A CASE for mandatory sentencing in all child sexual abuse cases: Analysing the ruling in S v Makamba and S v Sahumbe and S v Muchabaiwa and S v Kapirikwete HH 282-17 The above are different cases that were reviewed by Justice Erica Ndewere where the learned judge criticised the magistrates who sentenced the four convicted persons to terms of imprisonment. The four men had each been accused of having sexual intercourse with a young person, an offence that is governed by Section 70 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In summary, all the four men had been convicted of having sexual intercourse with minor girls aged 13 to 15 years old and sentenced to effective custodial sentences ranging from 10 months to 24 months. In all the four cases, the girls aged 13 to 15 years old, had consented to the sexual acts with the adult men aged 19 to 25 years old.
By Caleb Mutandwa/Chinga Govhati
In the judgment handed down on May 17, 2017, the reviewing judge remarked that “the purpose of (the) provision [Section 70] is clearly to deter the vulnerability of minors from sexual abuse, which at law, they are deemed not to have the capacity to consent to sexual activities.” She, however, went on to substitute the custodial sentences in all four cases with fines ranging from $200 to $300. She supported the reduction of the sentences based on a judgment by the late J Mutema in the case of State v Tshuma HB 70/13 wherein the late learned judge had altered a custodial sentence of 18 months to a fine. In all the cases quoted above, all the perpetrators were adults and the victims were all minors. This is important as it relates to influence on the minors even though they might have consented to the sexual acts.
Section 70 (1) provides that a person convicted of having sexual intercourse with a young person shall be “… liable to a fine not exceeding level 12 or imprisonment for a period not exceeding 10 years or both.” The sentence as provided in the law shows that the legislature views such offences as serious hence the magistrates who sentence offenders to imprisonment are in agreement with the legislature’s intention, which is definitely to deter like minded offenders.
Professor Geoff Feltoe, in an article entitled, Strengthening our Law on Child Sexual Abuse, observed that child sexual abuse has been on the increase in Zimbabwe and “has completely devastating effects”. Some of these effects include, but are not limited to, HIV infection, disruption of victims’ development and pregnancy. According to the Professor, Zimbabwe can learn from other countries. The Sexual Offences Act of Zambia in Section 9 punishes an offence called sexual “grooming of a child”, which is not the sexual act itself, up to 15 years imprisonment. In Section 10, having sexual intercourse with a child who is below the age of 16 years attracts a punishment of up to life imprisonment and the section even punishes an attempt to have sexual intercourse with such a child. Zimbabwean Parliament has recognised the need for concerted efforts to curb child sexual abuse and is on record for making suggestions that the laws currently in place, which “… include Criminal Law [Codification and Reform] Act, and Domestic Violence Act … must now be rigorously enforced by the Zimbabwe Republic Police and the Judiciary in order to end impunity in cases related to having sexual intercourse with underage girls and child marriages”.
The government has also set up an inter-ministerial committee comprised of the Ministry of Women Affairs, Gender and Community Development, Ministry of Primary and Secondary Education, Ministry of Local Government, Public Works and National Housing, Ministry of Health and Child Care and Ministry of Justice, Legal and Parliamentary Affairs to fight child sexual abuse. Government has also teamed up with Civil Society to come up with a Draft Bill on Marriage Laws that seeks to have the age of consent raised to 18 years of age instead of 16 years. Such efforts need to be complemented by the judiciary in sending a strong message of condemnation of sexual abuse of any nature on children.
Just as the writers were penning this article, Zimbabwe woke up to the news that Cabinet had proposed minimum mandatory sentences of 60 years for those who sexually abuse children below 12 years of age and 40 years for all the other cases of rape and aggravated indecent assault. Information, Media and Broadcasting Services minister, Christopher Mushohwe, is quoted as saying that: “Accordingly, the government resolved as follows, that a sentence of 60 years of imprisonment be imposed for cases of rape of minors between 12 years of age (sic) and the disabled; and that a sentence of 40 years of imprisonment be imposed for the rest of the cases of rape or sodomy.” Such a move should be well complemented by a judiciary that feels the same by passing sentences that reflect the seriousness of the offences.
Effectively, the judgment by Justice Ndewere may be seen by many who have been making concerted calls for strengthening of child protection in Zimbabwe, as a step backward. The judgment itself has many undesirable consequences; abusers may get away with just a fine and the magistrates who had started passing custodial sentences will now resort to fines and community services and people will continue to abuse children. Victims and the families may be compelled even to negotiate for compensation rather than have the money given to the State. Child marriages may even increase. It also shows the attitude of the courts even if child marriage was to be criminalised; they would not send offenders to prison, but would just fine them.
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Section 81 (1) of the Constitution of Zimbabwe considers persons under the age of 18 as children. The same section protects children from sexual exploitation in Section 81 (1) (e). It further mandates “the High Court, as their upper guardian” to ensure that children get “adequate protection by the courts,” in Section 81 (3). Our call, therefore, is for the courts to uphold constitutional provisions so that the public has confidence in the justice delivery system, are motivated to report cases of violation of children’s rights and are dissuaded from coming up with their own ways of seeking justice. Handing down fines as sentences to perpetrators of child abuse sends the wrong message that children are not people but commodities. The writers also call upon the Cabinet to consider mandatory sentences on cases of having sexual intercourse with young children.
Caleb Mutandwa and Chinga Govhati write in their own capacity as child rights advocates. Feedback: [email protected] and [email protected]
