Wellington Thomas Pasipanodya Review Correspondent
This article is triggered by The Herald article of October 13 2015 which read: “PREGNANT PUPIL WITHDRAWS RAPE CHARGES”. The article reports that reported judicial officers sworn to protect without favour and to uphold the law convened a court sitting and based on the withdrawal affidavit by the raped minor’s grand-mother, proceeded to consent to the request to have the criminal charges withdrawn.
The grandmother is alleged to have based her application for withdrawal on the accused’s promise to look after the pregnant victim and the child she would bear. It does not appear as though the withdrawal was based
Surely a verbal undertaking by a rapist who is in custody cannot be taken seriously before any court of law.
No amount of promise to purchase baby preparation clothes or to marry the minor can right the wrong that was perpetrated on an innocent minor who is incapable of understanding the pleasures and risks of sexual exploits.
The manner in which this matter was handled is a penny short of smelling fishy.
The way the judicial officers handled this case does not take into account the fact that cases of rape of minor children are prevalent in Zimbabwe and there is an urgent need for deterrent measures by the passing of appropriate punishment of these paedophiles. In Zimbabwe child abuse often goes undetected or unreported by those closest to it.
The court did not take steps to protect the best interest of the raped child as guaranteed by the Constitution of Zimbabwe. The minor child’s rights to protection from abuse and to equal treatment of the law was not given by the court.
The court ought to have done a diligent inquiry with aim of protecting the raped and pregnant minor child. The court failed in the discharge of its duties in that it over looked the fact that the minor child required state services and support.
Further, child victims of rape can be severely traumatised by the assault and may have difficulty functioning as well as they had been used to prior to the assault. There is therefore no relationship that can be established between the minor child and the rapist that is capable of flourishing thus the court was duty bound to ensure that the rapist answers to the charge and allegation of rape.
In essence when a criminal report is made to the Police by a parent or any adult in a position of trust or responsibility on behalf of a minor, that person is only acting as the primary guardian of the minor child. That parent or guardian is only duty bound legally to bring to the attention of the police the illegal and unlawful act against on a minor.
Whilst a biological mother or father of a minor child is considered as the primary care provider of a minor child such rights of custody and guardianship are not absolute and are subject to approval and assessment by the State.
A grand-parent’s rights of guardianship are not the same as those of a natural parent as such a grand-parent lacks the legal authority to withdraw criminal charges against an accused who has raped a minor child.
My sentiments are derived from section 81 (1) (a) and (e) of the CONSTITUTION OF ZIMBABWE AMENDMENT (No. 20) ACT 2013 which states that-
“(1) every child, that is to say every boy and girl under the age of eighteen years, has the right -
(a) To equal treatment before the law, including the right to be heard;
(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse;
(2) A child’s best interest are paramount in every matter concerning the child.
(3) Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.
It then follows that according to the constitution of Zimbabwe which is supreme law of the land, the High Court of Zimbabwe enjoys all power and privilege as the upper Guardian of all minor children in Zimbabwe to make a decision on whether to prosecute or withdraw charges against an accused person charged with any sexual offence against a minor.
The police report on behalf of the minor triggers a chain of events towards prosecution of an accused person. Even if the complainant tries to withdraw charges after a docket has been opened the investigating officer dealing with a complaint for an offence of a sexual nature cannot and should not simply accept a withdrawal affidavit by a parent where a complaint of a sexual offence against a minor has been made.
The investigating officer is duty bound to approach the High court of Zimbabwe or at least the magistrates’ court in terms of the constitution and request the court to make a diligent inquiry before any withdrawal of charges formalities are done. In short it is neither the prerogative of the parent or the police officer to decide and agree to withdraw criminal charges of an offence of a sexual nature against a minor.
That authority is constitutionally vested in the courts of law and where anyone does anything to the contrary they should face the full wrath and censure of the law. Thus in the absence of a certificate of consent or a court
order permitting the withdrawal of criminal charges in a complaint of a sexual nature perpetrated on a minor child, the police officer must simply complete investigations and forward the docket to the office of the Prosecutor General for prosecution in a court of law.
In cases of rape of minor children the office prosecutor general must apply the Criminal Law Codification and Reform act as read with the Constitution of Zimbabwe for the benefit of public interest.
The Prosecutor General prosecutes on behalf of the public at large and not just in the interest of any particular individual. As such a parent or guardian of a minor child cannot override the very important need for public interest especially where children are involved.
The Constitution of Zimbabwe makes it apparent that the parental rights of the High Court of Zimbabwe are greater than those of any natural parent or guardian.
Further provisions in the same Constitution protect the right to personal security, equality and non -discrimination in the form of section 52 (a) which states that-
“Every person has the right to bodily and psychological integrity, which includes the right—
(a) to freedom from all forms of violence from public or private sources.”
Further Section 56 deals with equality and non-discrimination. It reads,
“(1) All persons are equal before the law and have the right to equal protection and benefit of the law.
(2) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.
(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if— (
a) They are subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected; or
(b) Other people are accorded directly or indirectly a privilege or advantage which they are not accorded.
(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.”
Any decision to withdraw charges where a complaint of a sexual nature perpetrated any form of assault against a minor child should be the purview of the High Court of Zimbabwe.
The act of withdrawing such charges by a parent or guardian for financial consideration is in breach of the above cited constitutional provisions in that it is tantamount to discrimination and robbing the child victim of their right to equal protection of the law.
In conclusion No parent or police officer, public prosecutor or magistrate can consent to withdraw charges in cases where a criminal complaint has been made against an accused person for rape of a minor. Such an act is criminal in itself.
Raping a minor child is unnatural, immoral and evil. A study conducted revealed that human beings are the only mammals on earth who perpetrate sexual attacks on children. The need to protect our children as society can never be over emphasized.
The writer is a senior partner with Manase and Manase Legal Practitioners