Pretoria – The judiciary in Malawi has launched an investigation after a magistrate in Balaka allegedly ordered a man accused of rape to have his penis fondled in court to find out if he can get an erection.
It is alleged the accused claimed he had erectile dysfunction as a defence.
According to court papers, the accused, Yusuf Willy, 22, from Kalimba village was arrested and charged with raping a 17-year-old girl on June 9, 2021.
In his defence, Willy said he was unable to have an erection and magistrate Philip Chibwana indicated that he would like to find means to see if he can have an erection.
A woman stood up in court and volunteered to touch the accused’s penis inorder to see if he can have an erection.
When the matter returned in court, Willy, the magistrate, the prosecutor, the court interpreter and the volunteer went into the chambers where they observed Willy’s genitals fondled for more than 30 minutes.
“Observation by court is that the penis got a bit hard but not very hard,” read the court papers.
After the demonstration, a parent approached a justice in the high court and told her about what transpired in the lower court.
“The complaint to the court included that during this process of examining whether the accused has ability to become hard and therefore perform sex, occurred in the presence of the girl who was sexually assaulted.
“Notably, the issues that were raised above of secondary victimisation or revictimisation of sexual offences victims or survivors in courts can emanate from various issues,” read the court documents.
When reviewing the matter, Judge Zione Ntaba said it was at pains to understand what could have prompted the magistrate to take this pervasive route of allowing such a gross display to occur in his court.
“This court was further surprised to note that the issue of this illegal show seemed to have been introduced out of the blue,” Ntaba added.
Ntaba ordered the trial to recommence before a different magistrate assigned by the chief resident magistrate.
She also ordered the director of public prosecutions to assist the victim and her family with resources to ensure her attendance at court and further counselling be provided.
In addition, she referred the issue to the judicial service commission for gender bias issues to be dealt with, including the magistrate’s conduct in the case.