Court/Judicial body: High Court of Zimbabwe
Date: June 1, 2004 CRC
Provisions: Article 19: Protection from abuse and neglect
Other international provisions:African Charter on the Rights and Welfare of the Child
Domestic provisions:The “Sexual Offences Act,” Chapter 9:21, Section 3(1)(b)
Background: A 23 year-old woman pled guilty to having sexual intercourse with a 6 year-old boy, who had afterward suffered medical complications. The case was sent to the High Court to determine the proper sentence.
Issue and resolution: Sexual abuse; violence against children. The Court sought to determine the appropriate sentence in light of past sentences for similar conduct under the common law of indecent assault, eventually sentencing the defendant to five years’ impisonment with two of those years suspended for five years.
Court reasoning: In passing the Sexual Offences Act providing for sentences up to 10 years’ imprisonment, the legislature presumably sought to recognise the growing problem of the sexual abuse of young children in Zimbabwe. The defendant’s sentence should reflect this. In addition, by becoming a party to the Convention on the Rights of the Child, Zimbabwe committed itself to protecting children from abuse and helping those who were abused to recover from that abuse. Since Zimbabwe had failed to provide adequate counselling or prevention, it was up to the judiciary to do what it could to meet the nation’s obligations. Since a heavy prison sentence would deter abusers and provide psychic benefit to the abused, a stiff sentence was appropriate.
Excerpt citing CRC and other relevant human rights “It seems to me that the legislature in promulgating the Sexual Offences Act, and providing a penalty section which provides for a sentence of up to 10 years imprisonment had recognised the growing problem of the abuse of young children. This was also an acceptance that the common law offence of indecent assault was not effectively dealing with the problem. In my view it was also in recognition that Zimbabwe is also a party to the United Nations Convention on the Rights of the Child (CRC) and a party to the African Charter on the Rights of the Child that the legislation was enacted. Article 19 of the CRC provides as follows: ‘1. State parties shall take all appropriate legislative administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.(Underlining is my own) 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.’ Both [the CRC and the African Charter on the Rights and Welfare of the Child] require State Parties to protect the rights of children by putting in place administrative, legislative and other structures to ensure the full protection of children from all forms of abuse, including sexual abuse. The conventions as can be seen in Article 19(2) of the CRC require State Parties to provide support for the child who has been abused. Sadly in most developing countries, and Zimbabwe is no exception, vary [sic] little is done in terms of counselling and other forms of support due to financial constraints. It seems to me that in these circumstances, the judiciary would be failing in its duty if it did not [hold accountable those who] abuse children sexually. As the evidence of Dr Brakash illustrated, the fact that the offender is punished for the offence assists the child in [the] healing process [ ]. The judiciary would thus play a role in the rehabilitation of the child.”
CRIN comments: CRIN believes this decision is consistent with the CRC in that States should pass laws to prohibit all forms of violence against children, including sexual abuse, and that these laws must be adequately enforced in order to be effective.
Citation: HH 125/2004, CRB 30/03
Link to full judgement: http://www.zimlii.org/zw/judgment/harare-high-court/2004/125/