The title of this article is motivated by Walter Nyamukondiwa who wrote a story with the heading ‘Child Sexual Offenders should rot in jail’ for The Herald Friday 1 June 2018. In that story, Walter Nyamukondiwa quoted the First Lady, Auxilia Mnangagwa who was addressing a gathering, which included school children, at Moleli High School in Mashonaland West Province on various child protection issues. This article focuses on child sexual abuse. The First Lady is reported to have stated that “the 9th Session of the Parliament of Zimbabwe should consider stiffer sentences, including life imprisonment for people convicted of child sexual abuse.” I share the same desire that child sexual offenders should be given stiffer sentences. I am however writing to show that the Parliament of Zimbabwe is way ahead in terms of law making. I will therefore detail some of the sentences already in place for sexual offences. I submit that there is need for legal empowerment of not only the public but those charged with implementation of the law as well as a judiciary that treats sexual offences with the seriousness they are treated by Parliament.
The law on sexual crimes has been codified in the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This Act provide for crimes such as rape, aggravated indecent assault, indecent assault, having sexual intercourse with young persons and sexual intercourse within a prohibited degree, among others. This article will focus on the sentences provided for such crimes.
Section 65 of the Act provides that a person found guilty of rape shall be “liable to imprisonment for life or any shorter period”. There is no option of a fine in cases of rape. This shows the seriousness with which Parliament treats the crime of rape. In my view this provision which allows for up to life imprisonment in cases of rape is not well known and used. Often, child rights and women rights activists just call for laws to introduce stiffer sentences for sexual offenses without specifying which other sexual offence would need a more stiffer sentence than rape which already has up to life imprisonment. The courts have not also readily imposed the life imprisonment sentence in rape cases. This could be because of the discretion given to the courts in sentencing. Section 65(2) of the Act outlines the factors which a court should consider in determining the sentence to be imposed. Instead of calling for a law to introduce stiffer sentences in cases of rape, activists should rather advocate for mandatory sentences, especially when courts are continuously seen to be passing sentences which are not anywhere near to the maximum sentence and the scourge of child rape continues unabated.
Aggravated Indecent Assault
Section 66 of the Act provides that anyone found guilty of aggravated indecent assault shall be “liable to the same penalty as is provided for rape.” As discussed above, the penalty for rape is imprisonment for life or any shorter period. Imprisonment is mandatory for aggravated indecent assault, as it is for rape. The court also has to consider the same factors provided in section 65(2) of the Act in determining the sentence to be imposed in cases of aggravated indecent assault. It is critical to note that persons of either sex can commit the offence of aggravated indecent assault. Just as discussed above, where this offence is involved it is superfluous to call for laws that introduce stiffer sentences generally. Activists should rather advocate for mandatory sentences and also lobby and sensitise the judiciary to treat this offence as serious as Parliament did when it introduced a sentence of up to life imprisonment. Where boys are survivors of this crime, the courts should also impose sentences which are similar to those imposed when girls are the survivors.
Section 67 of the Act provides that a person convicted of indecent assault shall be liable to a fine or imprisonment for a period not exceeding two years or both. There is a huge difference between the sentence provided for this crime and those provided for rape and indecent assault. Clearly, this is a less serious offence which does not involve penetration of another person’s body. That, notwithstanding, in appropriate cases a convicted person can be sentenced to imprisonment for a period not exceeding two years. In my experience, the outcry about lenient sentences is usually directed to those convicted of rape, aggravated indecent assault and having sexual intercourse with young persons. The number of reported cases in these three categories is high and seemingly increasing.
Sexual Intercourse with young persons
Section 70 of the Act provide that a person convicted of having sexual intercourse with a young person shall be liable to a fine or imprisonment not exceeding ten years or both. This offence is what used to be referred to as statutory rape. It covers where a child aged between 12 and 16 years would have agreed to have sexual intercourse with the convicted person. Compared to indecent assault, it is clear that Parliament considers the protection of children from having sexual intercourse before they reach a certain age seriously. The sentence of up to 10 years imprisonment is very high. What has been disappointing is the practice in our courts whereby payment of fines and community services have overshadowed the provision on imprisonment. Judges have frequently overturned, sometimes with strong languages, imprisonment sentences imposed by magistrates. The cases of S v Makamba and S v Sahumbe and S v Muchabaiwa and S v Kapirikwete HH 282-17 and S v Tshuma HB 70/13 are on point. The sentences imposed by the courts, and not the law, have been a source of discomfort among survivors of this type of sexual abuse and their families. Many are often left with the feeling that justice was not done and call for stiffer sentences, which is particularly imprisonment, to be imposed. This call should be directed to the Courts and only to Parliament when we are advocating for mandatory sentences.
Sexual Intercourse within Prohibited Degree of Relationship
Section 69 of the Act provides that a person found guilty of the offence of having sexual intercourse within prohibited degree of relationship (incent) shall be liable to pay a fine or imprisonment for a period not exceeding five years or both. This offence covers cases of those people who at law can consent to sexual intercourse but are prohibited from doing so owing to their relationship. The sentence of up to five years imprisonment is rarely imposed by the courts hence the need to first lobby the courts before crying to Parliament.
The sentences provided in the law reflect the seriousness with which Parliament, as a body of people’s representatives, abhors sexual crimes. The maximum sentences are however rarely imposed because of the discretion courts have in sentencing. The outcry for stiffer sentences should therefore be directed first to the courts to use the current laws and then to Parliament in cases where there is need to introduce mandatory sentences for specific sexual crimes.
Source: Caleb Mutandwa, Child Rights Advocate and Legal Practitioner (calebviolet [at] yahoo.co.uk)