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Phyllis Kachere-Deputy News Editor (Convergence)

FORTY-FIVE-year-old Colleta Manyange cuts a forlorn figure as she recalls events of the day which resulted in her being jailed.

She was convicted of assisting her husband to rape her niece, but almost five years later, he has not been arrested.

“November 28, 2019 is the day my life turned upside down. Since the day police knocked violently on my door in the middle of the night looking for my husband, my life has taken a turn for the worst.

“To this day, I still cannot believe that I am in jail serving a 13-year sentence for assisting my husband Forget Kuipa to rape my niece, then a 13-year-old (name protected). Forget has never been arrested, he is roaming free while I am in prison,” said Manyange.

She was sentenced to an effective 10 years, three years having been set aside with the usual conditions. When she got to prison, her sentence was whittled down by another three years and eight months.

She will now be released on September 6.

As Manyange of Gwabi Village, Gono, in Shamva District narrated her ordeal to this news crew from Chikurubi Female Prison which has been her home since 2020, one could see the painful wince on her face, as the emotional pain blew in her head with a terrifying blankness that ended in a quiver. 

A slight stutter and a sigh would follow throughout the interview as she tried to calm and collect herself, while searing hot tears cascaded down her cheeks.

“I stayed with my niece because her parents separated and her father had taken a new wife. She had been staying with her maternal uncle and moved in to stay with me as she was accused of being delinquent. Since my brother, her father could not stay with her, I became the natural choice to take her in. As I stayed with her, the delinquent pattern would continue, characterised by unexplained disappearances from home,” she said.

She said during their stay together, she had registered her niece with an organisation that advocates children’s welfare — SOS — who would pay her school fees and provided some money for her upkeep.

Manyange said when her niece started menstruating, she had problems as she would bleed continuously for as long as two weeks non-stop.

“I took her to Chakonda Clinic where she was given tablets to stop the bleeding. Later, some officers from SOS came and took her to Shamva District Hospital where they left her. Two days later, she absconded and came home.” 

Another time, Manyange alleged that her niece disappeared from home and resurfaced at an aunt’s home with swollen legs which she said were from walking a long distance, claiming she had walked from Madziwa to Chakonda (about 25km). The girl is said to have told the unidentified aunt that she had gone to the Social Welfare Department in Chindunduma and later to Madziwa and decided to come back to Manyange’s home.

She then took a rest at the unidentified aunt’s home in Chakonda as she was too tired while her legs were tired and swollen from the walking. 

Tired of the unexplained disappearances from home by the girl, Manyange said she gave her an ultimatum to go to her father’s place as she could not continue staying with her.

Manyange explained that at one time, she intended to go to Mozambique on her cross border trade business, but could not find anyone willing to look after the minor during her absence. Eventually, in desperation Manyange said she convinced her mother-in-law to help out. 

“She moved out of my home but would be seen at our local shops at odd hours, prompting neighbours to alert me. I would go to try and find her but never found her. Eventually, she came home with my sister Emma Manyange and collected her items. Emma said she was taking the minor to the Social Welfare Department,” said Manyange. 

Shortly after Emma’s visit, Manyange said police then made the surprise midnight visit to her on November 28, 2019 looking for her husband Forget whom they accused of having raped the child.

“When police violently knocked on my door at around 2am, I assumed that maybe Forget had been involved in some illegal gold panning activities, since he is an artisanal  miner. I opened the door after they identified themselves and they rushed in searching high and low for him. 

“They asked for him and I told the police that he must be at Tsoka’s Mine where he was working that time. They then told me I was under arrest for assisting my husband to rape my niece. I was shocked as I had not committed such a crime. In my mind, I thought they were playing mind games and would release me if I disclosed where my husband was. But that was not to be,” narrated Manyange with tears running down her cheeks.

She said she appeared in court and was remanded in custody. 

Police never arrested her husband, Forget Kuipa, despite him staying at his home with some of Manyange’s relatives reporting that they would often see him at his home.

“I was in remand for seven months as they said the case could not proceed until Forget was in the dock. Forget was never arrested but I was convicted of assisting him to rape my niece. Till today, Forget is still roaming free. He never visited me in remand to check on why I had been arrested. Even after my conviction, he has never visited me. I expected him to come and let the court process to proceed. 

“My relatives have approached Shamva police on numerous occasions to alert them on Forget’s whereabouts, but police keep telling them that the case needs new investigations. My question is when will the new investigations be done? What is stopping them from investigating? Are they being bribed? I need answers,” pleaded Manyange.

In an interview, legal expert Mr Edward Madziwa said: “Under Section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], rape is defined as a crime committed by a male who knowingly engages in sexual intercourse or anal sexual intercourse with a female without her consent. The law requires that the perpetrator must be aware of the absence of consent or recognise a real risk that consent is not present.”

He explained that while the law primarily defines rape as a crime committed by a male against a female, exceptions exist. “Under Section 197 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], females can be charged as accomplices to rape. This is because they typically lack the physical capacity to commit the act themselves.

“In this regard, factors such as the knowledge of the act of rape occurring, active participation in facilitating the crime, and intent to assist in its commission even if the actual perpetrator is unaware of any assistance rendered should be considered. 

“Actions that may constitute assistance include physically overpowering the victim, providing transportation for the perpetrator or the victim, hiding evidence, or encouraging or inciting the perpetrator to commit the act. This broader understanding of complicity in rape underscores the importance of accountability for all individuals involved in such crimes, reinforcing the necessity for a comprehensive approach to addressing sexual violence in society,” said Mr Madziwa.

He said in light of Manyange’s case, it was proper for an accomplice to be convicted without the actual perpetrator being brought before the courts of law for trial. 

“This is because the principle of accomplice liability under Zimbabwean law holds an accomplice liable based on their own culpable conduct, independent of the status of the principal offender. To convict an accomplice, the prosecution must establish that the accomplice had the intent to assist in the commission of the crime and that the accomplice engaged in actions that facilitated or encouraged the actual perpetrator’s commission of the offense.

“Importantly, the conviction of an accomplice does not depend on the conviction of the actual perpetrator. The prosecution can obtain a conviction of the accomplice as long as they prove the accomplice’s involvement in the crime, even if the principal offender is not identified, apprehended, or prosecuted. 

In the event that the actual perpetrator is found and finally brought to trial, their conviction or acquittal does not automatically exonerate the accomplice. This is due to the operation of the principle of independent liability, which allows for the accomplice’s liability to be assessed separately based on their own culpable conduct,” said Mr Madziwa. 

He said however, if it is ultimately established that the alleged crime never took place, then in legal terms, the absence of a crime means that there is no basis for liability for either the accomplice or the principal offender. 

“Without a proven crime, there are no grounds for prosecution against either party.”

 National police spokesperson Commissioner Paul Nyathi said they have since launched investigations to establish what transpired and why Forget Kuipa has not yet been arrested.

“We are grateful to the Zimbabwe Prisons and Correctional Service for bringing Colleta Manyange’s case to our attention. We are in constant touch with them and I would like to assure the nation that the ZRP has launched investigations to establish what transpired and why Forget Kuipa, Manyange’s husband has not yet been arrested since 2019,” said Comm Nyathi.