A Harare court last Friday released a 56-year old man accused of raping his daughter 23 years ago, when she was only 10-years-old, because the offence was not reported within the stipulated time frame. The man appeared before Harare magistrate Ms Josephine Sande facing five counts of rape. Ms Sande ordered his immediate release, citing that State had lost its right to prosecute the man.
Mr Oliver Marwa, who represented the accused, challenged his client's continued placement on remand by referring to Section 23 of the Criminal Procedure and Evidence Act, which says: "The right of prosecution for any offence other than murder, whether at the public instance or at the instance of a private party, shall, unless some other period is expressly provided by law, be barred by the lapse of twenty years from the time when the offence was committed."
Mr Marwa argued that the State loses its right to prosecute an accused 20 years after an offence is allegedly committed. Although the prosecutor, Ms Tatenda Murindagomo, told the court that the complainant was very young in 1993 when she was allegedly raped and could not report the matter because the perpetrator was her father, Ms Sande was not swayed.
The complainant is now 34 years-old, got married and has four children. Allegations are that the man, who hails from Hurungwe, divorced the complainant's mother in 1992. The complainant went with her mother, but returned to stay with her father and brother the following year. It was alleged that one day the accused asked his daughter to sweep his bedroom.
He allegedly put her on his bed and raped her. After the sexual assault, he threatened his daughter into silence. She was not allowed to play with other children. It was alleged that the accused had sexual intercourse with his daughter whenever he wished. She later opened up to her aunt who took her to her rural home. The aunt is now late, but she never told anyone about the offence. The complainant told her grandmother about the sexual assault but she advised her not to tell anyone. The matter came to light recently when the woman reported the matter to police.