Malawi High Court Judge Dingiswayo Madise, in his recent ruling, also lambasted global health NPO Population Services International (PSI) which runs a voluntary circumcision campaign in Malawi aimed at reducing the spread of HIV/Aids, for defending the case.

He said the NPO should be “ashamed” that it had wasted the court’s time  when there was clear evidence, not challenged, that the boys had jumped into a motor vehicle, not knowing where they were going, and were circumcised at a health centre without the consent of their parents or legal guardians.

The judge said it was “insulting to the administration of justice” that PSI had claimed that a woman in the vehicle had “given consent”. “Who was this woman? She did not come to give evidence,” Judge Madise said.

Evidence during the trial was that the young friends had been on their way to school in May 2018, when they passed a vehicle, playing music. The driver invited them to come on board. He did not tell them where they were going. One of the boys said he was thrilled because he did not often get an opportunity to ride in a vehicle; the other said he was lured by promises of a “bag and soap”.

When they arrived at the health centre they were then told they were going to be circumcised. Both told of the pain of the procedure. The 12 year old said he had wanted to leave but he was afraid that his friends would laugh at him, and he would not receive a bag. Once the procedure was done, both boys said they were given a bag containing soap and some pain killers and dropped back at the place they had boarded the vehicle. 

Both said they experienced complications. One was admitted to hospital and did not attend school for two weeks; the younger one missed so much school that he failed his exams and had to repeat standard three.

The boys and their guardians and parents, who also testified during the trial, said they had no underlying health conditions which warranted the procedure and their faith and tribes did not make circumcision mandatory.

In opposing the claim, PSI said children under the age of 16 could give consent to a medical procedure provided they understood the nature of the treatment. The two boys had admitted that they boarded the vehicle without being forced since it was a rare opportunity for them to ride in one. A woman in the vehicle had signed the consent forms and PSI believed there had been consent.

Judge Madise said the defence amounted to an abuse of process and PSI should have settled the matter outside of court. “I am in agreement with the claimants that the circumcision was non-therapeutic, non-emergency, non-religious and non-cultural…..and was done without consent. This was unlawful….assault and battery,” he said. The judge ordered that the claimants must issue summons for an assessment of their damages within two weeks and that PSI must pay their costs.

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