When Justice Falls Short: Why Criminalising Torture Matters for Reparation in Malawi
By Vivian Kasunda, Criminal Justice Researcher at the Southern Africa Litigation Centre
Police abuse, such as torture, poses a serious concern that undermines the rule of law and aggravates human rights violations. Despite Malawi’s constitutional provisions prohibiting torture and international obligations to protect human rights, torture and cruel, inhuman, and degrading treatment by law enforcement agencies are a lived reality in the country.
A key barrier to justice and accountability in such cases is the lack of explicit criminalisation of torture in Malawi’s legal framework, which also limits the ability of victims to access full and effective reparation.
On 25 April 2025, the Magistrate Court in R v Mbewe and 2 Others Criminal Case Number 124 of 2024 found two police officers guilty of causing grievous harm and neglect of official duty for tying the hands of a 13-year-old child with a rubber belt for multiple days. This led to poor blood circulation and ultimately the amputation of both limbs. While the judgment might appear as a step toward accountability, it reveals the disconnect between Malawi’s Penal Code – which lacks a penalisation of torture – and Malawi’s international obligations to prohibit and penalise acts of torture.
Due to the lack of penalisation of torture, prosecutors rely on related offences such as grievous harm or assault to hold perpetrators accountable. While these charges can lead to convictions, they do not fully capture the seriousness and gravity of torture or any cruel, degrading or inhuman treatment. The absence of a torture-specific penalisation and the lack of application of international law can further lead to the inconsistent application of the law.
Incorporating an offence of torture into Malawi’s legal framework would align the country with international agreements it has ratified, such as the UN Convention against Torture, the African Charter, the ICCPR, as well as customary international law and jus cogens. It would also pave the way for effective remedies for victims and survivors. Including provisions for compensation related to physical and psychological harm, access to medical and psychological treatment, and processes for truth and reconciliation is key to promoting justice and full reparation for victims.
On 26 May 2025, the Magistrate Court issued its sentencing judgment, convicting the police officers to a term of ten years in prison. While a degree of justice has been achieved considering the absence of a specific torture offence, this case exemplifies how courts may fail to order for reparation for victims due to these legislative gaps.
To prevent such outcomes, SALC continues to advocate for the domestication of the crime of torture, the application of binding international law, and a clear domestic legal basis in the Penal Code to ensure a legal characterisation of acts of torture that adequately reflects the seriousness and gravity of the conduct. SALC is also engaged in the civil case aimed at securing compensation for the survivor in this case.
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