Musasa calls for mandatory minimum sentence for rape and sexual violence

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Cecilia Kamuputa

There has been an urgent plea from the civic society for the government to put down a mandatory minimum sentence for rape and sexual violence as a deterrent measure to would-be offenders and to give survivors the courage to report sexual violations.

Speaking on the sidelines of the Policy Roundtable Meeting on the Mandatory Minimum Sentence for Rape and Sexual Violence in the capital on Tuesday, Musasa Project Director, Precious Taru stated that as Musasa, they had noted with great concern, over the years, the varying sentences being handed down to perpetrators of rape and sexual violence and how this has led to no clear message on the gravity of the crime being sent to would be offenders.

“The main reason we have varying sentences is because there is no mandatory minimum sentence for these crimes, the sentencing is at the discretion of the magistrates,” expressed Taru.

Taru added that the putting down of a mandatory minimum sentence would help in Musasa’s survivors’ handling process.

“There has been a surge in rape cases and this shows that the system we currently have in place is weak and not deterrent enough.”

According to Zimbabwe National Statistics Agency (ZIMSTAT) data, in 2016, Zimbabwe recorded a 42% increase in rape cases over 6 years. This translated to 21 women being raped daily and one woman being sexually abused every day.

Taru argued that the state had put in place a mandatory minimum sentence for livestock theft whilst the power authority had also put down a minimum sentence for copper cables theft yet there was no mandatory minimum sentence in cases involving people’s lives.

According the Stock Theft Prevention Act, as amended at 1st December 2007, a case of stock theft will attract a minimum sentence of imprisonment of nine years.

“Where a person is convicted of stock theft in contravention of s 114 of the Criminal Law [Codification and Reform] Act, [Cap 9: 23], and there are no special circumstances, the court has no choice but to impose nothing less than the minimum mandatory penalty of nine years’ imprisonment.” – S v Togarepi (HMA 08-17 CRB GT 791/16) [2017] ZWMSVH 08.

In the same vein, contravening section 3(1) of the Gold Trade Act [Chapter 21:03] attracts a mandatory minimum sentence of five years imprisonment whilst contravening section 45 (1) (b) of the Parks and Wildlife Act [Chapter 20:14] carries with it a mandatory minimum sentence of 9 years imprisonment.

Speaking during the same event, Zimbabwe Women Lawyers Association (ZWLA) Director Abigail Matsvai reiterated that putting down a mandatory minimum sentence for rape and sexual violence was important in determining the appropriate sentences of the crimes taking full account of the nature of this crime together with its short and long term consequences.

“The law gives the court room to hand down different sentences,” said Matsvai, “this is where the problem is emanating from.”

She added that Zimbabwe has 52 magistrate courts with each magistrate considering different things when passing down a sentence whilst there are also differences in opinion between the magistrates and the high courts.

“This leads to the question, should we not be thinking of mandatory minimum sentences sentence for rape and sexual violence?”

According to Thompson and Simmonds, 2012, a majority of African countries have enacted minimum sentences for rape and sexual assault in addition to other reforms with several going further to creating minimums for “defilement” or alternatively, redefined the offence so that the minimum sentences for rape or sexual assault apply in cases of non-consensual sexual acts involving minors, and all cases involving children under a certain age.

“In Tanzania and Zambia, for example, law-makers have simply imposed high mandatory minimum sentences for all cases of rape or defilement regardless of the circumstances of the case,” read the report

“In Zambia, the minimum is 15 years for rape or defilement, 5-14 years for attempt. In Tanzania, the minimum is even higher – 30 years for rape/defilement and attempted rape.”

The report added that in these countries, the law does not distinguish between consensual or non-consensual sex if the victim is under a certain age nor do the statutes distinguish between “aggravated” cases and those that are not.

In their paper, Musasa proposes a minimum mandatory sentence of 60 years in cases involving minors aged 12 years and below and those living with disability and 40 years for all other sexual violence cases.