IRLI recently went to the women’s prison in Lilongwe to celebrate Human Rights Day with the 120 women who are being detained there, including women accused of infanticide. Infanticide was first introduced as a distinct offence in 1922 with the enactment of the Infanticide Act in England and Wales, which limited infanticide to neo-natal killing.
In 1938 this was extended to cases in which the infant was 12 months or below. Prior to the introduction of a distinct offence of infanticide, there was no offence for the unique set of circumstances which tend to characterise neonatal and infant killings by their mothers. Women were therefore charged with murder and if found guilty were subject to a mandatory death sentence which was then commuted, a practice known as the “black cap farce”.
In Nyasaland (present day Malawi) the exact same offence was enacted as part of the Penal Code. Section 230 Penal Code replicates, Infanticide Act 1938, by providing that where the biological mother causes the death of her child aged under twelve months and where the mother’s mind was disturbed because of the effect of giving birth or lactation, she is to be sentenced as if she was guilty of manslaughter with a maximum sentence of life imprisonment. The offence is limited to the psychological effects of giving birth and lactation and does not include broader circumstances consequent upon the birth: socio-economic factors, trauma following abandonment, social stigma, or conception as a result of rape.
Historically the typical defendant in an infanticide case was unmarried, had become pregnant unexpectedly, had tried to conceal the pregnancy, and then killed the baby immediately following the birth. This was in the context of conservative social norms and societal attitudes which viewed such pregnancies and mothers as “illegitimate”. In many cases local people would report the woman to the police when they noticed she was no longer pregnant but there was no baby. In Malawi this continues to be one of the main mechanisms through which women find themselves charged with infanticide when in fact they have had a miscarriage.
Infanticide cases tend to overlap with two less serious offences: concealing the birth and abortion. In one case at the women’s prison, a pregnant woman who had induced her pregnancy at 8 months because of extreme poverty as a result of abandonment had been charged with infanticide. Local women noticed she was no longer pregnant and reported her to police. Police chose to charge the woman with infanticide notwithstanding the absence of the elements of the offence. Abortion continues to be an offence under Malawian law with a maximum 7 year sentence with the only exception being the preservation of the mother’s life.
When a distinct offence of infanticide was introduced the legislative intention was that women accused of infanticide be treated humanely, typically leading to a non-custodial sentence upon conviction. Women accused of the offence in Malawi are treated in a manner which is indistinguishable from murder cases with women potentially spending years in pre-trial detention. This entirely undermines the humane intent underpinning the introduction of the offence and exemplifies how legal provisions when viewed outside their historical context can become entirely unmoored from their original legislative intent.
By Macdara Ó Drisceoil,
Programme Lawyer – Legal Aid Bureau.