The State v Davison Chekumenya

### Preamble
1
HCC 44/24
HCCR 366/24
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THE STATE

Versus

DAVISON CHEKUMENYA

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI

Criminal Review

BACHI MZAWAZI J:  A fourteen-year-old boy was sentenced to an effective 5-year imprisonment term. He had been convicted of rape in terms of section 64 (1) as read with section 65 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. It is alleged that he had raped a minor girl aged four years at the time of the commission of the offence. The minor had visited the accused’s room looking for her friend. Reportedly, accused took advantage of the child, dragged and placed her on a sofa and committed some indecent acts through her anal organ, before raping her.

In his defence, the accused who was accompanied by his guardian the mother, did not deny seeing the complainant at the residence on the day and time. He however, denies any sexual contact with her or any sexual criminal violations of the complainant. He was unrepresented. The boy also mentioned that he overheard the young girl’s friends jeering at her when she left his then place of residence.  The house allegedly belonged to her sister. Her sister’s child was the friend of the complainant.

Evidence which was placed before the trial court was that of the complainant who detailed what transpired, her sister and her grandmother. Her sister, Lerato Wire aged 10 years was called to corroborate that indeed, complainant reported the sexual molestation to her upon her arrival from church. It is alleged that the victim had also divulged the sexual abuse to the so-called jeering friends, amongst them two of her own sisters. She also learnt from the complainant’s friends that indeed complainant went inside the room where the accused was. However, Lerato did not readily report the incident to her grandmother as she had breached her standing instructions to take along all the children to church, inclusive of the complainant.

Their grandmother, was the last to testify. She attested on the report that was made to her by one of the complainant’s sisters. She also confirmed that she quizzed the complainant over the issue as she was reluctant to voluntarily disclose the rape report.

The trial court was satisfied that indeed an offence was committed against the complainant. It believed the evidence led by the State and made a finding that all the witnesses were credible. Although there is mention of the indecent assault, it is evident that accused was only convicted of rape. The medical report confirmed that there were bruises, hymenal tears and penetration. It was taken on the 12th of January 2024. It was taken 5 days after the commission of the offence. The accused person was then convicted and sentenced as stated above.

The first observation made by this court is the unqualified sentence of an effective five years imprisonment on a fourteen-year-old child in conflict with the law. To begin with it was not much about the imprisonment period but the fact that a court of law, can mero mutu send a child to a formal prison without considering or taking heed of the laws governing the sentencing of young persons, children or juveniles in conflict with Criminal law.

Further, the court did not state whether the juvenile, as it where, was sent for assessment before a probation officer as required by the law governing juvenile delinquents. No proof of a probation report in respect to the accused was attached but only that for the minor victim of the offence. In passing, the trial court in sentencing the accused then made reference to the probation officer’s recommendation on counselling which evidently was extracted from a report on the victim not one specifically compiled for the accused.

Even if it were to be concluded that indeed she did go through a report, conspicuously absent from her reasons for judgment and sentence and the record itself, then she failed to justify why she rejected, departed from or did not take the recommendations of the Probation Officer on board.

In addition, the trial court, though there is nothing amiss in respect to the jurisdiction of the Regional Court in rape or sexual abuse cases, was Statutorily enjoined to refer the accused to the Children’s Court or to consider sending the child to reformatory school and juvenile detention centre.

The trial court should have been vigilant to the dictates of the law governing the sentencing of children in conflict with the law. Thus, the first port of call in every case involving child offenders is what the law says on sentencing children in conflict with the law? In that case, the constitution of Zimbabwe in section 164(1) enjoins every judicial officer to be subservient and faithful, not only to the Constitution but the law. Hence, the judicial officer literally lives and breathes the law. Meaning every decision that is made should be within the precincts of and embodied with the law.

Moreso, when s81(3) places a Constitutional obligation upon courts in general, and the High Court, in particular, as the upper guardian to adequately protect the rights of children who appear before them. It is thus imperative that the court, which is looked up to, as a neutral arbiter or umpire should accord equal treatment to both the offender and the victim.  The best interests of the child offender are as equally important as those of the child victim as enshrined in s81(2). This is in consonance with other International and Regional Human Rights, Covenants, and instruments.  See, Article 17 of the African Charter and the United Nations Convention on the Rights of the Child.

Whilst the whole of s81 of the Constitution, Amendment Act No 20. Of 2013, is dedicated to the definition of rights and protection of children, s 81(1) defines a child as every person below the age 18 years.  So in this case, there is no doubt that the accused person is a child. He was notably, aged just 14 years when he was tried and convicted. He was born on the 24th of December 2009. The offence took place on the 7th of January 2024. He was convicted and sentenced on the 20th of April 2024.   In S v Mupariwa 2000 (1) ZLR 168 (H), it was highlighted that the failure of the trial court to compute or to take into consideration the age of the child offender is gross misdirection.

Sections 6, 7 and 8 of the Criminal law Codification and reform Act, [Chapter 9:23] speaks to the culpability of children below and above the age of 14 years.  Nonetheless, we would like to believe that the accused was doli capax and fell outside the scope of section 7 of the Chapter 9:23 which exculpates children between seven and fourteen years since the Prosecutor General’s office sanctioned his prosecution.  Especially in light of the qualifying provisions in section 230 of the Criminal law Codification and Reform Act, Chapter 9:23.

In S v C (a juvenile) 1997(2) ZLR 395 (H) at 397 C-D Gillespie J had this to say:

“The law presumes a child under fourteen to be doli incapax. This does not mean unable to do wrong. It does not mean lacking the capacity to differentiate between right and wrong. It means that the child is regarded as incapable of formulating a criminal intent to break the law. He has not the maturity or knowledge to make up his mind to do something to do something knowing it not only to be wrong but also knowing that it is against the law and susceptible to criminal sanction.”

Section 230 of the Criminal Code on the other hand sets out the circumstances under which a child within the seven to fourteen years group may be held criminally liable for his or her conduct as well as some of the factors which may be considered in arriving at that conclusion. It provides as follows:

230. When a child between seven and fourteen years may be held criminally liable

The presumption referred to in Section Seven as to the criminal incapacity of a child between the age of seven and below the age of fourteen years may be rebutted if, at the time of the commission of the crime for which the child is charged, the child was sufficiently mature-

to understand that his or her conduct was unlawful or morally wrong; and

to be capable of conforming with the requirements of the law."

Criminal punishment”

Sections 351,352 and 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] make reference to the Children’s Court in terms of the Children’s Act, [Chapter 5.06] when a trial court convicts a person under the age of 19, instead of imposing a punishment of a fine or imprisonment.  They also enjoin the sentencing court to consider the placement of the juvenile under the supervision of a probation officer and encouraged to consider sentencing juveniles to reformatory schools or institutions for juveniles, if incarceration is the only option. See, S v C (a juvenile CRB87 of 2014) [2014] ZWHHC7/18 and S v Mupariwa 2000(1) ZLR 168 (H).

In this case, all the tenets set out in the above Laws were encapsulated in the new sentencing guidelines, S. I. 146/23. Section 21 (1) of the sentencing guide recognises children as a special category of offenders. It reads:

“21 (1) where the offender is a child the court shall have regard to the following:

That the best interests of the child are the paramount consideration when determining the most appropriate sentence to impose and the court shall strive as best as it can to ensure that the sentence is rehabilitative in nature.

A report prepared by a probation officer is a compulsory part of the pre-sentencing information.

Imprisonment as a sentence imposed on a child is to be used as a last resort and then only for the shortest possible time.”

In conclusion, it is evident that the trial court made reference to the Sentencing Guidelines, but it failed to take cognisance of the provisions of s21. The implication is that, it treated a mere child who was in need of its protection through all the various statutory options open to it as instructed by the law. It exposed the 14-year-old teenager to the irreparably physical and emotionally damaging effect of adult prison vices.

Indeed, the seriousness of the offence cannot be underplayed especially on an equally vulnerable victim. That is the main reason why we did not find it appropriate to tamper with trial court’s factual finding. In this case, the accused does not deny that the complainant was in his room at the relevant time. The medical report confirms that the complainant was sexually violated as described therein. It was taken within a period of five days from the day of the alleged offence.  The trial court even applied the cautionary rule as dictated by the case of State v Sibanda 1994 (1) ZLR. There is no justifiable reason why the complainant would single out the accused and incriminate him of such a heinous act. We therefore do not fault the trial court’s findings on conviction.

However, the same cannot be said with regards to the sentence imposed. We do not believe that sentencing a 14-year juvenile to an effective 5-year imprisonment term without specifying that he should be detained in a juvenile detention centre, is in accordance with real and substantial justice. The court had a legal duty to send the accused to a juvenile detention home or to send him to the Children’s Court as dictated by sections 351 to 353 of the Criminal Procedure and Evidence Act, [Chapter 9:07] and in terms of the Children’s Act, [Chapter 5:06]. See, S v Ncube & Others HH139/11 and Eva v1967 (1) RLR 113 (G). We are of the considered view, that it is the sentence that was not in accordance with real and substantial justice.

Nonetheless, the court is mindful of the fact that, attached to the record is only a probation officer’s report in respect of the complainant. It is within this probation officers report that there is mention of the need for further counselling sessions to help the victim get through the traumatic incident as already alluded to. The trial court in sentencing the accused made reference to the statement of “counselling”, as if there was a probation report specifically recorded for the accused person. No such report was attached to the record. Had the report been attached the trial court should also have analysed it and gave her reasons for not rejecting the probation officer’s recommendations.

Clearly, the trial court erred and misdirected itself by not calling for a probation officer’s report in respect for the accused person. Secondly, by not considering the relevant laws governing the sentencing of children and juveniles. In the South African case of J.A v S [2019] CGCC 64 (3 June 2019) SAFLII, proceedings of a lower court were vitiated for the failure of calling for the probation officer’s report.

Further, as is discernible from the record of proceedings before the trial court, there were incidences where the accused was so overwhelmed as not to answer some questions put to him. This is a red flag that should steer the trial court to allow child offenders the opportunity to seek the assistance of legal representatives paid by the State. If the State can facilitate the payment of legal representative or pro deo lawyers to suspect murderers, surely it can extend the same to its children offenders.

Another, interesting factor is though the trial court recognised the need for the child to be assisted with his guardian, it may not be in the best interests of an African Adolescent child who culturally and traditionally regards or views sexual matters as taboo subjects where parents and adults in general are concerned. So, a child, a male one for that matter may not freely speak up in the presence of their mothers.

In view of the above summation, the conviction is confirmed.  Due to the numerous mis-directions, in regard to the sentence. The sentence is set aside and substituted with 5 years imprisonment wholly suspended for 2 years on condition the accused does not within that period commit any offence involving sexual assault, rape or indecent assault for which upon conviction he is sentenced to imprisonment without the option of a fine.

A warrant of liberation is forthwith issued.

Muzofa J agrees