial time made when women had little to no legal rights, and were seen as unreliable witnesses due to their gender, likely to lie about rape. The rule requires judges to warn themselves of the ‘danger’ of convicting an accused rapist solely based on the testimony of the woman. A rape survivor must ‘corroborate’ the rape, meaning she has to provide medical evidence or a third-party witness to the attack.

 

Q

: So is there a problem there?

 

A

: The corroboration rule basically requires ‘extra’ evidence to support the victim’s story, evidence not required with respect to any other criminal offence. It is also problematic as the crime of rape, by its nature, occurs in seclusion, so that there are no third party witnesses. The problem with requiring medical evidence to prove a rape is that often that evidence is not available as it may take a woman some time to reach a hospital following a rape, she may wash herself after a rape wishing to rid herself of the horror from the rape, and sometimes medical evidence just is not available or reliable.

 

The rule, hence, results in a lack of access to justice for rape victims, in violation of the Constitution; the need to provide for increased access to justice in Malawi was recently recognised by Convention of Elimination of all Forms of Discrimination Against Women (Cedaw) which Malawi is signatory to. The corroboration rule results in a lack of faith in the justice system that deters women from reporting; impunity for the accused, leaving him free to rape again; impunity that sends the message to potential perpetrators that there are no consequences for the crime of rape, which increases rape rates, and leaves girls and women vulnerable to more violence.

The corroboration rule even applies if an accused is trying to plead guilty to a rape, so that he is prevented from pleading guilty if the corroboration is not available. Malawians should be concerned with the injustice resulting from the corroboration rule as it is helping to create a climate of impunity for rape, and this impunity leaves women and girls vulnerable to rape. In Malawi, 1 in 5 girls have been sexually abused before age 18.

 

Q

: If we remove the rule, are we not making it difficult for courts to establish justice before arriving at a sentence?

 

A

: You see, the corroboration rule does not apply to any other criminal offence. In a break and enter or in a murder case, there is no need to provide corroboration. If the corroboration rule is eliminated as it applies to rape, rape will be treated the same as any other crime; all of the available evidence will be considered and tested under the

established evidence laws, and the prosecution will still have to prove that the accused is guilty beyond a reasonable doubt—nothing will change with respect to that basic, foundational principle.

 

Q: Some would argue that removing the rule is akin to giving women and girls a leeway to punish men they disagree with. How do you asses that?

A

: Removing the rule will mean that rape will be treated like any other crime. There is a discriminatory belief internationally, not just in Malawi that women lie about rape to punish men they disagree with. Research actually shows that rape victims make false allegations in 2 to 8 percent of claims, the same rate as false reports of other crimes.

Is the problem of corroboration rule only confined to Malawi?

The problem of corroboration is not confined only to Malawi; the problem exists in other countries too. The corroboration rule was established in 1736 in the U.K.; the U.K. abolished the rule in 1994.

 

Q

: Any other remark?

 

A

: Malawi has an excellent Constitution. Malawi’s Constitution includes the right to dignity in court proceedings, the right to equality and to access justice, and the right to security of the person. Regional and international human rights law also protects these rights. The rape survivors in this landmark case will argue that the corroboration rule results in the violation of these rights. The case will provide for access to justice for all 9 million girls and women in Malawi. We must abolish this rule now!

 

daw) which Malawi is signatory to. The corroboration rule results in a lack of faith in

the justice system that deters women from reporting; impunity for the accused, leaving him free to rape again; impunity that sends the message to potential perpetrators that there are no consequences for the crime of rape, which increases rape rates, and leaves girls and women vulnerable to more violence.

The corroboration rule even applies if an accused is trying to plead guilty to a rape, so that he is prevented from pleading guilty if the corroboration is not available. Malawians should be concerned with the injustice resulting from the corroboration rule as it is helping to create a climate of impunity for rape, and this impunity leaves women and girls vulnerable to rape. In Malawi, 1 in 5 girls have been sexually abused before age 18.

 

Q

: If we remove the rule, are we not making it difficult for courts to establish justice before arriving at a sentence?

A

: You see, the corroboration rule does not apply to any other criminal offence. In a break and enter or in a murder case, there is no need to provide corroboration. If the corroboration rule is eliminated as it applies to rape, rape will be treated the same as any other crime; all of the available evidence will be considered and tested under the

established evidence laws, and the prosecution will still have to prove that the accused is guilty beyond a reasonable doubt—nothing will change with respect to that basic, foundational principle.

 

Q: Some would argue that removing the rule is akin to giving women and girls a leeway to punish men they disagree with. How do you respond to that?

A

: Removing the rule will mean that rape will be treated like any other crime. There is a discriminatory belief internationally, not just in Malawi that women lie about rape to punish men they disagree with. Research actually shows that rape victims make false allegations in 2 to 8 percent of claims, the same rate as false reports of other crimes.

Is the problem of corroboration rule only confined to Malawi?

The problem of corroboration is not confined only to Malawi; the problem exists in other countries too. The corroboration rule was established in 1736 in the U.K.; the U.K. abolished the rule in 1994.

 

Q

: Any other remark?

 

A

: Malawi has an excellent Constitution. Malawi’s Constitution includes the right to dignity in court proceedings, the right to equality and to access justice, and the right to security of the person. Regional and international human rights law also protects these rights. The rape survivors in this landmark case will argue that the corroboration rule results in the violation of these rights. The case will provide for access to justice for all 9 million girls and women in Malawi. We must abolish this rule now!n

 

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