Andrew Kunambura 22 October 2017
HARARE – 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
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 having 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
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 having 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 sexual intercourse
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 sexual intercourse 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, having sexual intercourse 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
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
“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 sexual intercourse with a young person or . . . shall be
guilty of sexual intercourse 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.”