CHAREWA J: The facts and
the sentencing regime for these two cases being very similar, I considered it
appropriate to issue one review judgment for both.
Both accused are mature adults, more than 30
years old. Both had sexual intercourse with young persons, to wit, girls aged
15 years, about half the accused's ages. They both impregnated the young
girls. Fortunately, both girls did not
contract STIs or HIV. The only difference was that one accused took the young
girl for his wife, an aggravating circumstance as I will discuss later. The
other gave the young girl $2.00 and $1.00 after he had had his way with her.
Both accused were charged
with contravening s 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], having sexual intercourse
with a young person. Both were tried by the same magistrate, and sentenced to
24 months imprisonment of which 12 months were suspended for 5 years on the
usual conditions for such cases, remaining with 12 months effective.
The convictions were
proper, and the reasoning of the magistrate for sentencing purposes, based on current practice, can, hardly
be faulted. However, the level of sentences handed down belie the magistrate's
reasoning, particularly with regard to aggravating factors. Moreover, to say
that the sentences handed down appear to trivialize the protective measures for
young persons prescribed in our law and in the current international framework
for safeguarding young persons is an understatement. Further, it seems that the
magistrate appeared to go by rote and refrained from freely applying his mind to
the developments in the law and best practices on the protection of children,
both locally and internationally. In particular, I note a worrying trend that
judicial officers seem not to be aware that, s 327 (6) of the Constitution of
Zimbabwe Amendment (No. 20) Act 2013 (the Constitution), requires them, in
interpreting legislation, to adopt any reasonable interpretation that is
consistent with international conventions, treaties, agreements that are
binding on Zimbabwe.
In passing sentences for
these kinds of offences, therefore, in addition to the usual reasons for
sentencing that have evolved in our jurisdiction, which, to his credit, the
magistrate in the present cases, took into account, judicial officers ought also
to take into consideration the following:
Firstly, domestic law has
seen fit to prescribe extensive provisions for the protection of children, for
which judicial officers must not be seen to be giving mere lip service. Chapter
2 of the Constitution, sets out national objectives, of which s 19 prescribes
the protection of children as one of these national objectives. Section 19 (1)
requires the State, to adopt policies and take measures to ensure the
paramountcy of the best interests of children.
Section 19 (2) (c) requires that policies and measures
are taken.
“…to ensure that children are
protected from maltreatment, neglect or any form of abuse.” (the
emphasis is mine)”
Section 78 (1) proscribes
marriage for persons under 18, providing as it does, that only persons who have
attained 18 years of age can found a family.
Chapter 4, contains the declaration of rights
where in Part 3, s 81 specifically prescribes the protection of children's
rights. Section 81 (1) (e) provides that children must be protected from
“…economic and sexual
exploitation….and from maltreatment, neglect or any form of abuse”. (the
emphasis is mine)”
Sub-section (1) (f)
guarantees children's rights to education and health care while sub-section (2)
declares that the best interest of children are paramount. Finally, sub-section
(3) declares that
“Children are entitled to adequate
protection by the courts, in particular the High Court as their upper
guardian.”
It is trite that the
judicial service is but one of the pillars of State. Therefore the general constitutional
duties and obligations placed on the State apply equally to the conduct of
judicial officers in their dispensation of justice. It therefore behoves on
judicial officers to ensure paramountcy of children's interests in all
proceedings before them, including handing down appropriate sentences that
deter those preying on children to refrain from doing so in order to give the
maximum protection accorded to children by law.
The questions judicial
officers must always ask themselves in sentencing predatory adults who sexually
exploit young persons should be: what message is the judicial service sending,
when a person more than twice the age of a child, is sentenced to serve a mere
12 months in jail? Is it in the paramount best interests of young persons to
hand down a sentence that seems to suggest that were it not for S70 of Cap
9:23, this conduct would be perfectly acceptable?
More particularly, the specific
obligation placed on the courts, and the High Court in particular, by s 81 (3) made
me consider that it may be high time that the courts had a serious relook at
the sentencing regime for sexual offences so that the message is clearly sent
that the courts, in the discharge of their protective mandate for young
persons, find that it is totally unacceptable to sexually exploit young
persons. This is especially pertinent for offences committed against those young
victims aged between 12 and 16 who were directly or impliedly assumed to have
“consented” to the sexual violations. The courts must be seen to apply the law
in a manner that achieves the intended aim of the legislature in these cases: that
is, to effectively protect children from predatory older persons and ensure the
eradication, or seriously attempt to eradicate the problem.
Secondly, Zimbabwe is
part of the international consensus that, effective and full protection must be
accorded to children to ensure their health, education and consequent full
realisation of their potential as participants in socio-economic and political
development.
In that regard,
regionally, Zimbabwe is signatory to the African Charter on the Rights and
Welfare of the Child, which defines anyone under 18 as a child. The preamble,
in paragraph 4 notes that children require special safeguards and care on
account of their physical and mental immaturity. Paragraph 6 reinforces the
need for legal protection (my emphasis) of children to ensure particular
care with regard to their health, physical, mental, moral and social
development. Article 4 echoes our Constitution in directing that in all
processes, it is the best interests of children that are paramount. Articles
11, 14 and 16 emphasise children's rights to education to promote development
of a child's personality, talents and mental and physical abilities to the
fullest potential; the child's right to physical, mental and spiritual health;
and protection against sexual abuse. Article 21 goes to the extent of requiring
member States to pass legislation specifying the minimum age of marriage as 18
in order to enhance the protection of children.
Further, Zimbabwe has,
for decades, had a Commissioner seating as a member of the African Committee of
Experts on the Rights and Welfare of the Child, set up to ensure the promotion
and protection of children's rights on the continent. In addition, the current
African Union Ambassador against Child Marriages is Zimbabwean. Zimbabwe
currently holds the chairmanship of the African Union, with the mandate to
ensure meaningful compliance with African Union legal frameworks, and in so far
as these cases are concerned, the effective implementation of the African protective
framework for children.
On the wider
international platform, Zimbabwe has ratified the Convention on the Rights of
the Child, thus subjecting itself to the rigours of regular examination and
review of its child protection record by the United Nations Committee on the
Rights of the Child. The review process focuses, among other issues, on the
prevalence of sexual exploitation and abuse of children and forced or early
marriages of young girls.
Increasingly, in various
regional and international judicial colloquia, it has been recognised
that domestic judicial officers must, when dealing with cases which impact on
the human rights of children in particular, take cognisance of best practices and
standards elsewhere including international standards set by regional and
international treaties and conventions to which their country is party. In our
jurisdiction therefore, judicial officers must, in the discharge of their
mandate, take into account the norms and standards that Zimbabwe has subscribed
to in the treaties and conventions it has ratified.
The NewsDay newspaper of 15 January 2016 reported in its Southern Eye
supplement at p.7 that
“Zimbabwe is one of the countries
battling an increasing number of child rights abuses, including rape, forced
early marriages……”
It is therefore incumbent
upon judicial officers to play their part in improving the country's record by
seriously shouldering the obligation that S81(3) of the Constitution puts upon
the courts to protect children by passing sentences which effect is to ensure
that would be marauding adults stop targeting vulnerable and immature young
persons. Further, in order not to belittle or contradict the country's advocacy
and agitation for the protection of children in the wider sphere, judicial
officers must be in consonance with the national position by not ignoring or
minimising such protection through appropriate jurisprudential pronouncements.
Section 327 (6) of the
Constitution effectively means that, gone are the days when it was enough for a
judicial officer to be insular in his jurisprudence, but that attention must be
paid to international best practices, particularly on matters that impinge on
the rights of vulnerable groups, such as children. The current position that
Zimbabwe holds on the African continent requires judicial officers to rise to
the responsibility that go with it and help, if not lead, in setting judicial
standards and benchmarks for the protection of children.
In casu, therefore, sentencing
a plus 30 year old man to an effective 12 months imprisonment for having sexual
intercourse with a young person of 15 can hardly be aimed at deterring other
older men from preying on young and immature persons, who are swayed by the
offer of $1-00 or $2-00, in these harsh economic times. The very fact that a
young person “agrees” to sexual intercourse with a much older men for such a
paltry amount is clear evidence of her immaturity and incapacity to make an
informed choice or decision. As Gubbay CJ stated in S v Nare 1983 (2) ZLR 135
(H), the offence is aggravated where the accused is much older. This is
because, per Tsanga J in S v Ivhurinosara Ncube HH 335-13 at p. 3:
“The age discrepancy and its
attendant power dynamics (are) central in interrogating the unlikelihood of a
truly consensual relationship.”
Nor can a promise to
marry, or even eventual marriage of the child be, in my view mitigatory. This
is because, firstly, as stated by Tsanga J in S v Peter Chigogo HH 943-15
at p.2, s 70 (1) (a) penalises extra marital intercourse with a young person,
and at the time of the commission of the offence, the accused was certainly not
married to the complainant. I therefore fully subscribe to Tsanga J's further
comment that
“The continued lenient attitude
towards grown men who abuse young girls and then get off lightly with their
offence on the basis of “intended marriage” of the complainant is not in
consonance with the spirit of the constitution in discouraging marriage of girls
below the age of 18.”
Indeed, I share Tsanga
J's concern that child marriages are unlikely to end where the courts continue
to pass sentences that go against the intended letter and spirit of the constitution
and international instruments to which Zimbabwe has subscribed.
I find it particularly
aggravating that the much older accused person in Review 4727/15 divorced his
wife and made this child “wife” look after his two children, who included a 4 month
old baby, at a time when she herself was a pregnant child.
It is my view therefore
that judicial officers should not look with favour on these much older men who
“marry” or intend to marry these children for purposes of sentencing as this
attitude from the bench would seem to be promoting child marriages, which our
constitution and the international instruments which Zimbabwe has ratified
frown on.
That the accused persons
were both married men with 4 and 2 children, is in my view, aggravating rather
than mitigatory. Such mature persons ought to take their obligations as married
fathers seriously enough to want to protect their families. That they did not
consider the plight of their families as a damper on their sexual abuse of
young persons, is the height of irresponsibility and carelessness, which they
should not to be allowed to hide behind to escape a just punishment. In S v
Onismo Girandi HB 55/12, the need to send a signal to society that courts
will descend heavily on child sexual abusers was emphasised, with the court
exhorting that a sentence of not less than two years should be imposed. More
than three years later, there appears to be no slackening off of the rate of
commission of these offences, requiring the courts to effectively discharge their
obligation under s 81 (3) of the Constitution more forcefully.
I agree with the trial
magistrate that the fact that the victims fell pregnant adds to the aggravating
factors of the two cases. Indeed, these are young persons whose bodies are still
developing and not yet mature enough to carry a pregnancy without added risk to
their health. It is a matter of public information that maternal mortality
rates in young persons are higher than in mature women. Other health challenges
may also ensue from the early pregnancies and subsequent child births that the
young persons' immature bodies will be subjected to, including vaginal fistula
and haemorrhoids.
I also agree with him
that, in addition, the accused persons interfered with the education of the
complainants, one of whom was in Form 3 and the other in Form 1, thus limiting
their prospects for self-advancement.
Looking at the
aggravating features that the magistrate rightly took into account, I am unable
to understand how after such a well-reasoned analysis, he came up with such
lenient sentences. It is up to judicial officers to show that the courts will
not tolerate predatory older men who prey on young persons by handing down
appropriately severe sentences.
The prevalence of these
type of offences, the consequential incalculable damage they cause in
preventing young persons from attaining their full potential, the damage to the
social fabric, coupled with its impact on national development and the need to
conform to international standards in the protection of children ought to be
additional grounds for handing down deterrent sentences.
When the aggravating
features considered by the magistrate are
considered together with the additional issues I am urging judicial
officers to take into account when considering reasons for sentencing, and following
on from S v Onismo Girandi (supra), I
would add that an effective sentence of not less than three years should be
imposed, on an incremental basis for those accused who are twice the victims'
ages, are married with children of their own, and impregnate the young persons
or infect them with sexually transmitted diseases other than HIV.
In the result, I am
unable to certify that the sentencing regime was in accordance with real and
substantial justice, and I accordingly withhold my certificate.
I direct that this
judgment be circulated to all magistrates for their information and attention.
TSANGA J
agrees…………………………….
