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Are courts applying the law?
Justice for Children Trust
March 17, 2011

The media is doing a sterling job in reporting cases of child abuse. This raises awareness on the menace posed to children and how the justice delivery system is working to protect children. The Herald carried one such story in which a Chitungwiza Court sentenced a nine year old boy charged with five counts of rape to two strokes and a wholly suspended three year jail term. It is appalling that a nine year old boy was charged, tried, convicted and sentenced for rape.

The law requires that a child's age should be considered before being charged, let alone tried for any criminal offence. The Criminal Law (Codification and Reform) Act provides that a child below the age of 7 years shall be deemed to lack criminal capacity to commit any crime and shall not be tried or convicted of any crime. The Act then goes on to highlight that children between the ages of seven and fourteen are presumed to lack the capacity to form an intention or where negligence is an element of the crime concerned to lack the capacity to behave in a manner an adult would behave in the circumstances. The onus therefore lies with the state to establish beyond reasonable doubt that the accused child was mature and understood that the act constituting the offence was wrongful. The law also requires the authority from the Attorney General to prosecute such a child.

Before the enactment of the Criminal Code, there was an irrebuttable presumption that a boy below age of 14 years was incapable of having sexual intercourse. The Code amended this irrebuttable presumption which now apply only to boys below the age of 12 years. There is now a rebuttable presumption that a boy over the age of 12 years but below the 14 years is incapable of performing sexual intercourse unless the contrary is shown on a balance of probabilities. This law, in simple terms means that a child below the age of 12 years is incapable of performing sexual intercourse. This then brings the question on what provision of law was used to charge, try, convict and sentence a nine year old boy of rape. The Attorney General cannot even authorize the prosecution of such a child who is below the age of 12 years for rape because the law provides that the child is incapable of having sexual intercourse.

It is undoubted that children are committing serious offences like rape, murder or armed robbery. Our law has set the standards in the manner in which children should be handled meant to protect children from the retributive criminal justice giving way to a more rehabilitative and restorative justice taking note of the children`s ages. The child in this case according to the law, was not supposed to have been charged let alone convicted and sentenced. The court should be able to protect the children by implementing the law as it is.

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