This
record was forwarded for review by the Provincial Magistrate in charge of
Mashonaland West Province with the following comments:-
“The
accused, a 15 year old juvenile, was convicted of Contravening Section 70 of
the Criminal Law (Codification and Reform) Act [Chapter 9.23]. It being alleged
that he had sexual intercourse with a young person under the age of sixteen.
The sentence was picked up by this office from one of the daily newspapers. The
conviction of the accused seems to be improper and unsupportable. Vide, S v CF
(A Juvenile), HH143-11. The magistrate also ordered the accused's father to
surrender his National Identity disc as assurance that the accused carries out
the sentence of community service. It appears this amounts to punishing a
parent for the child's wrongdoing.
May
we be guided by the Honourable Judge of the High Court.”
The
facts in the present case were that on the 15th October 2013, at
1700hrs, the 15 year old accused who, was in Form 1, met and fell in love with
a 14 year old girl when he was from the grazing areas. They agreed to meet near
the complainant's place at 1900hrs the same day. They then engaged in consensual
sexual intercourse. They were caught by the girl's mother who was looking for
the girl since she had delayed coming home.
The
accused ran away.
The
boy was then charged and convicted, on his own plea of guilty, of contravening
section 70(1)(a) of the Criminal Law Code. He was sentenced on 22 October 2013
to 3 months imprisonment which was wholly suspended on condition that the
accused performs 105 hours of community service. The community service was to
commence on 9 December 2013 and to be completed within 3 weeks. A further order
was for the father to surrender his ID card as surety that the accused will
perform the community service. It therefore follows that the accused must have
completed the sentence by now.
This
review judgment deals with the issue of whether under section 70(1)(a) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23], a male young person
can be competently convicted of engaging in extra-marital sexual intercourse
with a female young person. As properly cited by the Provincial Magistrate, the
same issue was adequately dealt with in the case of S v CF
(A Juvenile) HH143-11 by KUDYA J as well as the case of S v Juvenile (RPS) HC18
/03 where NDOU J said:
“Whilst
it might be a bitter pill to swallow for parents, youngsters aged under sixteen
can freely indulge in sexual activities outside criminal sanctions of the
Sexual Offences Act as long as the sexual act is consensual. This does not seem
ideal in this era of HIV/AIDS. There is nothing criminal about accused's
conduct although morally and religiously reprehensible.”
The
above remarks were in respect of the Sexual Offences Act which is now repealed.
However, section 70 of the Criminal Law (Codification and Reform) Act [Chapter
9:23] did not change the position pronounced by NDOU J, supra. If proper
consideration and due regard had been given to the above cited cases,
prosecution would not have been warranted in this case.
Like
in S v
CF (A Juvenile)
HH143-11 the review was done after the accused had completed the sentence hence
the punishment could not be reversed. I believe even the father by now has
collected his ID disc from the Clerk of Court. He too was inconvenienced
unnecessarily by that order. KUDYA J suggested two options that are now
available on review. I totally agree with him. The first is to quash the
proceedings and set aside the sentence so that the juvenile is not saddled with
a criminal record. The second is to prevent other similar placed juveniles from
suffering the same fate as the present juvenile.
Accordingly,
it is ordered that:
1.
The conviction and sentence imposed on the juvenile is hereby quashed.
