The hearing of an appeal case of an HIV-positive Eric Aniva who was sentenced to two years in jail with hard labour for having unprotected sex with newly bereaved widows and has already served his half sentence in prison, failed to kick off on Tuesday after High Court judge Sylvester Kalembera disqualified himself from hearing the appeal.
Kalembera said he cannot sit in the bench to hear the appeal despite having already dealt with the matter during confirmation.
Deputy registrar of High Court of Malawi and Supreme Court of Appeal, Agness Patemba said another judge will be assigned to take up the case.
Private practice lawyer Michael Goba Chipeta representing Aniva, known in Malawi as a “hyena”, said he appealed against the conviction and the sentence, saying the Blantyre Magistrate’s Court erred in law when in November last year sentenced Aniva to two years imprisonment with hard labour on charges of indulging in harmful cultural practices and an attempt to commit the same offence contrary to Section 5 sub-sections 1-2 of Gender Equality Act of 2013.
Goba Chipeta argues that the lower court erred in sentencing Aniva as the convictions on which the sentences were based were erroneous and wrong in principle.
“The lower court held that the practice of Kulowa Kufa [widow cleansing ] is a harmful practice as defined under the Gender Equality Act, when there was no evidence supporting the court’s reasoning and conclusion,” reads the appeal petition of appeal in part.
The practice of “widow cleansing”, when a widow must have sex after her husband dies, was outlawed a few years ago.
Aniva’s lawyer also argues that the prosecution had failed to prove an essential element of the offence and that the totality of the evidence before the court showed that Aniva’s conduct did not amount to the alleged attempt.
Aniva, . 46 year-old, admitted in a BBC documentary that he had had sex with women and girls in traditional “cleansing” rituals.
His case was brought to court after he spoke to the BBC about his role as a “hyena”. In parts of southern Malawi, hyenas are paid by families to perform a cleansing sexual ceremony with widows to “exorcise evil spirits”.
Parents also pay them to have sex with their adolescent daughters to mark their passage into adulthood.
He was arrested on July 25, 2016 following President Peter Mutharika’s directive.
In sentencing, Magistrate Innocent Nebi said Aniva “had no regard to the feelings of widows, no regard to dignity of women and it is even doubtful that condoms were used … Such a culture has no place in Malawi.”
Despite some success in reducing HIV prevalence rates in Malawi, more than 9% of the country’s 15- to 49-year-olds are infected with the virus.
Aniva hails from Tosina Village, Traditional Authority (T/A) Mbenje in Nsanje.