UNIVERSITY OF ZIMBABWE

                       
AN APPRAISAL OF THE MINIMUM MANDATORY RAPE SENTENCE IN ZIMBABWE.

                                                                                        BY

                          PANASHE MELISA MUJURU

                                                                                        (R191672X)
                                                                                                (LLBS)

               
                                                                      DISSERTATION PROPOSAL

                                                      SUPERVISOR: MRS KANYANGARARA

1.0 Introduction

In response to the issue of violence against women and children, various nations in
East, Central, and Southern Africa have amended antiquated criminal laws pertaining to
rape and other types of sexual and gender-based violence in the last ten to twelve years
and its been long overdue in Zimbabwe. Legislative revisions have varied from minor
adjustments to sexual offenses law to significant overhauls of existing penal code
provisions. Redefining and/or creating new offenses, gender-neutralizing sexual
offenses, providing victims with procedural and evidential safeguards, and raising the
penalties for sexual crimes are just a few of the changes that have been made. Several
nations in the region have imposed mandatory minimum terms for sexual offenses like
rape and "defilement" as part of the reform process. These have typically been
introduced in reaction to the widespread opinion among the public and some
parliamentarians that offenders were not being appropriately punished for these crimes,
as well as the public uproar over high rates of sexual violence, particularly against
children. High mandatory penalties, according to supporters, would deter sexual
assault, and victims would be more likely to come forward if they thought offenders
would face jail time. Others countered that statutory minimums would guarantee just
punishment and result in more consistency in sentencing.

High punishments were seen by many as necessary to stop the transmission of HIV to
women and children from sexual assault, which was another justification for the HIV
epidemic. Rape is a heinous crime criminalized by Section 65 of the Criminal code of
Zimbabwe, despite its criminalization the general sentence which was passed to rape
offenders seemed not to have a deterrence effect as the cases of rape escalated. In
Zimbabwe, there are 22 rapes per day, one abuse every 75 minutes, an average of 646
abuses per month, and one in three girls are raped or sexually assaulted before the age
of 18, according to Sangarwe, who was quoted in a campaign to raise awareness
before the year 2022’s 16 days of activism against gender violence.1That alone was
evidence of the inefficiency of the rape sentence for one of the essence of a sentence is
to deter the rape crime. This however saw an outcry from members of the public,
parliamentarians and human rights NGOs like Musasa calling for a minimum mandatory
sentence for rape. Precious Taru, the project director for Musasa, 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 had led to
no clear message on the gravity of the crime being sent to would-be offenders. There is
no obligatory minimum penalty for these crimes, hence the magistrates' discretion is
used to determine the appropriate sentence, according to Taru. 2 In Taru's opinion, the
handling of Musasa's survivors would benefit from the imposition of a mandatory
minimum term. The increase in rape cases demonstrates the weakness and lack of
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deterrence of the system currently in existence.3The minimum mandatory sentence bill
was then passed late 2022 to be 15 years. However, the question remains is this the
answer to curb rape escalations in Zimbabwe. In the Southern Africa region many
jurisdictions have enacted the minimum mandatory sentence for rape and its
effectiveness is questionable considering a case study of South Africa though the
enactment of the sentence rape is still rife .One would see that the rape law needs
aiders for it to be effective rather the minimum mandatory sentence for rape glaring
problems like overcrowding of prisons amongst others .The minimum mandatory
sentence for rape will not have a significant impact in the absence of other legal
institutional and societal reforms for there is no evidence that high sentences would
deter the rape escalation rates .

1.1Background
Rape is a heinous crime penalized by section 65 of the    Zimbabwean Criminal law
(Codification and Reform) Act [Chapter 9:23].The aforementioned section 65 clearly
stipulates what constitutes to be rape and the sentence as follows; A male who
intentionally engages in sexual or anal activity with a female and the female has not
given her consent at the time of the activity, and the male knows that she has not given
her consent or realizes that there is a real risk or possibility that she may not have given
her consent, is guilty of rape and subject to life in prison or a lesser sentence. In this
instance the general discretion in sentencing rape is life in prison or a lesser sentence.
A rape sentence ought to serve as a retribution and deterrence measure of rape.
However, in Zimbabwe it has been questionable instead of a rape sentence to influence
the reduction of the heinous crime of rape the crime is escalating. Zimbabwe Gender
Commission Margaret Sangarwe is quoted as saying during a publicity campaign prior
to the commemoration of this year's (2022) 16 days of activism against gender violence:
"In Zimbabwe, twenty-two women are raped daily, one woman is abused every 75
minutes, and an average of 646 women are sexually abused monthly. One in three girls
is raped or sexually assaulted before the age of 18."Rape cases increased by 74%
between 2010 and 2018, according to crime statistics from the Zimbabwe National
Statistics Agency (Zimstat), which were derived from police files. There were 4,450
reported rape cases in 2010. There were 7,738 reported rape cases in the previous
year. The 2018 number equates to an average of 21.2 rape cases daily. The number of
rape cases in the first two months of 2019 was 636 in January and 625 in February.
Since 2010, 2016 has had the most reported rapes with 8069 occurrences, resulting in
an average daily rate of 22.1.However, despite rape crime escalation in Zimbabwe it
cannot be compared to countries like South Africa where the number of sexual offenses
reported to the South African Police Service (SAPS) has increased by 1,666 compared
to last year (2021). Sexual offenses soared by 13.7% in the first three months of 2022,
to 13 799. Police Minister Bheki Cele released the statistics. This does not however
suggest that the general discretion of rape sentencing in Zimbabwe needs not to be
redressed it surely needs to so as to serve as a deterrence measure for the escalating
rape in the nation. Currently there has been a serious urge for Zimbabwe to adopt the
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mandatory minimum sentence of rape suggesting that the deterrent effect arises from
the assumption made by lawmakers that if a crime has a default and predetermined
punishment, offenders and future offenders will be discouraged from committing the
crime.Several nations in the region for instance South Africa have imposed mandatory
minimum terms for sexual offenses like rape and "defilement" as part of the reform
process. These have typically been introduced in reaction to the widespread opinion
among the public and some parliamentarians that offenders were not being
appropriately punished for these crimes, as well as the public uproar over high rates of
sexual violence, particularly against children.

More so , the varied sentences handed down by magistrates some lenient have
necessitated the call for mandatory minimum sentence for rape to curb the
inconsistences based entirely on judges discretion. The Supreme Court determined that
the punishments issued in a number of cases involving adult men who raped children
were too light, or that it may be argued that they were.The sentence reduction was
overly light.In S v. Ncube, HB-136-17, the appellant was found guilty on two charges of
rape after dragging the 12-year-old into some bushes. He was given a sentence of 12
years in jail, of which 4 years were conditionally suspended, making the actual
punishment of 8 years.His appeal against the judgement was rejected 4. In S v Mafuwa
HH-664-17, a 40-year-old instructor lured a 4-year-old preschooler to his office before
raping her. After raping the plaintiff, the appellant threatened to sever her head from her
body if she told anybody about the crime. He also instructed her to claim that schoolgirls
had raped her if anyone questioned her. After the rape, the complainant returned home
and told her mother that she was in pain. Her mother then looked inside of her and saw
bruises on her genitalia; the rape was then reported to the police. The teacher received
a 12-year prison term, three of which were conditionally suspended, for an effective
sentence of nine years.5 The defendant in S v. Nemukuya HH-102-09 was 59 at the time
of conviction. His 12-year-old granddaughter was violated by him. He exploited his
position as the child's in loco parentis rather than defending her. Without exerting much
physical force, he defeated the girl.The complainant went through a lot of emotional
trauma. If she reported the rape, the accused threatened to kill her. When she did
report, the family suppressed her report. The incident wasn't reported to the police until
much afterwards. He received an 18-year prison term, with four years suspended, from
the magistrate. On appeal, the court changed the original sentence to a 12-year prison
term with a 4-year suspension, which resulted in an actual sentence of 8 years 6. The
Legal Resources Foundation has examined recent rape cases from across the nation
that have been heard in local courts. This study has found significant discrepancies in
the sentences given in what seem to be fairly comparable cases. Some of the
punishments in major rape instances where adult males raped children victims seem to

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be too lenient.7 The main reason we have different penalties is because there is no
minimum mandatory penalty for these offences; the magistrates decide the sentencing.
The statute allows the judge to impose various sentences in the courtroom which has
been the problem also to the rape crime sentences which are varied and inconsistent.
There are 52 magistrate courts in Zimbabwe, and each one weighs a variety of factors
before imposing a sentence. The magistrates and the high courts also hold diverse
perspectives, which is more reason why the minimum mandatory sentence has been
suggested.The minimum mandatory sentence for rape bill comes in with a sentence of
15years which was long overdue as in the region South Africa has already imposed a
minimum sentence for rape to be 10years. The minimum sentence in Zambia is 15
years for rape or defilement and 5 to 14 years for an attempt. In Tanzania, the minimum
sentence for attempted rape and rape with defilement is 30 years.

It is important to note that although the state had established a mandatory minimum
penalty for the theft of livestock and the electricity authority had also established a
minimum punishment for the theft of copper lines, there was no obligatory minimum
sentence in situations involving the lives of people. An instance of stock theft will result
in a minimum nine-year prison sentence, according to the Stock Theft Prevention Act,
as revised on December 1, 2007. If there are no exceptional circumstances and a
person is found guilty of stock theft in violation of section 114 of the Criminal Law
[Codification and Reform] Act, [Cap. 9:23], the court must impose the minimum required
sentence of nine years in prison. Similar to this, violating Section 3(1) of the Gold Trade
Act [Chapter 21:03] involves a mandatory minimum term of five years in jail, while
violating Section 45(1)(b) of the Parks and Wildlife Act [Chapter 20:14] carries a
mandatory minimum sentence of nine years in prison. 8

High mandatory penalties, according to supporters, would deter sexual assault, and
victims would be more likely to come forward if they thought offenders would face jail
time. Others countered that statutory minimums would guarantee just punishment and
result in more consistency in sentencing. High punishments, including minimum terms,
are in place for sexual offenses. Without other cultural, institutional, and legal reforms, it
is unlikely to have a considerable influence. There is no proof that harsh sentences
deter rape cases or raise reporting or conviction rates, especially in areas with
underdeveloped and underfunded criminal justice systems. However, statutory
minimums may result in harsher sanctions. Although the obligatory minimum sentence's
retributive effect is always felt when punishment is administered, the deterrent effect has
not yet been felt, as seen by the rising rape crime rates in countries like Kenya and
South Africa who have adopted mandatory minimum sentence for rape.

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1.2Research Questions
1. A consideration of other jurisdictions that have passed the minimum
mandatory sentence for rape has it been effective?
2. What are the dangers likely to arise due to the minimum mandatory
sentence of rape in Zimbabwe?
3. Is the rape legislation in Zimbabwe effective to curb rape?
4. What are the practical solutions that can curb rape?
5. What recommendations and conclusions can be made in the
context of the findings of the study?

1.3Problem Statement
The goal of punishment is to maintain social order by ensuring that criminals are held
accountable for their crimes and that potential offenders are discouraged from
committing crimes. The goal of retaliation, which is the guiding principle of retribution, is
embodied by mandatory minimum penalties. By setting a standard sentencing for
crimes of a similar nature, they punish those who commit them. Then, the issue is
whether they make sure that criminals are discouraged from doing similar acts.
Considering jurisdictions like South Africa that enacted the minimum mandatory
sentence for rape earlier no deterrence effect of the rape crime has been noted. Thus
the deterrence effect of the minimum mandatory minimum is actually questionable.
More so it becomes a mere change of legislation if the whole legislation is not reviewed
and no aiders to the law are instituted to make it effective. First, judges are bound by
mandatory minimums. Despite the fact that the court is intended to be impartial during
the sentencing process, mandatory minimums undermine this system by making the
prosecution the final arbiter and prohibiting the judge from taking into account a
defendant's past, level of guilt, or obligations to their families. That is, regardless of
whether the defendant was a leader or a lackey, the judge must sentence the defendant
to at least 20 years in jail if the prosecutor charges them with a crime that has a
mandatory minimum sentence of 20 years at the commencement of the case. The judge
is not allowed to show mercy or take into account the particular circumstances of that
person.
This distortion of the power equation leads to additional issues. Mandatory minimums
"provide prosecutors tools to effectively extort plea bargains from defendants" and
persuade others to work with the prosecution. The Collaboration Paradox is the result of
this: By aiding in the prosecution of others, big fish who are more guilty and know about
additional illegal behavior can avoid an obligatory minimum. The less responsible small
fish, meanwhile, are bound by stringent minimal requirements. They become the victims
of a system that disregards fairness or proportionality in favor of securing more
convictions. As a result, those who are most guilty receive lenient plea deals while those
who are least guilty receive harsh punishments. Finally, legislated minimums do not
improve community safety. Instead, because "incarceration is fundamentally
criminogenic," any amount of prison time raises the probability of future crime;
mandated minimum sentences just make matters worse. Excessive sentences also
make it more challenging for offenders to rejoin society. And by directing resources
away from other vital demands for public safety, our overreliance on prisons reduces
our level of safety. Study after study demonstrates that drug cases with lesser
sentences neither compromise public safety nor worsen drug abuse.

1.4 Objective of study

The main objective of this study is to point out the newly enacted sentence for rape
which is the minimum mandatory sentence of 15 years will not have a significant impact
to deter the rape crime in the absence of other legal institutional and societal
reforms .More so , to point out that the institution of the minimum mandatory sentence
become a mere change of legislation if the whole rape legislation is not reviewed for
amendment. To examine retribution as a philosophy of criminal punishment, to
determine whether retributive principles are envisioned in mandatory minimum
penalties, and to determine whether obligatory minimums result in deterrence. To
evaluate the impact of Section 65 of the Criminal Law (Codification and Reform) Act's
mandatory minimum punishment. Lastly, the objective of this study to make an alternate
recommendation for punishment or a different approach to implementing required
minimums that would be more effective in ensuring that offenders are discouraged from
committing the rape crime.
1.5 Methodology
The researcher will conduct a thorough desktop research to fulfill the study’s goal.
Statutes, common law, e-journals, and judicial publications will be the primary sources
of knowledge and may all be accessed from the University of Zimbabwe Library. More
so a quantitative approach will be used collecting rape statistics so as to reach to a
conclusion whether the minimum mandatory sentence for rape is effective to curb rape
in Zimbabwe in consideration of other jurisdictions like South Africa that passed the
sentence long way back.
1.6 Literature Review

Access to justice, value, efficacy, deterrent, and symbolism of the minimum obligatory
sentence for rape will be the five main areas of focus of the evaluation. These topics are
significant because they provide the rationale for the imposition of a minimum
mandatory sentence for rape. It is possible to establish whether deterrent minimum
mandatory sentences are the best sentencing option for resolving rape cases by looking
at its justification. The purpose of a sentence is to serve with a deterrence effect ‘’A
second purpose which punishment may serve is that of deterrence, whether this be
particular deterrence (i.e dissuading the individual criminal from re-offending in the
future) or general deterrence (i.e dissuading other possible offenders from offending by
the example made of each particular offender). 9It is of importance to understand the
dimensions of deterrence as we marry it to minimum mandatory sentences of rape ‘’In
an international security context  – and we will see that there are other contexts that
think differently about this – these principally consist of two types of deterrence:
deterrence through punishment and deterrence through denial’’. The basis of
punishment-based deterrence is that the person being discouraged refrains from a
specific restricted conduct out of dread of the penalty that the deterrer will administer.
The punishment is laid out in a threat made by the deterrer that the deterred believes is
credible because it implies that the deterrer is both willing and able to carry out the
threatened punishment10. Deterrence through denial relies on the deterred party's
conviction that engaging in a particular conduct will be excessively expensive and
unsuccessful because the deterrer is able to deny it the rewards it desires. To put it
another way, in deterrence through punishment, the deterrer warns the deterree not to
take a certain course of action because it will result in a credible and disproportionate
punishment later (for example, mutually assured (nuclear) destruction); in deterrence
through denial, the deterrer tries to persuade the deterree not to take a certain course of
action because it can be easily denied/blocked and thus has no chance 11. Deterrence,
according to Martin Schdnteich of the Institute for Security Research, is built on the
three "Cs" of competency, credibility, and communication. The state must be able to
locate, apprehend, prosecute, convict, and punish the majority of severe offenders, and
the threat of doing so by the government must be credible. Additionally, the state must
adequately inform the people of this credible threat 12.

However the effect of the minimum mandatory sentence for rape is quite questionable in
regards to the deterrence of rape. ‘’Critics of minimum mandatory sentence argue
that serious offenders are incapacitated without minimum sentences, that
deterrence is not achieved, and that prison overcrowding forces corrections
authorities to parole more dangerous offenders who have not received
mandatory minimum sentences. In terms of their impact on sentencing disparity
and plea bargaining, opponents maintain that elimination of judicial discretion
results in unjust sentences, that mandatory minimums are applied

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disproportionately to minorities, and that mandatory minimums are costly and do
not necessarily induce guilty pleas’’.13 Most importantly, the international literature
is almost universally critical of sentencing regimes which provide high minimum
sentences with little or no variance for different circumstances - such as found in
Zambia or Tanzania, as well as those - such as in South Africa - in which judges
retain almost unfettered discretion. Those systems in between - i.e. those that
prescribe different minimums for certain types of cases based on specific
aggravating factors - fare somewhat better in the review. However, even these
are considered “blunt instruments” in the absence of detailed sentencing
guidelines.14 ‘’The literature also suggests that high penalties for sexual offences,
including minimum sentences, are unlikely to have a significant impact in Africa in
the absence of other legal, institutional and societal reforms. While statutory
minimums may result in higher penalties, there is no evidence that high
sentences deter sexual violence or increase reporting or conviction rates,
particularly where criminal justice systems are weak and under-resourced. What
is needed is a comprehensive strategy to prevent sexual violence and protect
victims, while building the capacity of courts and law enforcement to address
these crimes. Higher penalties should also be accompanied by more in-depth
reform of sexual offences laws - to redefine rape and defilement, increase
evidentiary protections, and institute victim friendly procedures. Several countries
in the region, including South Africa, Kenya, Namibia, and others, have made
significant advancements in this regard’’.15In a question whether the South
African 10 year minimum mandatory sentence for rape has been effective in
reducing rape it has been noted that ‘’In the context of sexual violence,
mandatory minimum provisions have failed to achieve their stated goals.
Mandatory minimum sentencing was designed to reduce crime, to assuage
public fear, and to establish severe and consistent punishment for serious
crimes. But in spite of ten years of mandatory minimums, the reported rape rate
has remained relatively constant, and the public is more fearful of becoming
victims of violent crime. And while the mandatory minimums have resulted in
longer sentences for sex offenders, the sentences are less consistent than
before.

Despite good intentions, the structure and provisions of the Act have yielded
perverse results. Not only have the mandatory minimums failed to achieve their
affirmative goals, but ironically, they have created an illusion of greater leniency
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for sexual assault. Instead of condemning rape from the bench, judges have
reinforced traditional norms concerning rape and women in South Africa’’.16
Focusing on the sentencing of the few criminals who were actually captured for
their crime is incorrect if the purpose is to deter rape.17The above was articulated
in the murder case S v Makwanyana where it was said that ‘’The level of violent
crime in our country has reached alarming proportions. It poses a threat to the
transition to democracy... It is a matter of common knowledge that the political
conflict during this [transition] period... resulted in violence and destruction of a
kind not previously experienced... . Homelessness, unemployment, poverty and
the frustration consequent upon such conditions are other causes of the crime
wave. And ... police and prosecuting authorities have been unable to cope ... .
The greatest deterrent to crime is the likelihood that offenders will be
apprehended, convicted and punished. It is that which is presently lacking in our
criminal justice system; and it is at this level and through addressing the causes
of crime that the State must seek to combat lawlessness’’18 In other words, the
ability of the police, prosecution, and judicial systems to clearly and credibly
threaten potential criminals that they will be caught, found guilty, and punished is
restricted since they are still recovering from a violent conflict and making a
sluggish transition to a new democracy. The government finds it simple to impose
mandatory sentences with harsh penalties but it finds it much harder to improve
the criminal justice system as a whole, especially with scarce human and
financial resources. It's even more difficult to address the root causes of crime,
as Justice Chaskalson notes.19 The likelihood that sex offenders will be deterred
by mandatory sentence is maybe the lowest of all criminal offenders. Since most
of the crimes are committed by persons who know one another, SAPS refers to
rape and assault as "social fabric crimes."20 Martin Schnteich claims that these
crimes are done "During a fit of rage, wrath, carelessness, spite, or intoxication.
The threat of severe punishment if they are discovered and found guilty does
little to deter such offenders from acting criminally."21 Long jail sentences and
high rates of incarceration exacerbate the causes of rising crime rates by
impeding rehabilitation goals and encouraging recidivism. The state is violating
citizens' constitutional rights by continuing to support these longer penalties.22
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1.7 Chapter Synopsis

Chapter 1
Explores on the mandatory minimum sentence of rape how it deters the rape crime,
taking a consideration of other jurisdictions like South Africa that have passed the
minimum mandatory sentence for rape earlier than Zimbabwe how effective it has been
in deterring rape.

Chapter 2

An exploration of problems that are likely to arise due to to the newly passed minimum
mandatory sentence for rape.

Chapter 3
A closer introspection on the Zimbabwean legislation citing out how effective it is in
curbing rape .Citing out notable loopholes in the legislation

Chapter 4
Chapter explores on notable practical solutions that can curb rape as aiders to the
legislation

Chapter 5
Recommendations from the study.