The Judiciary and Gender Implications of COVID-19

*Fiona Atupele Mwale, LLM Judge, High Court of Malawi “Gender inequalities exacerbate outbreaks, and responses that do not incorporate gender analysis exacerbate inequalities.” (Smith 2019). Although Malawi has not imposed a mandatory lockdown as of this writing, a number of institutions—government and non-governmental, have imposed a system in which staff members are rotating with many operating from home a number of days a week, an attempt to “slow down” the spread of infections as it were. From evidence across the globe in countries which have imposed lock down measures, domestic violence which for the most part is perpetrated against women by men, has risen exponentially. Women are now trapped at home with their abusers. Although I have not experienced in the courtroom any such cases, my experience on the UN Women Ending Violence Against Women Advisory Group for Eastern and Southern Africa (which engages stakeholders for strategy intervention on the region) has shown that even in this period where men are at home more, some instances of domestic violence have been reported to the police. In Malawi, no research has been concluded yet, but it is projected that once the pandemic progresses and once a lock down is imposed, the numbers will rise. Hotlines are being set up for this purpose as are other response mechanisms, which once in place, could overwhelm the criminal justice and the courts should equally be ready to respond. Criminal matters are not the only ones in which women will be disproportionately affected. Considering that women work in predominantly different industries to men, the sector that has been most hit by job losses is the sector with high levels of women, often receiving less pay and benefits. Domestic workers who commute, flight attendants, waitresses, flight attendants, hair-dressers, beauticians etc. are amongst those that are likely to suffer job losses and require court intervention to enforce their rights upon termination of employment where they were employed in the formal sector and their basic human rights for those in informal employment. Social Cash Transfer schemes are in operation for those who are unable to access their income in these times, however, unequal distribution in view of the large numbers of the women involved can be anticipated and these violations too shall require redress. The virus is not gender blind, the response to it should not be either. In my earlier blog entry, I highlighted some of the current challenges faced by the courts in Malawi, and I made general recommendations on how to handle these challenges. As evidence has suggested, women’s access to justice in a time of COVID-19 require gendered focused mechanisms to address the interplay of intersecting challenges. Below are some recommendations for how courts can address these issues. Recommendations All violence against women and children matters should be treated as urgent. Sensitization/training of all court staff on gender implications of COVID 19 and implementation of social distancing measures in urgent matters. Consideration should be made for female witnesses or litigants who bring their babies to court and have them on their backs during the proceedings. This is a matter to be discussed with the Department of social welfare for an efficient solution. Consider fast tracking violence against women matters to ensure that women do not have to return to homes with violent abusers. Conclusion There is an indication from global projections that gender-based cases will increase during the pandemic and that the judiciary will be overwhelmed. It is therefore crucial that the Malawi judiciary undertakes a comprehensive analysis of access to justice and COVID-19 incorporating a wide scope of justice stakeholders and health experts. A capacity assessment of the courts is crucial at this stage to ensure that the Judiciary is ready to respond efficiently when the cases start rolling in. Fiona Atupele Mwale is a High Court Judge in Malawi and a former Fellow of the Hubert Humphrey Fellowship at the Washington Collection of Law at American University, Washington, DC. The views expressed in this entry belong entirely to the author.

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