THE High Court has quashed the proceedings in which a 12-year-old Grade 7 pupil was convicted and sentenced to 15 years in jail for raping a five-year-old minor.
High Court judges Justices Munamato Mutevedzi and Ngoni Nduna ordered the release of the juvenile after quashing all the proceedings.
They said the National Prosecuting Authority of Zimbabwe should pursue the case before a different regional magistrate.
It was the State’s case that on February 12 this year, the boy, from Mafa village under Chief Nemangwe in Gokwe South, raped the toddler.
The infant had been left in the care of the boy’s grandmother, who had gone to attend a meeting at a nearby pre-school and left the victim in the custody of the accused.
The boy reportedly took her to a bedroom at the homestead before raping her.
During trial the accused, who appeared with his guardian, told court that he did not need representation.
In their judgment, Justices Mutevedzi and Nduna said where an unrepresented childappeared before a court facing any offence, the court could not ignore the question of having a legal practitioner assigned to assist that child.
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“The court must, as of necessity, approach the matter with single-minded benevolence. As a general rule, therefore, because of the severity of sentences imposable for rape convictions, a court must not proceed to try and convict a child without legal representation. If that is done, it will be evident that there is no power to match that of a court which protects children,” Justice Mutevedzi said.
He said the trial magistrate failed to apply the cited provisions and equally neglected to advise the accused and his guardian that on conviction, the accused risked being sentenced to lengthy imprisonment.
The judge said if the trial magistrate had told the guardian, he could have changed his mind and acquired legal representation, adding that he thought the child would receive corporal punishment.
According to the court record, when the boy was finally sentenced and the guardian was asked if he understood the sentence, his reaction was utter astonishment.
“He could only manage to exclaim ‘15 years!’ I could have quashed this conviction on this basis alone, but there is a worse problem with it,” Justice Mutevedzi said, adding that the trial magistrate erred in not asking the accused what his understanding of rape or sexual intercourse was.
“In his sentencing judgment, the magistrate approbated and reprobated. His contradictory approach was graphic. In one breath, he stated as follows: The offender is aged 12 years, but judging by the results of sexual abuse, he is mature enough to understand his act and its criminality.
“I take the view that on account of his age at the time of the commission of the offence, he had a level of immaturity,” he said.
The judge said the two findings were wrong in that they were mutually exclusive and that the question of criminal capacity had nothing to do with sentencing, saying it had everything to do with liability.
Justice Mutevedzi said in cases involving children, psychologists invariably knew better than lawyers, adding that had the trial magistrate taken heed of this, he would have decided the case in another way.
“My calculations show that if he is now in Grade Seven, he has only been staying with her for less than two years. His father is still absent. Clearly, therefore, he is a boy who has never had proper fatherly guidance for almost all of his life,” the judge said.
“Further, the report highlighted that the accused may have committed the offence due to peer pressure exerted by his friends.
“From the investigations, the child thought that he was playing with the complainant when they had sexual intercourse.”
Justice Mutevedzi, in conclusion, said his court opted for refusal to certify the proceedings saying that way, it protected the accused from being dragged back for a retrial.
“I am constrained to hold that there was a substantial miscarriage of justice by failing to investigate whether or not the boy had the requisite criminal capacity. The conviction must be vacated,” the judge said while setting aside the 15-year sentence in agreement with Justice Nduna.
