The Voice (Francistown)
25 March 2008
Francistown — Three years into a sentence that an appeal judge described as inhuman and degrading, a young boy has been set free from his prison ordeal.
There were scenes of jubilation outside the Francistown High Court as 21-year-old Goabaone Goitse was released from his 12-year conviction on a charge of defilement.
The wheels of justice finally turned to let common sense and humanity prevail, as judge Thomas Masuku, in his lengthy judgement, found the original sentence to be 'totally inappropriate.'
In setting aside the jail term imposed by Maun magistrate Tshegofatso Mogomotsi, the judge found the intended punishment to be 'grossly disproportionate to the severity of the offence.' Goabaone was convicted on his own admission of having a sexual relationship with his underage girlfriend. Despite claiming in court that he thought the girl was 17, it was found that she was in fact six months below the age of consent. He was 18 at the time.
The girl's aunt reported the affair to police who charged him with rape, and although he was eventually charged with defilement, it is clear from the record of the court proceedings that the magistrate considered him to be a rapist.
In his ruling, Judge Masuku agreed that the sexual encounter had been consensual and that the belief that the girl had been raped, although 'totally unjustified on the evidence,' had heavily influenced the severe sentence. He considered that the girl had invented the claim to explain away her absence for the night and appease her aunt's anger after she was told to return home early.
In his summing up, the judge dismissed the appeal against conviction, but set aside the 12-year prison sentence, substituting it with the three years that Goabaone had already served.
As he walked to freedom and into the welcoming arms of his aunt, Merero Bogosi, the two hugged in tearful reunion.
"Thank God this nightmare is over and my nephew can pick up the pieces of his shattered life. When he was jailed, all we could do was look on hopelessly as it seemed the young man's future would end behind bars. We were shocked at the heartless decision that we felt was totally undeserved. If anything, it is the magistrate who should be sent to prison as the sentence was, in my opinion, a crime against humanity."
Echoing her sentiments, Goabaones cousin, Cynthia Masikara, 38, said that action should be taken against the magistrate for issuing what was clearly an unjust punishment.
She said: "For whatever reason, she wanted to make an example of him because she believed him to be a rapist. This was obviously not the case, and yet intelligent person that she is supposed to be, she chose not to see the faults in the police argument.
" If my cousin had had legal help, he would not have been sent to prison. In court, he was alone and supposed to act as his own lawyer, when he had no experience of such matters. He wasn't even told that he was allowed to ask questions of the person accusing him."
Goabaone's appointed appeal lawyer, Keitshegile Sechele, who had criticised the original trial as 'seriously flawed,' applauded the judge's decision. "The case has spoken volumes for the rest of the youth who might have fallen into the same situation. The country doesn't have an effective law reform committee to cater for people in Goitse's situation, and this urgently needs to be reviewed," he said.
Expressing his joy at being free, Goabaone said he just wanted to have a bath, a good meal and put the experience of the last three years behind him. The orphaned youth will be staying with his aunt in Francistown, where he will begin the rehabilitation process by looking for a job. The full story of his prison nightmare will be told in next week's issue of The Voice.
What The Judge Said - Justice Masuku calls for law review
In a 43-page judgement, Judge Thomas Masuku not only released Goabaone from the burden of his brutal sentence, but called for 'serious consideration' to be given to the law relating to defilement in such cases.
He agreed with the opinion that 'punishment that is excessive serves neither the interests of justice nor those of the society.'
"I am of the view that imposition of the mandatory sentence of 10 years imprisonment is grossly disproportionate where the disparity in age between the victim and the offender is small," he said.
He pointed out that the law on defilement was primarily designed to protect young girls from being exploited by older and mature sexual predators. In the case of young boys who are teenagers, he argued that they would probably be 'exploring with, rather than exploiting the victims.'
In referring to Goabaone's case he said: "His only crime, if crime it be, is giving in to natural sexual stimuli with a mate who has consented."
Condemning him to a minimum 10-year sentence would, he argued, dash any hopes he might have had of being a fruitful and productive citizen. "In all probability, he may come out of jail 10 years older, angry, bitter and well-trained in committing real crime that will hit society really hard."
He viewed the sentence to be 'unjustified' and so 'grossly disproportionate' as to be an "inhuman and degrading punishment and therefore unconstitutional."
He argued that, " a slavish adherence to the prescribed minimum sentence would result in inequity and injustice in certain cases."
In concluding his judgement, the judge questioned imprisonment as a 'fitting form of punishment at all for such young people who have given in to natural sexual stimuli.'
"Whereas the Court cannot and does not condone pre-marital sexual activity amongst the youth, a consideration should be given to stronger education both at home and school, and other less disruptive measures for controlling and, if possible, for preventing it."
The judge noted that Goabaone had waited three years for his appeal to be heard, and drew attention to the 'enormous delay' incurred in the processing of appeals. He called for the implementation of an automatic review system that would speed up the process and provide the option of referring cases to a High Court judge for consideration where justice demanded.
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