Punishment for sex offenders under the Sexual Offences Act is administered on a graduated scale. This means that the younger the victim, the more severe the punishment.
For a victim who is 11 years and below, the perpetrator will be handed life imprisonment. If the victim of defilement is between 12 to 15 years, the offence attracts 20 years in prison while an offender who defiles a minor aged 16 to 18 years will be handed 15 years behind bars.
What then happens if the minor is aged just above 11 years but has not reached 12 years or 15 years and a few months old? Court of Appeal judges had to grapple with the issue recently in a case against Chigongo Dzuye who had been sentenced to life imprisonment in 2017 for defiling a minor.
In the second appeal — the first appeal before High Court judge David Majanja was dismissed on September 5, 2018— Dzuye argued that it was improper to impose life sentence against him under Section 8(2) of the Sexual Offences Act since the victim was 11 years and 10 months. The convict argued that he ought to have been sentenced under Section 8(3) of the said Act, which prescribes a lesser sentence (maximum of 20 years in jail).
Dzuye argued that since the law does not provide for punishment for a victim who is above 11 years but below 12 years, such a victim ought to be deemed to be 12 years. He submitted that to hold otherwise, is an attempt to place a shortfall in a statute that is occasioned by the legislature, on the shoulders of the person charged under that Act.
Dzuye urged the court to allow his appeal on the conviction of the lesser charge under section 8(3) of the Act and impose a more lenient sentence. “The question then arises, is a victim who is, for example, 11 years and six months old at the time of defilement to be treated as 11 years old, or as more than 11 years old? If the victim is treated as more than 11 years old, to what term is the offender to be sentenced since the victim has not attained 12 years for which a sentence is prescribed?” Justices Jessie Lesiit and George Odunga posed.
The two judges pointed out that the onus is always on the prosecution to clear doubts, failure to which the benefit would go to the appellant. “Since an interpretation that leads to the conclusion that offenders falling within the said grey area are not covered by the Act would be absurd and unjust, we are called upon to use our good sense to remedy the situation to do what Parliament would have done, had they had the situation in mind,” said the judges.
The judges said to avoid absurdity which would arise if they were to start dealing with situations where for example a victim is one day older than 11 years, they agreed with the interpretation of another bench delivered in 2016. In the earlier appeal by Hudson Ali Mwachongo, a different bench said, “On the face of it, an attractive argument is that there is doubt as to the age of the victim and that the benefit of the doubt ought to be given to the accused person so that the less severe sentence is imposed.”
The court stated that where the victim is say, 15 years and two months, she would be treated as 16 years so that the accused person is sentenced to 15 years imprisonment, as though the victim was aged between 16 and 18 years, instead of 20 years for a victim of 15 years.
In yet another case Alfayo Gombe Okello, Court of Appeal judges said where a victim who is days or months above 11 years, will be treated as 11 years old so long as he or she has not attained 12 years of age.
“On the same reasoning, the victim in this case who was 15 years, six months and 13 days old must be treated to be 15 rather than 16 years old,” the court said. Dzuye was charged before a Mombasa magistrate with defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act. He also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
The evidence presented to the court was that he lured the victim into his house and defiled her. The minor later narrated the incident to her grandmother and together with a member of Port Reitz Community Policing, to whom the report was made and members of the public, Dzuye was apprehended and taken to Changamwe Police Station. Upon examination, it was found that the minor had a broken hymen and was infected with HIV. In his defence, Dzuye denied that he committed the offence and asserted that the charges were maliciously instigated.
In his judgement, the trial magistrate found that the prosecution had proved all the ingredients of the offence, convicted him and sentenced him to life imprisonment. Dzuye appealed to the High Court because the prosecution case was not proved beyond reasonable doubt and his defence was not considered. He also faulted the trial magistrate for imposing the life sentence but Justice Majanja upheld the conviction and the sentence.
In the second appeal, Justices Lesiit and Odunga noted that none of the two courts below considered any mitigating circumstances such as the contention by Dzuye that he was a first offender, a fact that was not challenged by the prosecution. The judges said they could not be certain that the life sentence would have been imposed if mitigation had been considered. According to the Court of Appeal, the Judiciary has a mandate under Article 159 (2) (a) and (e) of the Constitution to exercise judicial authority in a manner that justice shall be done to all and to protect the purpose and principles of the Constitution.
This, the court said, includes the provision of Article 25 which provides that the right to a fair trial is among the Bill of Rights that shall not be limited. “In the end, courts must dispense justice not only to the complainants but also to accused persons,” the court noted. The two judges said whereas the sentences prescribed under the Sexual Offences Act are not unconstitutional by the mere fact of such prescription and the trial courts are at liberty to impose them, the imposition of the same, as the minimum mandatory sentences, does not meet the constitutional threshold. “In the premises, we set aside the life sentence imposed on the Appellant and substitute therefore a sentence of 30 years to run from the date of his original conviction,” added the judges.
