The High Court sitting in Blantyre has found an international organization, Family Health Services, formerly Population Services International (PSI) guilty for unlawfully conducting circumcision service to two minors (names withheld).
According to court documents, Peter Muloza and Mary Honda, acting as litigation guardians, claimed that PSI circumcision on the minor without first getting informed consent from their parents or guardians.
The circumcision was performed as part of the Voluntary Male Medial Circumcision (VMMC) campaign.
The court heard that on May 24, 2018, while publicizing the voluntary male circumcision services in Manyowa, Blantyre, PSI employees stopped the vehicle and took the minors to Pensulo where they were circumcise without first getting the informed consent of the parents or guardians.
The children were on their way to school.
The first minor told the court that the vehicle took them to Pensulo Health Centre where upon arrival they were led into a tent. Whilst in the tent anurse/clinician explained to them that they will be circumcised and that they will be given a bag and soap. The nurse also demonstrated how circumcision is done.
However, he said, he did not tell them that they will feel pain and that they will forever have no foreskin. He did not tell them about the risks or dangers associated with circumcision. The nurse/clinician later gave forms to a certain woman with whom they had boardedthe Defendant’s motor vehicle and asked her to sign forms for all the children who were not accompanied by a parent.
He said neither was the form given to him nor were its contents explained to him. In fact at no point in time did he touch the form. Circumcision was performed on him by a lady nurse/clinician followed by suturing and dressing of the wound. After the above mentioned procedure had been performed on him, he was given a bag containing soap, a pant and 10 packets of Panadol. The vehicle took him back and dropped him at the same place where he had boarded it.
He further said that upon arriving home, he took the Panado to reduce the pain he was feeling.
On the second and third day he felt severe pain and the Defendant took him to Malmed Clinic in Blantyre.
He was accompanied by his parents. He was admitted at Malmed for 3 days where treatment included intravenous therapy. The treatment he received was not recorded in his health passbook. The same was recorded in the hospital file. His father was denied access to the records.
All hospital expenses were settled by PSI. He did not go to school for close two weeks as the wound took long to heal and he was still feeling pain. Because it was time for examinations, he forced himself to go to school in the third week.
The court further heard that there was no any underlying health condition that required him to undergo the circumcision that was done on him neither was there a religious or cultural need that he do so.
His faith as a Christian of the C.C.A.P. denomination and his tribe as a Mang’anja does not make it mandatory that one be circumcised.
The two minors then sought court’s intervention claiming damages for assault and battery, pain and suffering, damages for disfigurement and/ or deformity, damages for violation of the Minor Claimants’ right to personal security, self-determination, privacy and bodily integrity.
Their action was founded on the torts of battery/assault, negligence and violation of the minors rights to personal security, self-determination, privacy and bodily integrity.
The claimants further argued that PSI owed the the minors a duty of care which was breached and as a result, they suffered pain, injury and damage.
“In addition to physical injury, PSI negligence also resulted in the claimants human rights being violated. In the circumstances, PSI committed a battery against the claimants,” argued the claimants.
The court further heard that one of the minors had no any underlying health condition that required him to undergo the circumcision that was done on him neither was there a religious or cultural need that he do so and that his faith as a Christian of the Seventh Day Adventist Church denomination and his tribe as a Sena does not make it mandatory that one be circumcised.
Through they challenged the litigation, PSI did not parade any witness to their defense.
High Court Judge Dingiswayo Madise blamed PSI for abusing the legal process through their actions.
“The Defendant could have settled this matter outside court. The Defendant should be ashamed that they defended this matter. Why do I say so? There is clear evidence which has not been challenged that the boys jumped into this motor not knowing where they were going. They arrived at the health Center without their parents or legal guardian. The nurses proceed to start the process of circumcision without seeking consent from the parents or legal guardian.” reads part of the ruling delivered on December 2, 2022.
justice Madise further said he found it insulting to the administration of justice that PSI stated in their defence that the woman who was also in the vehicle gave consent.
“Who was this woman? She did not come to give evidence. The Defendant claims he had no way of knowing that the woman was not a parent or legal guardian. For this court to be writing this judgment is surely a waste of the precious time of the court.
“As per the law, I need not investigate this matter any further. On a balance of probabilities, I’m in agreement with the Claimants that the circumcision service relating to the minor Claimants herein was non-therapeutic, non-emergency, non-religious and non-cultural,” he said
He further said the action tantamounted to assault and battery.
“The tort demands that a defendant must owe the claimant a duty of care and there must be a breach of such a duty which result in the claimant suffering damage.
“The fact that the defendant positively responded to the call and took 1st Claimant to Malmed Clinic in Blantyre that in itself does not cure the tortious acts,” reads part of the judgement.
He awarded damages, to be assessed within 14 days and costs to the claimants.
Since 1994, PSI Malawi, with support from the American, British and German governments, implements programs with a multidisciplinary approach to social and behavior change that draw upon the tenets of public health, marketing, behavioral economics and human-centered design.