Lekopanye Mooketsi
18 April 2008
Gaborone — Senior Magistrate Munashe Ndlovu has ruled that the five soldiers and two constables charged with indecently assaulting Zimbabweans, have a case to answer on some of the counts.
The accused are: Samuel Seshabo, Pako Tlhabaki, Thato Bojosi, Moagi Samson, Kodziba Balopi, Sidney Ntope and Phetogo Ganakobo.
On count one, the accused are charged with indecent assault. They are alleged to have indecently assaulted one male Ramusi Chigudu and female Sharai Sibanda by forcing them to undress, remain naked and at the same time to have sexual intercourse in the accused's presence.
On count two they are also facing a charge of indecent assault. On November 25, 2005, at Letsetlhana ward, Ramotswa, the accused persons are alleged to have unlawfully and indecently assaulted Zimbabwean men - Brighton Mapokotera, Willies Mbwanda and Conrnelious Mhosva. They are also alleged to have forced them to show their penises and masturbate in their presence.
Count three is also that of indecent assault. The accused persons are alleged to have indecently assaulted two Zimbabwean females forcing them to undress, remain naked and trying to coerce the two to have sexual Intercourse with two Zimbabwean men.
On count four the accused persons are charged with rape. The seven accused persons are alleged to have acting together in concert for purposes of sexual gratification caused one male Brighton Mapokotera to have unlawful sexual intercourse with Vanessa Francisca Mbezi against her consent.
The court ruled that all the accused persons, except Balopi, have a case to answer in all the four counts.
It was further ruled that all the accused persons have cases to answer in count two, three and four. Their application for no cases to answer was dismissed except for Balopi whose application succeeded in count.
The magistrate said Seshabo, Bojosi, Samson, Ntope and Ganakobo shall be called upon to defend themselves against count one. All the accused persons would have to defend themselves in count two, three and four when the trial resumes for hearing today.
In his ruling, Ndlovu said in his view the activities of the night in question amounted to indecent assaults on some of the complainants. He said in all the indecent assault counts, there was a similar fact evidence led from the witness who was at the two different yards in Ramotswa about a similar mode of operation by assailants.
The magistrate said the investigator and another police officer who testified, placed the accused persons at the scenes of the offences.
He said although admission to the investigator by the accused of their evidence should not be accorded weight but the defence failed to cross examine him. He said this placed them at the scenes of crimes.
Ndlovu said a special constable who accompanied the accused persons, placed them at the scene. "Can it be said that all the prosecution witnesses lied in their evidence and were manifestly unreliable?
In my view such an argument doesn't hold water in view of independent corroboration of the victims assaults by the doctors whose reports clearly indicated that they had soft tissue and other similar injuries consistent with assaults.
The similar fact evidence in the modus operadi of their assailants also shows that although the witnesses had some inconsistencies here and there which could be explained by passage of time and the harsh environment in which these events occurred, those could not rock the bottom of the state's case. In any event at this stage the standard of proof required is lower than that of proof beyond reasonable doubt."
Ndlovu said the rape charge generated a lot of controversy from the defence team which felt that where a person is not the perpetrator they cannot be charged and convicted of rape.
He said the defence counsels contended that doing so will create an absurdity where one considers Section 142 (4) which for enhanced sentence of 15 years imprisonment if the convict had HIV/AIDS at the material time of the rape. But Ndlovu said there was no need to consider Section 142 (4) because the persons in the accused persons' situation, have not themselves penetrated anybody. He noted that it would be ridiculous and create ambiguity to try to pursue the provisions of Section 142 (4).
He said the defence also argued that there will be no gratification derived by the accused from other people's sexual actions.
Ndlovu asserted that the wording of Section 141 is clear and ambiguous. The magistrate said the legislature covers any person who has unlawful carnal knowledge and those who cause the penetration of a sexual organ of another for the purpose of sexual gratification without the consent of such of person. He added that if the consent is obtained by force, threats or intimidation of any kind of fear of bodily harm, the accused is guilty of an offence termed rape. The magistrate said the complainants told the court that on the fateful night they were subjected to assaults and intimidation and as a result of threats and order from their assailants, they had sexual intercourse against both their will.
He said although admittedly the Botswana jurisdiction does not seem to have case law authorities for people in the accused's situation, this provision covers their situation.
Still regarding the rape charge, Ndlovu said it was not the complainants who derived sexual gratification but the men who ordered them to have intercourse and mobbed them. He said they derived such gratification from what they watched happening. "My view is that there are many ways of achieving sexual gratification, eg., masturbation, watching a blue movie, using vibrators or watching other people having sex.
It is in light of the above that I come to the conclusion that the accused persons' situation squarely puts them in a position where the ambit of and word of Section 141 covers them without the need to look for the intention of the legislature but by giving effect to the literal interpretation of the said section."
Ndlovu said arguments concerning credibility and reliability of the prosecution witnesses would be covered in the next stages of the trial.
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