NDOU J: The
accused was convicted by a Western Commonage Provincial Magistrate of two
counts of kidnapping or unlawful detention as defined in section 93 (b)(ii) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 8 years imprisonment of
which 2 years were suspended on the usual conditions of future good behaviour
(both counts were treated as one).
The background facts are the
following. The accused and the
complainants are not related. The
accused is a human courier. He
transports human beings to South Africa.
On the 11th May 2010 the two complainants aged 15 years and
17 years respectively ran away from their parents' homes and went to stay with
the accused pending transportation to South Africa. They did not go there against their
will. They went there of their own
volition. If they were adults, there
would have been no offence. But because
they were juveniles the accused committed the offence charged because section
93 (1)(b)(ii) provides:
“Any person who –
(a)
…
(b)
(i) …
(ii) detains or keeps a
child, intending to deprive the child's lawful custodian or his or her
control over the child or realizing that there is a real risk or possibility
that such deprivation may result;
shall be guilty of kidnapping or unlawful detention …” (emphasis added)
It is
common cause that the girls' parents/guardian did not agree to relinquish their
control over the minors.
On May 2010 the accused took the two
juveniles to South Africa. He used a
cross-border courier to smuggle the girls to South Africa. The accused did not pay the latter for his services
once the girls were in South Africa resulting in the latter detaining the girls
pending payment. When such payment was
not forthcoming from accused the courier fortunately, smuggled the girls back
to Zimbabwe. During the course of trial,
after state witnesses testified, the accused decided to plead guilty. The accused was, therefore, properly
convicted.
The evidence clearly established
that although the girls went with the accused willingly, the mischief sought to
be prevented under section 93(1)(b)(ii) is deprivation of the lawful guardian
of the child his or her control over the child.
If the children had been forced, the charge would have been under
section 93(1)(b)(i). All essential
elements under section 93(1)(b)(ii) are present in this case. The conviction is proper. The learned magistrate did not make a finding
whether the offence was committed in aggravating or mitigating
circumstances. This is a mis-direction
on his part.
Section 93(3)(a) defines aggravating
circumstances if-
“(i) the
kidnapping or unlawful detention was accompanied or motivated by the demand of
a ransom for the safe return of the adult or child; or
(ii) the
kidnapping or unlawful detention was accompanied by violence or the threat of
violence;”
As alluded to above, there was no
violence or threat of violence as the girls went to the accused voluntarily in
a bid to seek fortune in South Africa.
There was no ransom sought by the accused. In the circumstances it can safely be found
that the kidnapping or unlawful detention was committed in mitigating
circumstances. This finding informs the
sentence applicable. The penalty clause
under section 93(1) provides-
“… and liable –
A.
To
imprisonment for life or any shorter period, except in a case referred to in
subparagraph B; or
B.
Where
kidnapping or unlawful detention was committed in mitigating circumstances
referred to in paragraph (b) of subsection (3) to a fine not exceeding level
seven or imprisonment for a period not exceeding two years or both.”
The wording of this penalty clause is such that
notwithstanding my finding that there are mitigating circumstances, the penalty
under subparagraph A applies. This is so
because the accused is neither a parent nor close relative of the two
girls. Because of the above-mentioned misdirection
I am at large as far as sentence is concerned.
The sentence of 8 years is manifestly excessive and I set it aside. The accused is a first offender. He is of poor health. He has a wife and one child and five
dependants. He was trying to assist
these juveniles to cross to South Africa.
However this is a serious criminal conduct. Many young people from this region are
deserting their parents or lawful guardians to go and seek fortune in South
Africa. In most cases the children end
up in abusive circumstances. These
children had no passports. Accused
abandoned these children in South Africa.
The accused hired someone to smuggle them into South Africa. Cases of human trafficking of children are
prevalent and a deterrent sentence is called for. Accordingly, the accused is sentenced as follows:
“Both counts treated as one -
4 years imprisonment, of which 2 years is suspended for 4
years on condition that the accused in that period does not commit an offence
involving kidnapping or unlawful detention and for which he is convicted and
sentenced to imprisonment without the option of a fine.”
Cheda J
………………………………………………. I agree
