TSANGA J: The accused was charged with having sexual
intercourse with a young person in contravention of s 70(1) (a) of the Criminal
Law (Codification and Reform) Act [Cap 9:23]. He pleaded guilty to all
the essential elements of the charge put before him. He received the following
sentence as worded by the Magistrate:
“24 months imprisonment of which 16 months are suspended
for 5 years on condition that the accused does not, within that period, commit
any offence involving contravention of s3 of the Sexual Offences Act (Chapter
9: 21) and for which upon conviction the accused is sentenced to a term of
imprisonment without the option of a fine.” The remaining 8 months are
further suspended on condition that the accused marries the complainant.
(My emphasis)
There are three issues arising from the above paragraph.
The first is a point of correction in that the offence was committed in January
2010 at a time when the Sexual Offences Act had already been incorporated into
the Criminal Law (Codification and Reform) Act [Cap 9:23]. Therefore
what should have been cited in the sentence is s 70 (1) (a) of the Criminal
code as had been correctly stated in the charge sheet.
The second issue relates to the scope and framing of the
nature of prohibited behaviour that would bring the suspended 16 months into
action. This I will deal with at the conclusion of this judgement.
The third issue which goes to the root of this review
judgment, centres on the suspension of a further 8 months on condition that the
accused married the complainant. In a White paper, the Magistrate was requested
by BHUNU J to respond to several issues, namely; the competency of compelling
the accused to marry the complainant; if any enquiry had been made into whether
the accused's marriage permitted polygamy; whether the order to marry had been
complied with; and to investigate the possibility of community service. The
response received from the Provincial Magistrate was that the Magistrate who
had passed the sentence had since left service. However, the Provincial
Magistrate agreed that the sentence was improper with respect to the marriage
aspect and sought the court's guidance on corrective measures, given that the
parties were yet to be summonsed and the issue of community service examined.
This review judgement seeks to elaborate on the impropriety
of ordering marriage and to give the necessary guidance requested.
The brief facts were that sometime in January 2010, the
accused, an adult male aged 30 living in Svonge Village in Mberengwa, had
unlawful intercourse with the complainant, his wife's sister, then aged 15, who
had come to stay with them. On the night the offence initially occurred, he had
gone to the hut where she was sleeping and had attempted to have intercourse
with her and she had refused. Undeterred in his resolve by her refusal, and as
persistent as a mosquito, he had gone back again that night with the same
demand, which had then been acceded to. Sexual intercourse had taken place four
times that night. Sometime in February 2010, the complainant had gone back to
her rural area and on missing her period had revealed to her aunt that she was
pregnant and that the accused was responsible. The matter had then been
reported to the police.
The mitigating factors put forward by the accused to the
court included the fact that he had been given the 15 year old complainant as a
wife by her parents for when she became of age. His wife was asthmatic.
Furthermore, he was the one who had educated her. The Magistrate also noted in
his reasons for sentence that there was a smack of a love affair between the
complainant and the accused, which he deemed a strong indicator of the
consensual nature of their relationship.
The critical issue is whether the Magistrate misdirected
himself in ordering eight months of the sentence to be set aside if the accused
married the complainant. Pledging, as can be inferred from the circumstances
described by the accused to the court, is in strict violation of s 94 (1) (b)
of the Criminal law (Codification and Reform Act) [Cap 9:23]. Whilst
this was not the issue before the court, it was in the very least the duty of
the Magistrate to point out to the accused that no regard could be had to the
parents pledge of the complainant as a wife as it was in fact in violation of
the law. The relevant section states as follows:
“(1) (a) lawful custodian of a female person who
(b) at a time
when the female person is under the age of eighteen years, or
without her consent, enters into an arrangement whereby the female
person is promised in marriage to any man whether for any consideration
or not ….…… shall be guilty of pledging a female person and liable
to a
fine up to or exceeding level fourteen or imprisonment for a period not
exceeding two years or both.”
Indeed this provision in the law is also significant from
the point of view of the State's seriousness in complying with the requirement
of Article 19(1) of the UN Convention on the Rights of the Child (CRC) to which
Zimbabwe is a party, that the State should take measures to “protect the child
from all forms of physical abuse or mental violence …..maltreatment or
exploitation including sexual abuse”. Whilst not automatically incorporated
into our law unless done so by an Act of Parliament, international instruments
such as this nonetheless provide significant guidelines and permissible prisms
for examining local legislation against international standards.
Based on what had been disclosed to the Magistrate,
ordering marriage to the complainant amounted to sanctioning a violation of
what the law clearly forbids. Furthermore, in sanctioning an impermissible
marriage, the Magistrate effectively cast aside the protective function of the
law on sexual intercourse with young persons.
While he indeed cited several case law to illustrate the
factors that the courts take into account in assessing sentence in such
matters, these do not appear to have weighed heavily in the ultimate decision.
In Sv Nare 1983 (2) ZLR 135 (H) GUBBAY CJ as he
then was, stated that the offence is aggravated where among other factors, the
accused is much older. At 30 years of age the accused in this case was twice
the complainant's age. The Magistrate's allusion to a consensual relationship
neglects the effects of such a vast age discrepancy on the complainant's
ability to withstand the lecherous advances and persuasions of the accused.
While the closeness to the age of consent of the complaint is also taken into
account, born in June 1995 she was just fourteen and a half when the crime took
place. The age discrepancy and its attendant power dynamics should have been
central in interrogating the unlikelihood of a truly consensual relationship.
The two were at different levels in terms of emotional maturity. Her ability to
stave off his persistent advances would undoubtedly have been weaker.
Indeed in S vs Chuma 1983 (2) ZLR 372, it was
emphasised that to accept love as a mitigatory factor when the disparity in
ages is great and the girl's age is known to the accused is 'to break the ring
of protection accorded complainants by the law'. Frequency of intercourse was
held by KORSAH J in that case, not to be an indicator of genuineness of
affection, but was more likely that of lasciviousness on the part of the man.
Besides age as a weighty consideration, there is also the
critical issue of the relationship between the accused and the complainant.
Indeed the Magistrate pointed out in his reasons for sentence that the accused
was in loco parentis to the complainant. As he put it:
“The complainant regarded him not as a brother but a
father. “
With this critical observation, how then did he purport to
find marriage suitable under these circumstances when a breach of a
relationship of that nature should require a more stern approach in punishment?
In our cultural context where some married men believe the wife's unmarried
sister is equally for the taking, ordering marriage gives a very unhealthy nod
to predatory behaviour and does little to foster attitudes of respect and dignity
towards females in what should be a safe family environment. Ordering marriage
under such circumstances also does nothing towards sending a strong message of
disapproval to such adult males who, behind a cloak of negative cultural
practice, coerce a relative who is a minor into having sexual intercourse. The
fact that the family reported the criminal conduct is indicative of the fact
that they regarded him as having crossed the boundaries of what they regarded
as acceptable behaviour. He was already married to her sister and had five
children. It could not have made for a healthy sibling relationship.
Finally another critical consideration of relevance in such
cases involving minors is whether pregnancy resulted. In this case, the
complainant fell pregnant, a factor which added to the seriousness of his
conduct. The accused's coercive actions, stemming from the advantage he had
over her catapulted the complainant into adulthood by thrusting her into
motherhood with all the attendant risks of doing so at a young age. Her
education was interfered with. His actions further deprived her of the
opportunity to develop her sexuality progressively on her own terms.
Given that surrounding circumstances are indeed of
paramount importance in arriving at any decision, if the Magistrate was swayed
in ordering marriage and setting aside part of the sentence, by the stark
reality that the complainant had fallen pregnant, and had little capacity and
no resources to fend for herself, there is no indication that her views were
heard on this matter. His decision appears not to have been determined by any
articulation on her part of what would be in her best interests but by
averments which highlighted the complainant's father's interests in that he had
effectively pledged her, and the accused's own interests in that he had an
asthmatic wife and presumably needed a healthier one. His marriage offer might
also have been influenced by his need to avoid a custodial sentence. There is
nothing in the record that suggest that her views were ever factored into this
unbalanced equation in terms of whose interests were being served.
Giving a voice to the complainant in this matter remains
vital. If a marriage has taken place, it remains critical for the incumbent
Magistrate to ascertain that she is not in it because she was pledged or
because the court wrongly ordered the accused to marry her.
As she is by now a major, it is also necessary to
ascertain, assuming a mutually consensual relationship, that the accused's
marriage permits polygamy so that no law is being broken.
As regards the accused, while it would not be competent to
order incarceration in light of the sentence he had received, it is still
necessary to send a strong disapproving message about this prevalent conduct
where, as in this case an adult family man uses his power to take advantage of
his wife's minor sibling or where in general adult men take undue sexual
advantage of minors with their seeming consent. The Magistrate is ordered to
effectively look into the issue of appropriate community service to substitute
the incompetent order to marry. Given the sexual nature of the offence the
accused was charged with, care should be exercised to ensure that any community
service ordered does not expose vulnerable groups to risk such as would be the
case by ordering him to work in a school environment for example.
Since the accused was found guilty of committing a sexual
offence, in order to ensure that the conditions of the suspended sentence take
into the broad spectrum of sexual offences, the sentence is corrected to read
as follows:
“ 1. 24 months imprisonment of which 16 months are
suspended for 5 years on
condition that the
accused does not, within that period, commit any offence of a
sexual nature in
contravention of relevant provisions of Criminal Law
(Codification and Reform)
Act Chapter (9:23) and for which upon conviction, the
accused is sentenced
to a term of imprisonment without the option of a fine. The
remaining 8 months are
further suspended on condition that the accused performs
appropriate community
service at a place and for a duration to be determined by
the magistrate.”
1. The matter is remitted to
the Trial Magistrate for him to determine the appropriate community service
consistent with the above amended sentence.
BHUNU
J
agrees
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