The court ruling in the trial of Eric Aniva, who is being accused of practising harmful cultural practices involving sexual cleansing of girls and women, will either fortify or undermine the relevance of the Gender Equality Act.
The “Nsanje hyena” is the first to be charged with the offence since Parliament passed the Act in 2013.
This case is a litmus test for the law some commentators find too weak to effect major shifts in the status of women in the country. A verdict in favour of Aniva will reinforce these claims and further dilute the relevance of the country’s gender-related laws. Just recently, the Act was defied in the selection of commissioners for the Malawi Human Rights Commission. The civil society tried in vain to pressure the appointing authorities to respect the quotas it stipulates.
The judgement is likely to water down community by-laws, one of best practices in community-led interventions for the promotion and protection of women’s rights in line with the Gender Equality Act, Prevention of Domestic Violence Act (2006) and Marriage Act (2015).
Generally, the by-laws contribute to the elimination or transformation of cultural practices that trigger the marginalisation of women and girls in the communities. Victory for the alleged sexual cleanser will equally render the by-laws ineffective and useless.
Precedent will be set, harmful cultural practices of the kulowa kufa nature will endure and more girls will be exposed to undeserved vulnerabilities.
Whatever the outcome, rights advocates need to seriously appraise the efficiency of the present women empowerment approaches. In particular, the enactment of laws to stop socio-cultural tendencies that contribute to women subjugation. It is ironic that, for instance, traditional leaders that ostensibly promote community by-laws have secretly sustained acceptance of negative cultural practices, including such as sexual cleansing.
The women’s rights campaigners need to push for a reconciliation of the key laws and the gender-related laws to address the inconsistencies that limit full enforcement of the gender laws.
The hyena story is a good case study.
At the start, all odds pointed to a possible conviction of the accused. However, the initial hearings are painting a different picture. From magistrates recusing themselves to Malawi Law Society (MLS) decision to represent the sexual cleanser, the possibilities of the man walking to freedom again have been reinforced.
The MLS pronouncement came as a surprise to many. Much as impartiality and presumption of innocence are key principles of justice, one would expect the same speed from the society to remedy the culture-based violations of the rights of girls and women.
It appears different camps would just want to make a point regardless of whether the rights violations will be remedied and sanctioned or not.
I am not suggesting that the alleged perpetrator should be denied justice. Rather, objectivity in defending both sides should be pursued in the interest of justice.
One wonders why the law society decided to represent the sexual cleanser and not investigate and represent the girls whose rights were violated.
Is it because of the manner in which Aniva was arrested and how he has been treated since his arrest? The reaction has partly confirmed the irony and subjectivity in our approaches to managing human rights issues.
The girls have rights and deserve justice, so too the alleged sexual cleanser. Anybody interested in the case needs to strike a balance. The decision by the law society has pushed the tide of reason off its rails, catalysing the question: Whose rights are more important?
There is more at stake and the implications are longstanding, but I implore that we protect what is right for the future. n