Statutory rape doesn't warrant jail sentence: Judges

In a landmark ruling that has potential to trigger public outcry, two learned judges of the High Court have ruled that, depending on the circumstances, statutory rape does not usually warrant a custodial sentence.

The ruling by High Court judges Erica Ndewere and Owen Tagu flies in the face of the harsh sex laws on the country's statute books that have provisions for jailing sex offenders for as long as 10 years.

In their ruling, the judges set free four men who were serving jail terms for indulging in sex with minors after adjudging that the convicts were victims of incorrect sentencing.

According to court papers accessed by the Daily News on Sunday, the quartet of Tinashe Makamba (20), Benice Sahumbe (25), Marshal Muchabaiwa (25) and Farai Kapirikwete (19), had applied for reviews of custodial sentences imposed on them.

Makamba had been jailed for 18 months for bedding a 13-year-old girl, while Sahumbe was thrown behind bars for 18 months for impregnating his 15-year-old girlfriend.

Muchabaiwa had been jailed for 18 months for helping himself to his 15-year-old girlfriend, while Kapirikwete was serving 24 months jail term for indulging in sex with his 15-year-old lover.

The 2013 Constitution set the minimum age of consent at 18.

In their joint judgment, Ndewere and Tagu, ruled that perpetrators were actually "victims of incorrect sentencing".

"The four cases herein are of the same nature. Accused persons in all four matters were rightfully charged of having consensual sex with minors. However, in all cases, all the accused persons succumbed to the same fate of incorrect sentencing," Justice Ndewere said in a ruling delivered on May 17, but was only released two weeks ago.

Justice Tagu concurred with the ruling, court papers indicate.

The judges pointed out that while the law clearly states that those convicted of statutory rape could be condemned to up to a decade in jail, the general trend in such cases was that perpetrators were allowed to get away with light fines.

"The purpose of this provision is clearly to deter the vulnerability of minors from sexual abuse which, at law, they are deemed not to have capacity to consent to sexual activities. However, it is the salient facts in casu, which make me conclude that the respective learned magistrates grossly misdirected themselves on sentence. In all instances, the accused persons were in love with the complainants and the sex was consensual in all cases," noted Ndewere.

She went on to quote previous cases in which other judges had been lenient on these sex offenders.

"However, indulging in sex with a minor remains a crime, in spite of the complainant's willingness. But then the sentencing should be appropriate. The sentencing trends on sex with minors otherwise referred to as statutory rape have been dealt with in depth by the late (Justice Arnold) Mutema in the case of State versus Tshuma HB 70/13. From that judgment, it is apparent that non-custodial sentences are usually passed in such offences," she said.

The court then substituted the custodial sentences imposed on the four with light fines.

Makamba's sentence was reduced to a fine of $200 alternatively one month jail.

Sahumbe was fined $300 fine (or two months in jail) the same as Muchabaiwa, while Kapirikwete had 23 months knocked off his sentence to leave him with one month, alternatively $200 fine.

However, because the four - who were all jailed last year - had served a better part of their sentences, the court ordered their immediate release from jail.

"It is therefore correct to conclude that, depending on circumstances, statutory rape does not usually warrant a custodial sentence," Justice Ndewere pointed out.

The ruling, flies in the face of Zimbabwe's punitive sex laws.

Section 70 (1) (a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] reads: "Subject to subsection (2), any person who: Has extra-marital sex with a young person or . . . shall be guilty of sex or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding 10 years or both."