Judge slams mag­is­trates for fu­elling child mar­riages

Chronicle (Zimbabwe) - - Front Page - Pa­trick Chi­tumba

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

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