S v NYAMANDE 2014 (2) ZLR 888 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of Rights — s 81(1)(e) — right of children to be protected from sexual exploitation — mature man purporting to marry child citing religious beliefs — breach of child's constitutional rights

Criminal procedure (sentence) — offences under Criminal Law Code — sexual relations with a young person (s 70(1)) — large age disparity between accused and complainant — accused a member of a religious sect which allowed polygamy — need to protect children — heavy term of imprisonment essential

Headnote

The accused, a 54-year-old man, was convicted in the magistrates court of having sexual intercourse with a 14-year-old girl, contrary to s 70(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He claimed that he taken the complainant as his third wife, which was permitted by the religious sect to which he belonged. He claimed that he had been shown by "the Spirit" that the complainant was going to be his third wife. As a result, the complainant fell pregnant and dropped out of school. The magistrate sentenced the accused to 24 months' imprisonment but suspended ten months thereof on condition of future good behaviour and ordered that the remainder of 14 months' imprisonment also be suspended on condition of performance of community service. Upon review, while confirming the conviction, it was:

Held, that the offence was so bad that it warranted the imposition of a longer prison term and an effective custodial sentence. In Zimbabwe, there are churches, especially apostolic sects, which have religious practices that encourage members to marry young girls. They continue to do so regardless of laws which outlaw child sexual abuse such as the section of the Criminal Law Code the accused was charged with. That section attracts a maximum penalty of ten years' imprisonment. Despite the heavy penalty that is prescribed by statute, these churches continue with their practices. It seems that they listen to the Spirit which leads them more than they listen to the law of the land. There also seems to be a conflict between what the Spirit tells them and what the law says.

Held, further, that child sexual abuse has effects such as pregnancy, girls dropping out of school and the risk of contracting HIV/AIDS and other sexually transmitted diseases. Early marriages deny girls educational opportunities, lead to poverty and economic insecurity. Because of lack of education, the capacity of these girls to make decisions is negatively affected. Other forms of gender-based violence and problems such as physical and sexual abuse are reinforced against them. Adults who engage in child sexual abuse and marry young girls show a complete disregard of the rights of children in spite of the protection s 81(1) of the Constitution gives to those rights. In addition, Zimbabwe has ratified various international conventions which prohibit child sexual exploitation and abuse and child marriages: the Convention on the Rights of the Child; the Convention on the Elimination of all forms of Discrimination against Women; and the African Charter on the Rights and Welfare of the Child.

Held, further, that what made the complainant in casu vulnerable was her young age and her church practice which brain-washed her. Adults who take advantage of such children ought to be seriously punished. They must be sentenced to imprisonment, not only to punish them but also in an endeavour to deter others who might have similar inclinations. Heavy custodial sentences are essential if the courts are to play their role in protecting children or young people from sexual abuse by adults. If the accused had been sentenced to effective imprisonment that would have sent a clear message to his church mates that child sexual abuse and child marriages are not tolerated by the courts and as a result other would be offenders would have been deterred from committing such crimes in future. A sentence in the region of four to five years' imprisonment with a portion suspended on condition of good behaviour would have met the justice of the case.