S v. Ivhurinosara Ncube
High Court of Zimbabwe
25 September 2013
Article 19: Protection from abuse and neglect
Section 70(1)(a) of the Criminal Law (Codification and Reform) Act: Prohibition of sexual intercourse with a young person
Section 94(1)(b) of the Criminal law (Codification and Reform Act): Prohibition of arrangement whereby the female person below the age of 18 is promised in marriage to any man
The accused was charged with having sexual intercourse with his wife’s sister, who was 15 years old at the time and became pregnant as a result. The accused pled guilty to unlawful sexual intercourse with a young person and was sentenced by a magistrate to 24 months imprisonment of which 16 months were suspended for five years on condition that the accused does not within that period commit any sexual offences. The remaining eight months was further suspended on condition that the accused marries the 15-year-old girl.
Subsequently, a provincial magistrate held that the suspension of the remaining months upon marriage was improper and sought the court’s guidance on corrective measures. The current judgement elaborates on the impropriety of allowing a sentence to be reduced on the condition of a marriage.
Issue and resolution:
Protection from sexual abuse. Whether the eight month suspended sentence upon marriage was appropriate. The court held the sentence was inappropriate and the magistrate was ordered to substitute the suspended sentence with appropriate community service.
The Court held the order of marriage between the accused and a minor was in strict violation of national and international law. The Court rejected the mitigating factors provided by the accused at the first trial where he had claimed the 15 year old had been promised to him as a wife by her parents. This was in violation of the s.94(1)(b) Criminal Law (Codification and Reform Act) which prohibits the pledging of a female without her consent or who is under 18 years of age in marriage. Promising a child in marriage is also contrary to the CRC to which Zimbabwe is a party to. The Court said that, although the State has not incorporated the CRC into domestic law, it takes its obligations seriously, including the requirement under Art.19 that the State protect children from all forms of violence including sexual abuse. The magistrate should have pointed out the promise of marriage was in violation of domestic law. By ordering the marriage between the accused and the minor the magistrate in effect approved of the violation and restricted the child protective functions of the law.
The Court disapproved of the magistrate considering a consensual relationship as a mitigating factor in such a case, particularly due to the age discrepancy been the accused who was 30 years old and the complainant who was 15 years old when the crime was committed. In the Court’s view this age difference placed the girl in a weaker position. The magistrate should have been more critical of the nature of the relationship and taken into account that the family reported the criminal charges against the accused. In the cultural context of Zimbabwe, where some married men believe they may have sexual relations with their wife’s unmarried sister, ordering marriage was considered to condone sexual abuse of minors within the family. The order allows men who abuse children to justify their actions with negative cultural practice. The Court found that the pregnancy of the complainant could have influenced the magistrate’s decision to order marriage however the magistrate failed to ask for her views on the order. The magistrate did not consider whether the order would be in the best interests of the girl, rather the interest of the accused were put first. The Court ordered the trial magistrate replace the eight month suspended sentence with appropriate community service.
Excerpts citing CRC and other relevant human rights instruments:
“Indeed this provision in the law is also significant from the point of view of the State’s seriousness in complying with the requirement of Article 19(1) of the UN Convention on the Rights of the Child (CRC) to which Zimbabwe is a party, that the State should take measures to “protect the child from all forms of physical abuse or mental violence …..maltreatment or exploitation including sexual abuse”. Whilst not automatically incorporated into our law unless done so by an Act of Parliament, international instruments such as this nonetheless provide significant guidelines and permissible prisms for examining local legislation against international standards.”
CRIN believes this decision is in compliance with the CRC. States are required to take all appropriate measures to protect children from all forms of violence including sexual abuse. In General Comment Committee No.13 the Rights of the Child further explained that child marriage was a harmful practice and a form of violence (para.29(e)).
HH 335-13 / CRB M225/10 / REV 33/10
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.