Chinhoyi High Court judges of appeal Justices Catherine Bhachi- Muzawazi has ordered the immediate release of a 14-year-old boy from Mashonaland West province who was jailed for five years effective for raping a four-year-old girl.
This comes after the case went through automatic review.
The judges ruled that the lower court erred in its decision to lock up a minor having made him go through trial without a State lawyer.
They said this is not fair considering that even murder suspects get State lawyers.
The judges urged the state to make sure that such offenders get state lawyers to achieve fair trials.
"In view of the above summation, the conviction is confirmed. Due to the numerous misdirections, in regard to the sentence, the sentence is set aside and substituted with five years imprisonment wholly suspended for two years on condition the accused does not within that period commit any offence involving sexual assault, rape or indecent assault for which upon conviction he is sentenced to imprisonment without the option of a fine.
"A warrant of liberation is forthwith issued," ruled the judges.
In coming up with her ruling, Muzwazi it is disheartening that during trial there were incidences where the accused was so overwhelmed as not to answer some questions put to him.
The judge said this is a red flag that should steer the trial court to allow child offenders the opportunity to seek the assistance of legal representatives paid by the State.
"If the State can facilitate the payment of legal representative or pro deo lawyers to suspect murderers, surely it can extend the same to its children offenders," she said.
Muzawazi and Muzofa also said another, interesting factor was that although the trial court recognised the need for the child to be assisted by his guardian, it may not be in the best interests of an African adolescent child who culturally and traditionally regards or views sexual matters as taboo subjects where parents and adults in general are concerned.
"So, a child, a male one for that matter may not freely speak up in the presence of their mothers.
"In conclusion, it is evident that the trial court made reference to the Sentencing Guidelines, but it failed to take cognisance of the provisions of s21.
"The implication is that it treated a mere child who was in need of its protection through all the various statutory options open to it as instructed by the law.
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"It exposed the 14-year-old teenager to the irreparably physical and emotionally damaging effect of adult prison vices," she said.
However, according to the judge, the same cannot be said with regard to the sentence imposed.
"We do not believe that sentencing a 14-year juvenile to an effective five-year imprisonment term without specifying that he should be detained in a juvenile detention centre, is in accordance with real and substantial justice."
They said the court had a legal duty to send the accused to a juvenile detention home or to send him to the Children's Court as dictated by sections 351 to 353 of the Criminal Procedure and Evidence Act, [Chapter 9:07] and in terms of the Children's Act.
"We are of the considered view, that it is the sentence that was not in accordance with real and substantial justice."
It is alleged that the boy raped a minor girl aged four years at the time of the commission of the offence.
The minor had visited the accused's room looking for her friend.
The accused took advantage of the child, dragged and placed her on a sofa and committed some indecent acts on her backside before raping her.
