Both accused 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 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 section
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, and 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:
(i) 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 section 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) of the Constitution requires that policies
and measures are taken “…, to ensure that children are protected from maltreatment,
neglect or any form of abuse.”…,.
Section 78(1) of the Constitution 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, section 81 specifically prescribes the protection of children's rights.
Section 81(1)(e) of the Constitution provides that children must be protected
from “…, economic and sexual exploitation…, and from maltreatment, neglect
or any form of abuse.”…,.
Sub-section (1)(f) guarantees children's rights to
education and healthcare while subsection (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 section 70 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23] this conduct would be
perfectly acceptable?
More particularly, the specific obligation placed on the
courts, and the High Court in particular, by section 81(3) of the Constitution
made me consider that it may be high time that the courts had a serious re-look
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.
(ii) 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 …, 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 emphasize 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 sitting
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 (see the report of First Summit
of Presidents and Chief Justices of
Constitutional, Regional and Supreme Court Justices 5-14 November 2012
held in Mexico City, Mexico,( website of the National Supreme Court of Justice
of Mexico) and reports of the Continental Judicial Dialogues for African
Judiciaries, Arusha 2013 and 2015 (website of the African Court on Human and
Peoples' Rights)), 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,…, 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 section 81(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= or $2=,
in these harsh economic times. The very fact that a young person 'agrees' to
sexual intercourse with a much older man 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 HH335-13…, ;
“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 HH943-15…, section
70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
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 four (4)
and two (2) children, respectively, 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 HB55-12, 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 section 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 HB55-12, 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.
