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Too old to do time or too young to deal with rape: Let the scales of justice determine
Justice for Children Trust
July 23, 2012

The story reported in the Daily News on 9 July 2012 about the conviction of an 82-year-old Mabvuku rapist to seven years imprisonment has obviously stirred mixed emotions in the general public. Rape is an intolerable act and the thought of two minor girls being raped by someone whom society looks up to surely brings a chill down peoples spines and invokes a high sense of insecurity in people because people view old people as being full of wisdom and sources of inspiration and not rapists. There was a high level of trust that the victims had in the old man especially taking into cognizance the fact that he was a friend to the girls' grandfather. For the same person to get seven years in prison raises a question of whether there was a gross injustice done to the victims.

Meeting the ends of justice

The graphic insignia of justice is a balanced scale, and this leaves no imagination in one's mind of what justice should entail. Justice denotes equity, even handedness, fair treatment, objectivity and reasonableness. This means when determining any case a balance has to be attained between punishing the wrong doer and restitution of the wronged. In the criminal justice system the accused holds certain rights that have to be protected at the same time the society which has been wronged has to be protected from criminal acts by offenders and would be offenders. The objective of sentencing the offender is not only to punish him, but to deter him and other people who might think of committing such a crime in the near future. In determining the appropriate sentence the presiding magistrate or judge is guided by certain principles and laws. In the case under discussion, the magistrate had to be guided by the provisions in s65 (2) of the Criminal (Codification) and Reform Act which states that in sentencing a person convicted of rape the court should among other things have regard of the following: the age of the person raped; the degree of force or violence used in the rape; the age of the person who committed the rape; and whether the person committing the rape was related to the person raped in any degree. By providing these guidelines the law obviously sought to make sure that the ends of justice are met in each case with respect to its peculiarity. For cases of rape in Zimbabwe one can be sentenced to life in prison once convicted and the magistrate court can give a sentence of up to twenty years. There are obviously mitigating factors when analysing the octogenarian's case and this is mainly with regards to the age of the person convicted and the presiding magistrate stated that, " . . . . . . .. justice must be tampered with mercy. While the sentence for rape is 20 years imprisonment (if sentence is passed by a magistrate court), the court is forced by circumstances to consider Ayamu's age . . . seriously 82 years is very old". The court was probably being guided by the Latin maxim, "nihil magis justum est quam quod necessarium est" meaning "nothing is more just than what is necessary" and thought it was not necessary to imprison the convict for a period of ten years or more since even after the seven years he will be 89 and given the conditions of our prisons he might not even make it past 85. Such leniency by the courts may sometimes be justified but the court still needs to consider whether or not such leniency would tip the scales of justice especially in favour of the offender and consequently not providing enough deterrence for the would be offender.

Too much leniency for Ayamu?

Given the gravity of the offence one still wonders whether the court gave Ayamu undue leniency. To begin with the court only took into consideration of the age of the convicted person and not of the two victims. The court also seems to have downplayed the cunning and calculative nature in which Ayamu committed the offences and not to leave unmentioned the fact that he raped two minors making him a habitual offender. There is also the fact that the two girls had a degree of trust in the offender as they knew him as their grandfather's friend.

The two girls have obviously experienced the unthinkable, the offender has been put behind bars for seven solid years but is this deterring enough for the would be offenders? One wonders if the public can maintain its confidence in the criminal justice system. If the court saw Ayamu to be too old to do time the question that leaves unanswered is are the victims not too young to deal with the fact that they have been abused. Obviously the two minors are deeply traumatised, and that trauma is a prison like experience they will have to live with for the rest of their lives. The balance that had to be met by the justice system was therefore not attained as the court was too lenient on sentencing the octogenarian rapist and did not consider that the victims, a 9 year old and a 15 year old were too young and their age also had to be considered.

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