The High Court has overturned the sentence of a Chitungwiza man convicted of engaging in sexual activities with a minor, citing significant procedural errors in the original trial. Justice Joel Mambara, alongside Justice Regis Dembure, ruled that the trial magistrate failed to adhere to statutory sentencing procedures and exceeded her jurisdiction.
The case involved a 27-year-old man convicted under section 70 (1) (a) of the Criminal Law (Codification and Reform) Act for having consensual relations with a 16-year-old girl. Both individuals are HIV-positive, which triggers mandatory sentencing provisions under Section 80 of the Act. The magistrate had originally sentenced the man to 14 months in prison, with four months suspended, resulting in an effective term of 10 months. However, the High Court determined that this sentence was irregular, as the magistrate did not conduct a necessary inquiry into whether “special circumstances” existed that could justify a lesser sentence than the minimum 10 years required by law.
Justice Mambara emphasised that magistrates must refer such cases to higher courts when they involve mandatory sentences, especially if no special circumstances are established.
The High Court has confirmed the conviction but quashed the original sentence, ordering the case to be sent back to the magistrates’ court for a new sentencing hearing. The court instructed that the assailant be allowed to present evidence on any special circumstances, while the prosecution will have the opportunity to respond. If no special circumstances are found, the man will face the mandatory 10-year prison term; if such circumstances are established, a lesser sentence may be imposed under section 70. Justice Mambara reinforced the importance of following statutory procedures in cases involving mandatory sentences, highlighting that any failure to do so constitutes a serious procedural irregularity.
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