A major upgrade in the qualifications of magistrates in the early 1970s, which in turn allowed a new top tier of experienced and well-qualified regional magistrates above the former top-ranked provincial magistrates, saw the transfer of almost all serious criminal trials from the High Court to this new tier.
Sentencing powers were slower to follow and often judges imposed a sentence on a conviction made by a regional magistrate.
However, they were gradually raised first to five years, then seven, then in the early 1990s to 10 years and more recently to 12 years to cope with initially the rising sentences for rape and then the growing prevalence of robbery, plus the minimum sentences needed for stock-theft and theft of Zesa equipment.
Now two judges of the High Court, Deputy Judge President Garainesu Mawadze, the number two High Court judge, and Justice Esther Muremba, who wrote the actual judgment reflecting the views of the two, have called for another major jump in sentencing jurisdiction for regional magistrates so that they can impose the sentences suggested in the fairly new sentencing guidelines.
They were the review panel for a conviction and sentence imposed on a pair of armed robbers and while they agreed that the regional magistrate had correctly convicted the two on the evidence, they found the 10-year sentence did not meet the needs of justice, being around half the 20 years suggested in the guidelines as the starting point for assessing a sentence for armed robbery in aggravating circumstances.
Answering the judges' query, the regional magistrate imposing the sentence noted that her maximum jurisdiction was 12 years.
She could have referred the two for sentence in the High Court, a cumbersome and time-consuming process, but instead used her own jurisdiction.
Regional magistrates are all well qualified legally, having both the law degrees and been practicing as a magistrate for many years before reaching the top tier.
This is why they are competent to try serious criminal cases such as those involving armed robbery, rape and attempted murder.
The two review judges thought that the sentencing jurisdiction should follow that thrust, and be in line with the guidelines.
Such serious sentences would still be reviewed by the High Court, but it is very rare for the High Court to interfere with what regional magistrates have done, or find sentences too low as in this case.
Until the 1970s few magistrates had law degrees, most being qualified through civil service law examinations, which is why they were limited to the lower level of criminal trials.
A part-time law degree from the University of Zimbabwe qualified those on the bench without degrees along with the policy change that all new magistrates had to be graduates.
This allowed a small group of graduate magistrates with good experience to be promoted into the new tier of regional magistrate.
The fairly low sentencing powers of all magistrates meant that while they could cope with the less serious crimes, normally the non-violent crimes, they frequently had to refer criminals they had convicted to the High Court for sentencing, along with their considered opinion that they did not have the jurisdiction to impose an adequate sentence.
This created ever longer delays and meant the person who knew most about the case had no say in the sentence.
While the increase in the maximum sentence a regional magistrate can impose is now 12 years, and that coped with almost all crimes they tried at the time it was last raised, it is now well below the recommended standard sentences for several violent crimes, in particular armed robbery with aggravating circumstances and rape, particularly rape of children or other aggravating circumstances.
In these sort of cases sentences of well above that 12-year limit are suggested by the guidelines.
The sentencing guidelines issued by the Judicial Service Commission were a major and successful attempt to ensure that justice was uniform and that similar crimes committed in similar circumstances with similar mitigation and aggravation received similar sentences.
In the old days, a much smaller judiciary could achieve this informally. But as the court system had been expanded to bring justice closer to all communities, and the regional magistrates are now longer confined to two divisions, but operate in many other courts across the provinces and districts, a set of guidelines were needed.
These do not impose a standard sentence, but give the sentencing judge or magistrate a starting point.
If the guideline starts with say 10 years, the judge or magistrate imposing the sentence then looks at the actual circumstances, and at the evidence in aggravation and mitigation, and moves the sentence up and down from 10 years for each factor until they arrive at a figure that fits the individual crime and criminal
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
Unlike civil cases, which can involve a lot of tricky points of law and with a concept of proof on probabilities, criminal law is relatively simple when it comes to conviction.
There are a small number of elements for each crime that make up that crime, so the law is relatively simple, and conviction needs proof beyond reasonable doubt, again a simple standard needing a yes or no answer.
Sentencing has always been considered the far more difficult part of a presiding officer's duty, finding the correct sentence to fit the crime and the criminal.
But our regional magistrates are considered competent for dealing with for the range of all the criminal cases they preside over, and in imposing sentences as a matter of routine. The need for higher sentences in the most violent crimes now means we need to follow the trust we have had in this group for half a century and give them, as the High Court judges recommend, the sentencing powers to meet the guidelines.
