BERE J: The facts in this case which has prompted this
appeal are most unusual and are a constant reminder of how gullible some
parents can be. The facts as summarised by the complainant are as follows:-
Upon noticing some rash on her 13 year old daughter who is the complainant in
this case, the complainant's mother referred her to the appellant for
treatment. The appellant projected himself as a prophet and the treatment was
supposed to take the form of a cleansing exercise.
Having ensured the complainant was alone the appellant instructed her to remove
her pant and blouse. The appellant further instructed her to kneel down with
her hands on the ground thereby exposing her back to the appellant who was
kneeling behind her applying some medication on her private parts.
The appellant took advantage of the complainant's position and inserted his
erect penis into her vagina and pushed it hard to the extent that the complainant
almost lost her balance.
The facts as given by the complainant led to the appellant being charged and
convicted of rape as defined in s 65 of the Criminal Law (Codification and
Reform) Act [Cap 9:23]
Despite denying the charge the appellant was convicted and sentenced to 20
years imprisonment of which 2 years was suspended on the usual conditions of
future good behaviour.
The appeal which is against both conviction and sentence is what has prompted
this hearing.
As against conviction the appellant has criticised the evidence that was
accepted by the court a quo and argued that, that evidence did not
support the conviction.
I do not agree. A simple reading of the judgment of the court a quo clearly
shows that its criticism is most unfortunate and amounts to no more than a
fishing expedition on the part of the appellant.
There was in my view a proper and simple assessment of the evidence given by
the complainant and properly supported by the evidence of her 17 year old
sister Faith Mutenga on one side and the evidence given by the appellant on the
other.
One gets the impression that this was a well calculated offence by a cunning
appellant who took advantage of an unsuspecting complainant. It is not possible
to accept the argument as put forward by the appellant that the conviction was
unsustainable.
Equally true is the fact that given the repetitive occurrence of matters such
as this one, the sentence itself cannot be said to induce a sense of shock and
outrage as to warrant interference from this court.
Those who commit heinous offences of this nature must accept that they cannot
avoid being removed from society for a fairly long period of time.
Such sentences are a desperate response by these courts to the continued and
almost unabated occurrences of such offences.
Consequently, the appeal against both conviction and sentence is
dismissed.
IEG Misimbe and Partners, appellant's legal
practitioners
Attorney General's Office,
respondent's legal practitioners
BERE J ______________________
HUNGWE
J agrees __________________________
