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Masinga v. Rex

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Masinga v. Rex

Supreme Court of Swaziland

30 November 2012

CRC Provisions:
Article 1: Definition of a child

Domestic Provisions:
Swaziland Constitution, sections 18(2), 19(2), 29(2), and 38(e)
Criminal Procedure and Evidence Act, sections 185 bis (1) and 313(1)-(2)
Children’s Protection and Welfare Act

Case Summary:

Masinga was convicted of rape with aggravating circumstances and sentenced to nine years’ imprisonment, the statutory mandatory minimum sentence for the offence, even though he was only 15-years-old at the time of the crime. The defendant appealed the sentence on the grounds that it violated section 29(2) as read with sections 18(2) and 38(e) of the Constitution, which prohibits abuse and other cruel, inhuman or degrading treatment of children and allows only moderate chastisement of children for the purposes of correction. The High Court found that the mandatory minimum sentence for children was unconstitutional, and allowed the defendant to appeal his sentence in the Supreme Court.

Issue and resolution:
Juvenile justice; mandatory sentencing. The Court held that it was not unconstitutional to treat the defendant – who was aged 21 at the time of sentencing – as an adult offender and to impose the mandatory minimum sentence of nine years’ imprisonment.

Court reasoning:
It was appropriate to look to the child offender’s age at sentencing (21) and to determine that he should be sentenced as an adult rather than as a child offender, particularly in light of the serious nature of the crime. In recognition that the defendant was only 15-years-old at the time of the offence, the sentencing court imposed only the mandatory minimum, which is on the lower end of the permissible range of sentences for the crime committed. Section 29(2) of the Constitution prohibits abuse of children, including sexual abuse, and the rights of the child offender must be balanced against the right of the 12-year-old victim to freedom from sexual abuse. The public also has an interest in deterring rape, and particularly the rape of young children. Balancing all of these considerations, the minimum penalty was no more than reasonably necessary for the protection of the victim of rape and the public in general.

Excerpts citing CRC and other relevant human rights instruments:
[9]     The appellant’s heads of argument refer, disingenuously, to the appellant as a child as distinct from an adult.  He submits that a child is a person below the age of 18 years.  This half truth, like all deliberate half truths, is decidedly misleading.  It relies for its validity upon the dictum of the full court of the High Court in Masinga v Director of Public Prosecutions where that court, citing the definition in Article 1 of the Convention of the Rights of the Child as “a human being below the age of 18 years”, transposes that definition to the meaning of the word “child” as it appears in section 29 (2) of the Constitution although that court correctly states that the Convention of the Rights of the child has “not yet been enacted locally as an Act of Parliament, and is not part of the laws of the Kingdom”.

[10]   The appellant’s submission that the word child must be interpreted to include without more, ALL persons below the age of 18 years ignores the reality that offence creating laws of mature democratic common law jurisdictions have segmented the totality of childhood into broad bands of tender years, mid childhood or the juvenile state, and late childhood.  These sub-divisions reflect in a common sense way, the reality that as a child ages and matures, he or she develops an increasing awareness of the difference between right and wrong and is, in the eyes of the law, charged with a growing responsibility for his or her actions as he or she advances towards full adulthood.  Thus, the laws of Swaziland recognize the status of juvenile, and of juvenile adult, as sub-divisions of the status of childhood.

Follow Up:
In November 2012, Swaziland enacted the Children’s Protection and Welfare Act, which provides that “[i]mprisonment for a maximum period of five years may be imposed as a sentence for the purposes of this Act except that this sentence may not be imposed on a child below the age of 16 years” (section 156(1)).

For an explanation of the High Court’s judgment, see CRIN’s case summary of Masinga v. DPP.

CRIN Comments:
CRIN believes this decision is inconsistent with the CRC. Article 1 of the CRC provides that the Convention applies to all persons under the age of 18. This includes Articles 3 (best interests of the child must be a primary consideration), 37(b) (imprisonment must be a last resort) and 40 (child offenders must be treated in a manner consistent with the promotion of their sense of dignity and worth). Mandatory minimum sentences of imprisonment for children, including those who commit offences while under 18, are not consistent with the above CRC provisions.

Sikhumbuzo Masinga v Rex (09/2011) [2012] SZHC 60 (30 November 2012)

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.