Judge slams magistrates for fuelling child marriages
A HIGH Court Judge has castigated magistrates who treat men who offer to marry girls that they would have impregnated leniently saying such judicial officers were fuelling child marriages.
Harare High Court judge Justice Jester Charewa made the remarks while reviewing two cases in which two men, Shepherd Banda and Everton Chakamoga, both had sexual intercourse with girls under the age of 15 and walked away with lenient sentences after offering to marry the girls.
The review was distributed among magistrates countrywide last week.
Justice Charewa said children are entitled to adequate protection by the courts and judicial officers must ensure the paramountcy of the best interests of children as prescribed for in the Constitution.
The Judge said the matters under review which were handled by one magistrate had similar facts.
She said both accused persons were mature adults, more than 30 years old and both had sexual intercourse with young persons- girls aged 15 years, about half the men’s ages.
“They both impregnated the young girls. Fortunately, both girls did not contract STIs or HIV. The only difference was that one accused took the young girl for his wife, an aggravating circumstance as I will discuss later. The other gave the young girl $2 and $1 after he had had his way with her.
“Both accused were charged with having sexual intercourse with a young person. Both were tried by the same magistrate, and sentenced to 24 months imprisonment of which 12 months were suspended for 5 years on the usual conditions for such cases, remaining with 12 months effective,” said the Judge. While the convictions were proper, Justice Charewa said the sentences handed down appear to trivialise the protective measures for young persons as the magistrate refrained from freely applying his mind to the developments in the law and best practices on the protection of children, both locally and internationally. She said section 327 (6) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 requires judicial officers, in interpreting legislation, to adopt any reasonable interpretation that is consistent with international conventions, agreements that are binding on Zimbabwe.
The judge said section 78 (1) of the Constitution says only persons who have attained 18 years of age can start a family.
“It therefore behoves on judicial officers to ensure paramountcy of children’s interests in all proceedings before them, including handing down appropriate sentences that deter those preying on children to refrain from doing so in order to give the maximum protection accorded to children by law,” she said.
“I find it particularly aggravating that the much older accused person (Banda) divorced his wife and made this child “wife” look after his two children who included a four-month-old baby, at a time when she herself was a pregnant child. It is my view therefore that judicial officers should not look with favour on these much older men who “marry” or intend to marry these children for 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,” treaties, said Justice Charewa.
She said the accused persons were both married men with four and two children, which was aggravating rather than mitigatory.
“Such mature persons ought to take their obligations as married fathers seriously enough to want to protect their families. That they did not consider the plight of their families as a damper on their sexual abuse of young persons is the height of irresponsibility and carelessness, which they should not to be allowed to hide behind to escape a just punishment.
“The accused persons interfered with the education of the complainants, one of whom was in Form Three and the other in Form One, thus limiting their prospects for self-advancement. Looking at the aggravating features that the magistrate rightly took into account, I am unable to understand how after such a well-reasoned analysis, 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,” said Justice Charewa.-@pchitumba1