A NEWLY-appointed Zimbabwe judge has laid it on the line for her judicial colleagues: she said it was high time they handed down tougher sentences, with penalties indicating that sex with girls under 18 is always illegal and has serious consequences.
Judge Jester Charewa, sworn in as a member of the Harare bench during September 2015, was formerly executive secretary of the Zimbabwe Human Rights Commission and before that a deputy registrar of the African Court in Arusha.
Last month, in a review of two magistrate’s court cases, she made what amounts to a clear statement of her judicial philosophy, her approach to sentencing on matters involving sexual abuse of children and her criticism of fellow judicial officers who pass sentences in such cases that amount to no more than a slap on the wrist.
In both cases under review the accused were over 30, while the girls with whom they had sex were 15. Both girls became pregnant. In one case the man “married” the girl; in the other case the man gave the girl the equivalent of R2 and R1 after having sex with her.
The two men were charged with contravening the criminal law, were tried by the same magistrate and were given the same sentence: 24 months imprisonment of which half was suspended for five years on the usual conditions, leaving an effective penalty of just 12 months.

“Trivialising” protection

In her review judgment, delivered during January 2016, Judge Charewa said the convictions had been proper and the reasoning of the magistrate, on considering sentence, could not be faulted. However, she said, the level of sentence belied the reasoning. To say that the sentences seemed to “trivialise” the protective measures in domestic and international law that were aimed at safeguarding young people “is an understatement”.
The magistrate appeared to “go by rote”, she said, rather than freely applying his mind to the law and to best practice in the protection of children, both locally and internationally.

Intense criticism
Significantly, Judge Charewa’s decisions on the two review cases follow growing concern about the failure of the courts in Zimbabwe to take strong action against men who sexually exploit girls under 18. Earlier this year the media in Zimbabwe reported on a number of cases in which both the lower courts and the high court approved sentences that completely failed to indicate disapproval of this kind of sex abuse.
One case drew particularly intense criticism: the magistrate involved handed down such a light sentence in a matter involving an older man having sex with a 12 year old girl, that it appeared the judicial officer was “reducing the age of consent to 12”, said the media.
In another example, a magistrate observed that the future of a 13 year old girl had been “destroyed” because she was sexually abused and made pregnant – but the magistrate then handed down a sentence of a mere 315 hours’ community service.
Other cases sparked even more concern when, on review, high court judges reduced already light punishment, rebuking the magistrates involved for their “extremely harsh sentences”.

Constitutional Court

Last month Zimbabwe’s constitutional court unanimously approved a declaratory order to the effect that no-one, male or female, could marry until 18 and that customary law and the Marriage Act were unconstitutional to the extent that they allowed anyone under 18 to marry.
The court rejected the notion that girls should be allowed to marry at a younger age than boys as they were “psychologically more mature”. The judges cited the domestic violence to which marriage at a young age exposed girls, the child trafficking that could be hidden by such “marriages”, the health costs to both the young mothers and their children and the impact on the young mothers that their education was cut short.
A girl does not become an adult and therefore eligible for marriage because she is pregnant, said the court. She remains a child until aged 18.
The judgment caused widespread interest. However Judge Charewa’s review, ironically delivered on the same day as the constitutional court’s decision, fills in some of the gaps, most notably the question of sentencing in such cases, and the unsatisfactory attitude of some courts to the problem.

Predatory older persons

Judge Charewa said the courts “must be seen to apply the law in a manner that achieves the intended aim of the legislature in these cases: that is, to effectively protect children from predatory older persons” and attempt to eradicate the problem.
The judge said that for decades Zimbabwe has provided a commissioner on the African Committee of Experts on the Rights and Welfare of the Child, set up to protect child rights on the continent and that Zimbabwe played a key role at the international level in working against child marriage. However, in the country itself the courts saw an increasing number of cases involving child abuse, rape and forced early marriage.
Judicial officers should “seriously shoulder” their obligation to protect children by passing sentences that would deter “marauding adults” from “targeting vulnerable and immature young persons”. The courts also had a duty not to ignore or minimise the protection offered by the law through making inappropriate judicial pronouncements.
She said she was concerned that “child marriages are unlikely to end where the courts continue to pass sentences that go against the intended letter and spirit of the constitution and international instruments to which Zimbabwe has subscribed.”
It was her view that “judicial officers should not look with favour on these much older men who ‘marry’ or intend to marry … children for the purposes of sentencing, as this attitude from the bench would seem to be promoting child marriages, which our constitution and the international instruments which Zimbabwe has ratified, frown on.”

Lenient sentences

While the constitutional court’s decision now prohibits such marriages, Judge Charewa’s remarks are still well-aimed at fellow judicial officers who evidently regard sexual abuse of girls as of little concern.  Of the review cases she was considering, she said that in view of the aggravating features taken into account by the magistrate she could not understand how he “came up with such lenient sentences”.

“It is up to judicial officers to show that the courts will not tolerate predatory older men who prey on young persons, by handing down appropriately severe sentences,” she added.
She said that “an effective sentence of not less than three years should be imposed, on an incremental basis for those accused who are twice the victim’s ages, (who) are married with children of their own, and (who) impregnate young persons or infect them with sexually transmitted diseases ….”
She said that because of her concern about the outcome in the two review cases she was “unable to certify that the sentencing regime was in accordance with real and substantial justice, and I accordingly withhold my certificate.” She further ordered that her decision should be circulated to all magistrates “for their information and attention”.
Judge Charewa sat in the review with her colleague, Judge Amy Tsanga, who agreed with the outcome.

Welcome development

The judgment by Judge Charewa, and the decision by the constitutional court giving protection to children under 18, both come as an unusual but welcome development: judges in Zimbabwe are not known for their activism on behalf of human rights issues.
We are more used to reading news about judges that reflect a somewhat different judicial priority. Take Judge Tsanga, the high court judge who considered the two reviews along with Judge Charewa, and who was sworn in during July 2013. Judge Tsanga was one of a group of judges who caused concern among groups working for the rule of law when she and the other judges demanded they “be given farms” as well as new judicial regalia, saying they refused to wear the secondhand robes of retired judges.
Their demand for farms was handed over to the government, and the judges were duly asked for their preference in terms of area, so that the issue could be settled as soon as possible.
Human rights critics said the demand for farms was controversial and would create the impression that all the judges concerned were backers of the government of Robert Mugabe. The Zimbabwe government’s controversial policy on land confiscation, with land often grabbed from its owners using extreme violence, has come under intense international condemnation.

S v Banda; S v Chakamoga

This column first appeared in Legalbriefs