Key findings of the Court

The Court found that the testimony of the second prosecution witness, Ntonya Fole, was irrelevant. This was because her entire testimony related to events that happened before the Act was enacted. As a result, although this witness admitted having had sexual intercourse with Aniva as part of kulowa kufa, the Court held that the sexual intercourse happened “outside the period in the charge … [her / the] evidence is therefore not relevant to the case at hand”.Footnote ²⁷ Poignantly, Ntonya Fole was the only witness who testified to having actually had sexual intercourse with Aniva as part of kulowa kufa.

As for the testimony of Mary Bornface and Ernest Bornface, the Court found that Aniva never conducted kulowa kufa with Mary Bornface. While it was established that Aniva had visited Mary Bornface's residence, supposedly for the purpose of conducting kulowa kufa, the Court accepted that Aniva was rejected on both occasions. The Court also accepted that Aniva neither forced himself on Mary Bornface nor even attempted to force himself on her.

The Court also established that, after he had been arrested, Aniva made a statement to the police in which he admitted having practised kulowa kufa. According to the Court, this statement, together with the fact that Aniva had gone to Mary Bornface's house, where he had attempted to carry out kulowa kufa, made it “abundantly clear that the State had proved beyond reasonable doubt that the accused was doing kulowa kufa thereby engaging in a harmful practice contrary to section 5 of the Gender Equality Act”.Footnote ²⁸ In a similar vein, the Court found that the offence of attempting to engage in a harmful practice was proved, since Aniva had visited Mary Bornface's house for the purpose of conducting kulowa kufa.

The Court convicted Aniva on both counts and on 22 November 2016 he was sentenced to 24 months imprisonment on the first count and ten months imprisonment on the second count, with the sentences to run concurrently. Although section 5 of the Act gives a convicted person the option of paying a MK1,000,000 fine, the Court rejected this in favour of a custodial sentence. The Court also rejected the Sentencing Guidelines guidance requiring that, where the law provides for a fine and / or imprisonment, a custodial sentence must always be the last resort.Footnote ²⁹ According to the Court, “imposing a fine or a suspended sentence would be a mockery to the administration of justice”.Footnote ³⁰

Although it was established that Aniva was a first-time offender and that this should, ordinarily, have entitled him to a less severe sentence including the option of a non-custodial sentence, the Court found that there were aggravating circumstances militating otherwise. Some of the aggravating factors identified by the Court were that Aniva had taken “advantage of the vulnerability of women and girls and their disadvantaged or vulnerable status in the community”.Footnote ³¹ The Court was also of the view that the case against Aniva “in spite of its cultural backing, centered on the exploitation of the victims for the financial or material gain of the convict”.Footnote ³² According to the Court, the fact that “the offence took some deliberation and planning, spanning over a considerable period of time” was another aggravating factor.Footnote ³³ It was also the Court's finding that Aniva's case was aggravated in so far as “the convict showed no remorse by pleading not guilty and not admitting the crime. He was thus non-repentant”.Footnote ³⁴

The Court further held that the Act must be understood as an offshoot of Malawi's obligations under the various treaties to which it is party. The treaties to which the Court expressly referred included the: Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW); Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women (Maputo Protocol); and Convention on the Rights of the Child (CRC). According to the Court, “Malawi has a specific obligation under national and international law to eliminate harmful social and cultural practices that negatively impinge on the rights of vulnerable groups such as women”.Footnote ³⁵ This obligation, the Court established, “requires Malawi to prevent the commission of harmful practices by private individuals. It further requires appropriate judicial actions in order to prevent and eliminate harmful practices”.Footnote ³⁶

The next section of this article provides an overview of the constitutional place of international human rights law in Malawi. In this way, the author hopes that the broad canvas against which Aniva's trial was conducted can be appreciated.

Human rights on trial? The Court's assessment of kulowa kufa

One of the unique attributes of the Constitution is that it, invariably, guarantees human rights to “every person”.Footnote ⁴⁶ Although Aniva's trial implicated several human rights, the following constitutionally guaranteed rights were, arguably, central to the charges that he faced: the right to dignity (section 19); the rights of women to equal protection of the law (section 24); the right to engage in cultural practices of one's choice (section 26); and the right to a fair trial (section 42). At one level, Aniva's trial was an opportunity for the Court to explore whether kulowa kufa, as a cultural practice, could stand the test of constitutionality, especially in the light of a law (the Act) that outlaws harmful cultural practices. On a literal reading of the Constitution, section 26 could be raised as justification for engaging in kulowa kufa. It is trite, however, that rights in the Constitution must be read holistically, meaning that section 26 should be considered together with, for example, sections 19 and 24.

In Malawi's legal system, if the Court, in Aniva's case, was of the view that the case before it “expressly and substantively” related to or concerned the interpretation and application of the Constitution, the matter should have been referred to the chief justice, for certification of the constitutional issues arising.Footnote ⁴⁷ On the chief justice's certification, the High Court would then sit as a “constitutional court” to resolve any constitutional questions. Given the absence of a referral, it can safely be surmised that the magistrate did not see any constitutional issues worth the High Court's attention. Notably, magistrates’ courts in Malawi are only barred from determining matters that expressly and substantively relate to the interpretation and application of the Constitution. In practice, these courts routinely engage in constitutional interpretation and application, for example, when dealing with the release of suspects on bail, which is covered under section 42 of the Constitution.

The Court's assessment of kulowa kufa can be captured from the following passage in its judgment:

Given the charges against Aniva, it is arguable that what was partly at stake was the constitutional validity of kulowa kufa as a cultural practice. Strangely, the Court's judgment made no allusion to the role of the right to culture in its assessment of kulowa kufa. It is also notable that the Court held that kulowa kufa violates the dignity of a human being, due to the forcible sexual intercourse that is entailed, with no reference to the parameters of the right to dignity under section 19 of the Constitution. The Court could have, for example, explicitly demonstrated why kulowa kufa is unjustifiable under the constitutional right to culture, while also taking time to expose the demands of the right to dignity and how they intersect with kulowa kufa.Footnote ⁴⁹ Further, section 44 of the Constitution provides the factors that must be considered in order legitimately to limit any constitutional right. The Court, however, never attempted to use the constitutional limitation scheme to assess kulowa kufa. There is, therefore, no compelling judicial analysis highlighting how kulowa kufa is not only factually a harmful practice, but also why it cannot be sustained under the right to cultural practices for which the Constitution provides.

It is arguable, however, that the Court's conclusions may have been influenced by Malawi's international human rights law obligations. By way of illustration, after recalling that Malawi is a party to CEDAW, the Maputo Protocol and the CRC, the Court stated:

As noted above, the application of international law in Malawi has constitutional fiat. However, it is important to recall that universal human rights tend to carry and convey serious compulsion around their core values. An age-old challenge is how universal human rights must respond to the varied particular circumstances in which they are meant to be enjoyed. Aniva's trial highlighted some of the challenges of resorting to universal human rights when dealing with culturally particular questions. Given the public excitement that Ed Butler's report generated, it is arguable that Aniva's trial and conviction were simply a temporal reaction meant to assuage the demands of international human rights and portray Malawi as a human rights-compliant country. Critically, what seems to have been at play here is the “rhetoric of human rights”, this being the ubiquitous universalizing message of the human rights movement.Footnote ⁵¹ Whatever the value in the judicial resolution of individual cases raising human rights issues, it is overambitious to assume that this somehow amounts to an advancement in the human rights of the group from which the victim comes. The paucity of prosecutions for kulowa kufa under the Act, until now, suggests, among other things, that Malawi has yet to devise a comprehensive strategy for dealing with the so-called harmful cultural practice beyond criminalization. Remarkably, it took almost three years after the Act was passed for the first trial under section 5 to be held and no further trials for kulowa kufa have been reported since Aniva's was concluded. Given that criminal cases rely on willing complainants and witnesses, the lack of further kulowa kufa prosecutions under section 5 of the Act may also be indicative of communal unwillingness to use the criminal law to deal with this cultural practice. Ironically, in an earlier interview, Aniva, also admitted to practising kulowa kufa, but that interview did not draw as much public ire as the one that led to his trial.Footnote ⁵² This lends credence to the fact that it was, largely, the international exposure that landed Aniva in trouble.

The contradiction at play here is that Malawi has readily embraced human rights but there persist certain elements in its social life that require careful reconciliation with the demands of human rights. Focusing on kulowa kufa, it is clear that the mainstream messages about its harmful effects have a high reception rate among the Sena people of southern Malawi.Footnote ⁵³ Nevertheless, the communities concerned seem to have devised ways to continue with the practice while still participating in the various initiatives, either by the Government or civil society organizations, meant to eradicate the practice.Footnote ⁵⁴ In fairness, therefore, Aniva's conviction was merely a salutary reaction that made little or no contribution towards the eradication of kulowa kufa. Put crudely, the country “needed” Aniva to be convicted so that an appropriate posture about Malawi as country that promotes and protects human rights could be sustained.

Over 100 victims and only six witnesses: Where were Aniva's victims?

The state called six witnesses but only one testified to have had sexual intercourse with Aniva as part of kulowa kufa. The absence of witnesses, notwithstanding the alleged multiplicity of Aniva's victims, is baffling. A possible explanation, as explored below, could lie in the question of communal complicity in criminal conduct. Kulowa kufa requires the involvement of several community members. The process is set in motion when the concerned village headman, his committee and the relatives of the deceased discuss the matter and agree on the logistical arrangements, including identifying the hyena and agreeing on when kulowa kufa must be carried out.

In this context, it is important to note the following provisions of section 21(1) of Malawi's Penal Code, which the Court never considered:

Section 403 of the Penal Code provides: “[e]very person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completion thereof, shall be guilty of a misdemeanour.”

Importantly, under section 5 of the Act, one's culpability can be engaged by doing several things, including committing the harmful practice, engaging in the harmful practice, subjecting another to the harmful practice or encouraging the harmful practice. Strictly speaking, therefore, everyone involved in arranging kulowa kufa could be caught by section 5 of the Act, at least for encouraging the commission of a harmful practice. Aniva, as may be recalled, was convicted of engaging in a harmful practice. The farcical suggestion that the Court's conclusion points to is that Aniva singly organized the kulowa kufa in which he was convicted of engaging. This is simply impossible, even though the Court demonstrates no awareness of the fact.

A number of peculiarities in Aniva's case are also worth noting. The BBC report, which was the precursor to his trial, indicated that he had confessed to having had sexual intercourse with 104 women and girls. The report, though, questioned whether this number was accurate seeing as Aniva had, allegedly, given the same number of women and girls that he had slept with in a 2012 interview.Footnote ⁵⁵ Taking Aniva at his word, there were at least 104 potential witnesses against him. Yet, the state was only able to find one witness who testified to having had sexual intercourse with Aniva; remarkably, this witness's testimony ended up being disregarded by the Court. It is also notable that, according to another BBC report, “[w]hen Malawi's president … ordered the arrest, he wanted Aniva tried for defiling young girls, but no girls came forward to testify against him”.Footnote ⁵⁶ Additionally, Aniva's resort to his right to silence during his defence, it seems, was motivated by the fact that there was no one willing to testify on his behalf.Footnote ⁵⁷ Even from among those who collaborated with Aniva in organizing kulowa kufa, it turned out, no one was willing to speak publicly in his defence.

The absence of witnesses is telling. While a firm conclusion may require further interrogation, the lack of witnesses may have stemmed from communal complicity in the commission of kulowa kufa. It must be recalled that, notwithstanding the alleged multiplicity of Aniva's victims, no one had filed a complaint against him before the publication of the BBC report. In this connection it is worth recalling that cultural practices that have been performed over a long period of time tend to acquire an aura of normality.Footnote ⁵⁸ Any effort to deal with such practices is thus bound to encounter resistance; the lack of witnesses in Aniva's case may be a manifestation of such resistance.

It is also useful to dwell, for a moment, on the testimony of one of the state witnesses (Mary Bornface). It was her testimony that she was informed by her late husband's parents that Aniva would be her hyena. Applying the principles of criminal law as contained in sections 21 and 403 of the Penal Code and also following the prohibited levels of participation in section 5 of the Act, everyone involved in arranging the conduct of kulowa kufa is criminally complicit. Although the state can choose to make some participants in a criminal enterprise state witnesses, nothing of this sort was done in Aniva's case. Despite the complicity of all those who may have been involved in arranging kulowa kufa with Aniva, no one was jointly charged with Aniva. Not even Mary Bornface's parents-in-law, whom she had implicated in her testimony, were tried. Indeed, if there were at least 104 victims of Aniva's deeds, the number of accomplices to his crimes was bound to be much higher. Given that Aniva was the only person who was charged and convicted, he can be said to have been treated as the proverbial sacrificial lamb on behalf of his community, if not the nation at large. According to José Safarao, Aniva was treated as a scapegoat and arresting him was treating the symptoms, not the disease, since “Aniva did not go looking for widows and adolescents to sleep with. They hired him”. Safarao further claimed that “these custodians of the culture” would continue secretly to hire men like Aniva.Footnote ⁵⁹

Additionally, the state's failure to instigate a much broader investigation and prosecution suggests either non-appreciation of the true nature of the alleged criminal conduct or simply confirmation of the tokenism with which the matter was approached. Investigating the matter fully, and following up with sincere prosecutions, would have entailed implicating too many people and, perhaps, Aniva's trial was that token commitment to human rights that helped avert such a crisis. There may, therefore, be some truth in the assertion that the public outrage at Aniva wasn't so much out of reprehension for what he had done but more from national embarrassment at the global attention that the BBC report generated.Footnote ⁶⁰

Did the media unduly influence the outcome of Aniva's trial?

Media coverage of criminal proceedings may, unwittingly, create pressure on a court to deliver certain outcomes as well as to dispose of cases in a way that does not expose judicial officers to the wrath of the media.Footnote ⁶¹ Aniva's trial generated much public interest both locally and internationally. For the purposes of the present analysis, the question is whether the media attention resulted in Aniva being tried and convicted by the media even before the Court concluded his trial. If so, this would suggest a significant erosion of the presumption of innocence.

The question of trial by media raises the dilemma of how to balance the media's freedom of speech and expression, on the one hand, with an accused person's right to a fair trial, on the other.Footnote ⁶² Undoubtedly, the media possesses the right to disseminate information about various societal matters including the occurrence of criminal behaviour. At the same time, however, courts must remain alert to the possibility that a fair trial, which is always due to an accused person, may be undermined by undue pre-trial publicity. Publicity of a pending trial may include uninformed opinions about the guilt or innocence of a particular accused person that may poison the minds of the public about the outcome of a pending case. This is particularly grave considering that the judges, in many of the cases that will have been canvassed in the media, will also have access to the same publications. They cannot, therefore, be presumed to be insulated from the public discussions and pre-emptive conclusions of the public at large.

The publicity surrounding Aniva's case was predominantly negative.Footnote ⁶³ As noted above, his arrest came in the wake of a presidential directive following the publication of the BBC report. It is not often that simple law enforcement activities require the intervention of the president. The presidential intervention, which was publicized by the media, may have created an expectation that a conviction was expected. In respect of the media's role, it is also not insignificant to note the time between the commission of the offence(s) by Aniva, and his arrest and trial. According to the charge sheet, Aniva's crimes were committed between 2013 and 2016 but he was arrested in July 2016. In addition to the reasons noted above, Aniva's arrest and trial may, therefore, have been a consequence of media attention in his case.

Given the media coverage, it is fair to conclude that the magistrate was aware that the case before him had generated considerable local and international media attention. It is difficult to ascertain precisely how much the magistrate's treatment of the evidence before him was because of the media attention. Legal realism, however, suggests that to assume neutrality on the part of the magistrate in such a context would be naïve.Footnote ⁶⁴ The combination of factors highlighted above persuasively points to the fact that the magistrate may have, tacitly, been influenced by media coverage to ensure that Aniva was convicted. For example, from an evidential perspective, the state's case had significant weaknesses stemming from a failure by the state to procure key witnesses. The Court's judgment, however, aside from unequivocally condemning kulowa kufa, did little to canvass any weaknesses in the state's case. This suggests an unbalanced assessment of the relative strengths and weaknesses of the case for the prosecution and defence.

The clearest indication that the media may have had a role in the outcome of Aniva's case emerges in the Court's ruling on sentence. The Court conceded that the “the matter is undoubtedly of public interest” and that it would consider the public interest in determining the sentence. The Court, thus, partly justified Aniva's sentence based on deterrence and denunciation. It is also striking that the Court opted for a custodial sentence, not a fine, even though the law generally requires it to exercise the option of a fine for a first offender like Aniva. The choice of a custodial sentence may be indicative of a court under public pressure to demonstrate its “seriousness” in dealing with offenders such as Aniva. As the Court pointed out, “imposing a fine or a suspended sentence would be a mockery to the administration of justice. Reasonable members of society would query as to what has befallen the administration of justice”.Footnote ⁶⁵ Overall, the media coverage had a role in Aniva's arrest and, during the trial, worked to erode the application of the presumption of innocence, thus undermining his right to a fair trial.

Fair trial, confession evidence and defective charges

From a criminal law perspective, the charges filed against Aniva, as will be demonstrated, were defective. Aniva was charged with engaging in a harmful practice and attempting to engage in a harmful practice. The charges attempted to specify the period when the offences were committed as well as the crime scene(s). For engaging in a harmful practice, the time span and location were indicated as being “between 2013 and June 2016 in villages in Nsanje District in the Republic of Malawi”.Footnote ⁶⁶ As for attempting to engage in a harmful practice, the charge specified that “in July 2016 at Chimkuzi Village in Nsanje District … attempted to have carnal knowledge of Mary Bornface”.Footnote ⁶⁷

Malawi's criminal law, following the common law standard, requires all charges to contain sufficient particulars of the offence(s) charged. This, at the very least, requires a clear description of the offence, the offender and the place where the offence is alleged to have been committed. Footnote ⁶⁸ The first thing to ask, therefore, is whether or not sufficient particulars were provided on the charge of engaging in a harmful practice to enable Aniva to take his plea and conduct a meaningful defence. In answering this question, the decision of the High Court of Malawi in R v Dennis Spax Kambalame (Kambalame)Footnote ⁶⁹ is relevant. In this case, it was held that section 126 of the Criminal Procedure and Evidence Code (CP & EC) must be read together with section 42(2)(f)(ii) of the Constitution.Footnote ⁷⁰ The result is that charges must contain sufficient particulars to inform the accused of the charge(s) against him and it is this that contributes to the holding of a fair trial. In Kambalame, the High Court struck out some charges because they failed to disclose the persons with whom the accused had allegedly engaged in corrupt practices. A failure to disclose the persons with whom the corrupt practices were committed, the High Court held, meant that the accused did not have sufficient particulars of the charges to allow him to conduct a defence. According to the High Court, any failure to frame the charges properly violates the right to a fair trial under section 42 of the Constitution.

Using the principles from Kambalame, one wonders how the Court convicted Aniva of engaging in a harmful practice. To start with, the charges failed to indicate with which people Aniva had engaged in a harmful practice. By alleging the commission of an offence in a generalized manner, the state failed to provide a charge with sufficient particulars to allow Aniva to conduct a meaningful defence and have a fair trial. The failure to provide details of the people with whom Aniva engaged in harmful practices meant that he was deprived of an opportunity to raise a defence that could have related specifically to named victims. It is also not insignificant that the charge of engaging in harmful practices referred to the offence as having been committed “in villages in Nsanje District” without attempting to narrow down which specific villages were the location of the crime. This should be contrasted with the way the charge of attempting to commit a harmful practice was framed. In respect of this offence, the prosecutor indicated the name of the person allegedly involved as a victim as well as the village, in Nsanje District, where the attempt occurred.

It is also doubtful whether the conviction for engaging in a harmful practice followed from the evidence before the Court. There was only one witness who led evidence on this point: Ntonya Fole. She is the only one who confirmed having had sexual intercourse with Aniva in pursuit of kulowa kufa. The Court, however, found that this intercourse happened before the Act was passed. It correctly refused to apply the law retrospectively and disregarded her evidence. If Ntonya Fole's evidence was disregarded, the question then becomes on what basis Aniva was convicted, as there was no other witness who testified to having had sexual intercourse with him by reason of kulowa kufa. Resolving this question requires consideration of the confession that Aniva made after his arrest, since this was the only evidence implicating him in engaging in a harmful practice.

Confession evidence is admissible in criminal proceedings in Malawi.Footnote ⁷¹ A court may, however, determine how much, if any, weight to attach to such evidence. In Aniva's case, the Court, relying on the judgments in Mulewa v R,Footnote ⁷² Useni and Others v R Footnote ⁷³ and Chiphaka v R,Footnote ⁷⁴ concluded that, “my take is to admit in [Aniva's] evidence the confession based on section 176 of the Criminal Procedure and Evidence Code”.Footnote ⁷⁵

Notably, the Court conceded that the defence brought to its attention the decision in Chisenga v R, where the Malawi Supreme Court of Appeal held that:

The way Aniva's confession was dealt with suggests a disregard for the demands of a fair trial as provided by section 42 of the Constitution. Under section 42(2)(c), the Constitution protects all suspects from being compelled to make statements that can be used in evidence against them. Further, section 42(2)(f)(iv) protects accused persons from being forced to be witnesses against themselves. Against this background, the Court's key finding on Aniva's confession was that:

The Court's analysis, in relation to the admissibility of confession evidence, fails to articulate how the constitutional safeguards, which should have operated to safeguard Aniva from being compelled to be a witness against himself, were trumped. Given that Aniva pleaded not guilty, the prosecution retained the duty to prove all the elements of the offences with which he was charged. The prosecution's duty was not relieved by him exercising his right to silence. Given the centrality of the confession to Aniva's conviction, one would have expected the Court to be thorough in justifying its admission into evidence, especially as the defence objected to the admission of the confession. Unfortunately, the Court's analysis on this point is superficial. The Court simply reproduced precedents that justify the admission of confession evidence and also alluded to at least one precedent, cited by the defence, urging caution in the admission of confession evidence before abruptly concluding that it would admit the confession. There was no analysis, even based on the very precedents cited by the Court, to demonstrate why Aniva's confession was admissible. It is submitted, therefore, that Aniva's confession was wrongly admitted into evidence, thus further strengthening the case for his wrongful conviction on the charge of engaging in harmful practices.

The victim requirement in criminal law, particularly how it was or was not applied in Aniva's trial, also deserves mention. Criminal law focuses heavily on the individual and this is manifested, for example, in the way liability for criminal offences is imposed at an individual level and also in how victims tend to be viewed as individuals.Footnote ⁷⁸ With respect to the offence of engaging in a harmful practice, the state failed to produce a single witness who could prove that she was a victim of Aniva's conduct. As noted above, the failure to find witnesses was, probably, due to a lack of support for the prosecution by the very communities in which the victims and witnesses were supposed to be found.Footnote ⁷⁹ As confirmed by one of the police officers who testified in Aniva's case, in his three years as a police officer in Nsanje District, where Aniva was living, he had received no complaints relating to kulowa kufa.Footnote ⁸⁰

Overall, although Aniva was tried under a specific provision in the Act, his conviction did not follow from the evidence that was led under each of the charges. The charges were also defective for offending the fair trial guarantees in the Constitution.

Why was Aniva denied bail?

Under section 42(2)(e) of the Constitution, every accused person has the right to be released from detention with or without bail unless the interests of justice require otherwise.Footnote ⁸¹ The Bail Guidelines ActFootnote ⁸² details how a court must balance the various factors in deciding whether to grant or deny bail. Courts in Malawi have accepted that there is no unbailable offence but that the interests of justice may, sometimes, require that bail should be denied to certain suspects. As stated in Amon Zgambo v R,Footnote ⁸³ an accused person is presumed to be innocent until his or her guilt has been proven and bail should not be withheld as a form of punishment. The primary consideration that must govern a decision whether or not bail should be granted is an assessment of whether the accused person, upon being released on bail, will return for his trial.Footnote ⁸⁴

As demonstrated above, the manner in which Aniva was treated suggests that he may not have benefitted from the presumption of innocence. Perhaps unsurprisingly, he was denied bail for the duration of his trial. In total, he spent about five months on remand before his conviction. Conceding that Aniva was to be presumed innocent until found guilty, it is hard to imagine the exact demands of the interests of justice that necessitated remanding him until conviction. Aniva's predicament is the more striking considering that Malawian jurisprudence on the right to bail is quite extensive and confirms that bail should, ordinarily, be available for all offences.Footnote ⁸⁵

The reason(s) for the denial of bail, it is argued, were extra-legal. At the outset, the manner in which Aniva was arrested (via a presidential directive) is telling and suggests that the presidency itself had an interest in the trial's outcome. The constant media scrutiny also entailed that the public was keeping a constant eye on what the Court was doing. Given the rather unfavourable media coverage, the trial magistrate, whether consciously or unconsciously, may have felt constrained to grant bail for fear of portraying the impression of lenience towards Aniva. The denial of bail, it is contended, is one way that demonstrates the victimization that Aniva suffered due to the media interest in his trial and in particular the negative reporting about kulowa kufa. Nevertheless, it is arguable that the Court missed an opportunity to demonstrate that fair trial rights extend to all accused persons, irrespective of the offence(s) with which they are charged or their station in life. In a way, while the Court exhorted various rights of women and girls, which must be upheld, denying Aniva bail suggests a selective recourse to human rights.

It is also not insignificant that an appeal was filed on behalf of Aniva against his conviction and sentence. However, he ended up serving his whole sentence and was released before the appeal could be heard.Footnote ⁸⁶ The High Court's “reluctance” to consider Aniva's appeal suggests disinterest in interfering with the findings of the trial court.Footnote ⁸⁷ Given the analysis in this article, there was a realistic chance that Aniva's conviction would be overturned on appeal. This, however, could have resulted in a possible public backlash against the High Court. In fairness, the failure to hear Aniva's appeal could have been due to scheduling challenges within the High Court in a context where judges are perpetually overwhelmed.Footnote ⁸⁸ However, it is also not far-fetched to imagine that the failure to hear the appeal could have been an evasive tactic to avoid the possible public backlash in case an acquittal became necessary.