The tragicomedy, double standards of gender activists
toko

Judge Thokozile Masipa listens to evidence during the Oscar Pistorius murder trial

Joram Nyathi
THE indifferent response by women’s organisations to the recent judgment by Justice Esther Muremba in which she ruled that corporal punishment on male juveniles is now unconstitutional because it violates their “right to protection from inhuman treatment” has left me with the terrible feeling that Zimbabwean women are a fickle lot. They cannot be taken seriously even on women’s issues. They are an inconsistent lot when it comes to the plight of other women.

There is something wrong with both the law and the judgment, and I am going to argue from a layman’s point of view and hope that lawyers will prove me wrong too. But first, some little deviation.

Last year a rich South African white athlete by the name Oscar Pistorius caused the death of his girlfriend Reeva Steenkamp in what many considered a cold-blooded murder.

A black woman who grew up in the slums of apartheid South Africa Justice Thokozile Masipa was assigned the unenviable task to sit in judgment over the white baas.

The Honourable Judge found Pistorius guilty of the lesser crime of culpable homicide instead of murder.

A lot of people were shocked because Steenkamp had been denied justice even in death. The lucky Pistorius was later sentenced to just five years in prison.

People were aghast. But that is the law and the judge.

Still people protested vociferously because it was felt the judgment exposed women to further abuse because of the lenient sentence which set a bad precedent.

Women felt more vulnerable after what was deemed a charade of a judgment and sentence. That was in South Africa.

The furore went beyond because Facebook was clogged with expletives against Justice Masipa.

In our case, Justice Muremba’s ruling followed an appeal against caning by a 15-year-old boy who had been convicted of raping a girl only a year or so younger.

A magistrate sentenced him to receive “moderate corporal punishment of three strokes with a rattan cane” for the offence, the heinous crime of passion which often involves a lot of violence against the victim.

It is that sentence which was overturned on appeal by the insolent and unrepentant juvenile because Justice Muremba’s “interpretation of Section 53 and 86 of the new Constitution” is that corporal punishment is now unconstitutional.

The Supreme Court already ruled more than 20 years ago that the caning of adults was unconstitutional.

Fair and fine.

No one is asking the judge to rewrite the law, that is also unconstitutional. That’s for legislators.

I have an issue with the interpretation.

I hope lawyers will help us on these matters instead of merely copying and pasting from the Roman Dutch and English law.

The law must be rational, not simply legal.

First of all we have two juveniles who engage in a sex act.

Both are below the age of consent to the act, which is an arbitrary 16 years for a girl in Zimbabwe. The age for voting is 18 years when one is said to have attained adulthood.

But it seems they can legally get married and start enjoying sexual pleasures at 16. And the funny thing is that the Sexual Offences Act is framed to suggest that only adult males have sex with young girls and that there are no such relations between juveniles below 18 years.

That leads me to conclude that even the conviction of the boy for rape was problematic if they were both below the age of consent.

Their act was no more than mischief which could only be corrected according to Proverbs: by use of the cane.

Spare the rod and spoil the child. Even traditional society agrees on that.

And the old Constitution of Zimbabwe permitted the imposition of corporal punishment on boys below the age of 18 years for serious misdemeanours. That is in line with the Legal Age of Majority Act as amended.

But it does appear that our new Constitution is discriminatory against young women when the sexual relationship involves a juvenile male.

At least according to the interpretation given by Justice Muremba in overturning the sentence of corporal punishment imposed on the 15-year old boy.

If the offender had been an adult male there would probably have been the mandatory nine years effective etc, etc.

The contradiction and   the anomaly

Justice Muremba said the new Constitution outlawed “torture or cruel, inhuman or degrading treatment or punishment”.

She said the wording in the new Constitution places importance “on the right to protection from inhuman treatment”.

According to her, that right to protection cannot be violated or taken away. If the legislature had intended otherwise, she said, the law should have stated categorically “that moderate punishment inflicted in execution of the judgment or order of a court shall not be in contravention of that right as was the case under the old constitution”.

She went on: “What strengthens my conclusion are further provisions in the new Constitution which protects the right to personal security, equality and non-discrimination.”

There is one given here; we cannot fault the judge for the legislature’s failure to be categorical. It reminds us of the importance of literacy in selecting our law-makers.

Secondly, if the legislature didn’t mean what came out in the Constitution, we can also blame it on poor draftsmanship or the drafters’ failure to grasp what was intended, thus giving us what amounts to ridiculous interpretation, and here is why Justice Muremba cannot easily escape Justice Masipa’s fate.

First, she is a woman. But the girl who was raped has vanished completely from the picture.

The girl is a victim of rape, a crime which involves degrading and inhuman treatment.

She was the one whose security and sense of equality were violated. But she is being “discriminated” against even after the act. All we hear about is the appellant.

He is the only one who enjoys “the right to protection from inhuman treatment”.

And our woman are silent as death.

What hypocrisy!

These are the same women who a few weeks ago made noise about the right of a mini-skirted 28-year-old woman to strut on the street in the centre of Harare, but won’t raise their voice over an ignorant girl below the age of 15 years who is raped and cannot get justice.

There is apparently no law to protect her from this humiliating, degrading and discriminatory treatment.

It is the convicted offender who appears to require more protection, and the courts are happy to offer that security so that even the magistrate’s rod cannot reach his precious bums, let alone do time behind bars!

So which punishment is not degrading, what justice for the girl?

It is like some bizarre logic which gives freedom of expression cult status while ridiculing other people’s religious beliefs.

Finally, I have an abiding belief that the only unfailing tonic for an enduring relationship is a healthy balance of respect and fear.

Talk about a married couple, children and parents, students and pupils and workers and employers.

What are we trying to achieve when we say our children, whom we deem too young to make informed, independent decisions on voting or sex, cannot be disciplined with the aid of a cane for mischief at school?

“Mischief” because one not yet an adult should have no capacity to commit a crime surely?

Why should a teacher waste his time on students who have the protection of the law to ignore or insult him during a lesson?

That laws deserves a re-look before we bring up little devils.

You Might Also Like

Comments

Take our Survey

We value your opinion! Take a moment to complete our survey