Criminal prosecution is secured by placing charges on a suspect. The legal system of any country puts, in place, the necessary legal infrastructure/tools that guide prosecution. In Malawi we have the Penal Code as one of the tools guiding criminal prosecution in as far as framing of charges is concerned.

In this Penal Code, there is no such offence as inciting rape. Knowing that this case/charge does not exist, activists went searching a nearest applicable charge with which to punish the naughty artist. They have settled for Section 137 (3) of the Penal Code.

This Section subscribes to an offence of indecent assaults on females. In particular, the said Section provides as follows (quoted verbatim):

“Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or intrudes upon the privacy of such woman, shall be guilty of a misdemeanour and shall be liable to imprisonment for one year.”

It is true that the song made a sound with utterances, in its lyrics, that insulted not only the women population, but males inclusive. The evidence is in the furry which was, to a larger percentage, exhibited by fellow men – who were purportedly getting furious on behalf of the women population.

But let us examine this applicable law carefully: The law says “modesty of a woman” and not the women population. It keeps emphasizing that “such woman”. This narrow contemplation by the law bears the purpose of isolating generality.

In prosecution, evidence is crucial and unlike in civil matters where evidence may pass on mere preponderance, the standard is much higher in criminal trials due to the tough penalties associated with convictions thereof. In Chavura’s case, there is no particular woman whom the law would recognize as “such woman” who can justifiably claim an assault from the lyrics.

I am willing to donate useful cases to Chavura’s legal counsel.

I am on +27 60 329 4465

LordDenning SC

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