Wednesday, 4 June 2025

HIGH COURT QUASHES TEEN'S SEX CONVICTION

The High Court found itself immersed in a case that cast new light on the complexities of justice, particularly when the law itself had shifted under the feet of those tasked with enforcing it.

The matter concerned a young man, Tanaka Madiro (19), who had been convicted for having consensual relations with a girl two years and 10 months younger than him.

The conviction had been secured under a charge that is no longer valid due to amendments to the criminal law.

What unfolded in the courtroom became both a lesson in statutory interpretation and a reminder of the Judiciary’s role as a guardian of fairness.

Tanaka’s case came to the High Court via a referral from a scrutinising regional magistrate in Harare.

The magistrate, aware of the changes introduced by the Criminal Laws Amendment Act of 2024, had flagged the proceedings as potentially inconsistent with the principles of real and substantial justice.

High Court judges, Deputy Judge President Garainesu Mawadze and Justice Faith Mushure, took on the task of reviewing the matter.

What they uncovered was an intricate interplay of legislative reform, oversight, and the enduring need for meticulous adherence to the law.

The young man’s charge, framed under the old Section 70 of the Criminal Code, no longer held water.

The amended law had replaced the broad and outdated term “young person” with the more specific “child,” expanding protections to those under 18 and redefining the parameters of offences involving consensual relations between young people close in age.

Critically, the new provisions required that cases involving an age gap of less than three years between the accused and the complainant receive explicit authorisation from the Prosecutor-General, based on a report by a probation officer.

No such authorisation had been sought or granted in Tanaka’s case.

Justice Mushure, delivering the judgment and stated, “It is no longer business as usual under the new Section 70. The law demands strict compliance, and a trial magistrate must ensure that all statutory requirements are met before proceeding with a case.”

She emphasised that it was not enough for a prosecutor to appear in court as tangible proof of the PG’s authorisation was necessary.

In this instance, the trial magistrate had erred by failing to ensure that the legal prerequisites were satisfied.

The judgment also underscored the broader implications of the legislative changes.

Justice Mushure noted that the new Section 70 was designed to address the nuances of relationships between young people and to align the law with constitutional protections against child exploitation.

By requiring additional safeguards, such as reports from probation officers and the PG’s oversight, the law aimed to strike a balance between protecting minors and avoiding undue criminalisation of consensual acts between peers.

Despite these reforms, the consequences of procedural missteps were already etched into Tanaka’s life.

By the time the case reached the High Court, he had served four weeks of community service.

Justice Mushure acknowledged this reality with a sense of regret, remarking, “The punishment imposed on the accused cannot be reversed. However, it would be unjust to allow a flawed conviction to stain his record.”

The court quashed both the conviction and the sentence, ensuring Tanaka would not carry the burden of a criminal record stemming from proceedings deemed a nullity.

In a broader directive, Justice Mushure ordered that the judgment be disseminated to magistrates and prosecutors across the country.

This step was intended to prevent similar mistakes in the future and to reinforce the importance of adhering to the revised legal framework.

Justice Mushure concluded with a note of caution: “The Prosecutor General retains the discretion to reinstate charges if deemed appropriate, but any such prosecution must strictly comply with the law.”

The case of Tanaka Madiro served as a stark reminder of the evolving nature of justice. Laws change, but the principles of fairness and due process remain constant. Herald

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