DISSECTING SEXUAL OFFENCES IN ZIMBABWE: STATISTICS, TRENDS & FAILURE OF THE SYSTEM

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Mhaka Tinatswe

Editor

Sexual Offences are acts of a sexual nature perpetrated against a complainant without their consent or against a person who does not have the capacity to give it i.e. minors and those with reduced mental capacity medically or temporarily i.e. duress or intoxication. These crimes are listed, defined, and prosecuted using the Criminal Law Codification (Law and Reform) Act 9:23. These are categorized and worded as follows 

Indecent Assault (Section 67)

any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than sexual intercourse or anal sexual intercourse or other act involving the penetration of any part of the female person’s body or his own body. Indecent assault also operates a competent charge where a person is charged with another sexual offence and the evidence is not sufficient for conviction.

Aggravated Indecent Assault (Section 66)

When a male person :

(i) commits upon a female person any act, other than sexual intercourse or anal sexual intercourse, involving the penetration of any part of the female person’s body or of his own body; or

(ii) commits upon a male person anal sexual intercourse or any other act involving the penetration of any part of the other male person’s body or of his own body

AND

When  a female person: 

(i) has sexual intercourse with or commits upon a male person any other act involving the penetration of any part of the male person’s body or of her own body; or
(ii) commits upon a female person any act involving the penetration of any part of the other female person’s body or of her own body;

Simply put, according to the Criminal Code any act of penetration that does not involve penal to vaginal penetration constitutes aggravated indecent assault. While the act itself is described,  the charge of rape is exclusively used to prosecute vaginal penetration against women.

Sexual intercourse or performing indecent acts with young persons (Section 70)

Any person who: 

  1. has extra-marital sexual intercourse with a young person; or
  2. commits upon a young person any act involving physical contact that would be regarded by       a reasonable person to be an indecent act; or 
  3. solicits or entices a young person to have extra-marital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a young person

The provision is what is commonly described as statutory rape and is used to prosecute perpetrators that have had what they allege to be consensual sex with minors over the age of 12 but below the age of 16. The difference between sex with a young person and rape is that while rape is nonconsensual, sex with a young person is unlawful due to the age of the complainant. 

Rape 

When a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse 

(a) the female person has not consented to it; and 

(b) he knows that she has not consented to it or realizes that there is a real risk or possibility that she may not have consented to it; 

So while offences are listed in the statute,  the charge with which a perpetrator is arrested is up to the investigating officer (Zimbabwe Republic Police), the crime with which he prosecuted is determined by the public prosecutor (National Prosecuting Authority), and the conviction/sentence is determined by a Magistrate appointed by the Judicial Service Commission. Though most countries have similar pathways, Zimbabwe has a low functioning conservertive , male dominated formal justice system with low range to deliver results for survivors. Economic hardship speaks directly to the prevalence of corruption and a significant number of reports are intentionally neglected or misplaced until complainants give up. Case experince indicates the Zimbabwe Republic Policeis consumed by high levels of  corrupt indiscretions, and beyond that the force has made several  insenstive statements that display a lack of understanding of rape culture and inaction towards the prevalence of sexual gender based violence. Due to low resources, the National Prosecuting Authority faces issues with expedient justice; overcrowding of prisons, the unreliability of transport that brings perpetrators to the court, and low morale of other government officials that make up part of the prosecution’s witnesses, e.g. police officers, public nurses, social workers. Inside the courthouses public prosecutors have no computers, internet connection, or a database to refer to for research or investigation. The Judicial Service Commission has a constitutional mandate to promote gender balance in Zimbabwe, and in it’s own structures, yet there have been no efforts to create a separate court for sexual offences, or remedy current failures to follow through with trials. Statutes such as The Domestic Violence Act, state that complainants in matters can access psychosocial support from government appointed counsellors and yet that service does not exist. It is only of several unutilized (see The Domestic Violence Act, The Termination of Pregnancy Act, The Criminal Law (Reform and Codification)  due to complacency and prejudice  exhibited by the judiciary for decades. The administrative inadequacies of these branches of government also speak to the quality of assistance complainant’s in cases are given. A majority are mistreated, slandered, ridiculed countless times throughout the referral pathway, making it easier for them to withdraw their cases or completely disappear. Initiatives to capacitate officials are regularly implemented by non profits but the reach is limited without meaningful support of the JSC. Gender activism in Zimbabwe is not only outnumbered, it is out organized.

In 2019 the National Prosecuting Authority completed only 9.4 % of sexual crime trials at Rotten Row Criminal Court, Harare. Of the trials left pending, a majority are matters that are postponed for months until they are eventually put aside to be dealt with later. But due to understaffing some matters can end at that stage, with complainants receiving no contact from the court. The physical safety of any court records is also consistently compromised. Without a database or electronic records files are misplaced, making it easier for corruption to be carried out seamlessly. 

Below are 2019 and 20120 statistics of the total number of sexual offences prosecuted at Harare and Criminal Court. 

HARARE

2019 PROSECUTION STATISTICS

TOTAL # OF CASES211
ONGOING177
ACQUITTED8
SENTENCED16
WITHDRAWN11

2020 PROSECUTION STATISTICS                    

TOTAL # OF CASES157
ONGOING147
ACQUITTEDN/A
SENTENCED5
WITHDRAWN4

 ACCESS THE FULL REPORT HERE 

OTHER RELEVANT RESOURCES 

https://www.refworld.org/docid/4c46c4de2.html

https://acjr.org.za/resource-centre/Sokwanele-report-i-can-arrest-you.pdf

https://reliefweb.int/report/zimbabwe/zimbabwe-helping-victims-gender-based-violence

https://www.tandfonline.com/doi/full/10.1080/23311975.2020.1769806