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had been secured under a charge that is no longer valid due to amendments to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had replaced the broad and outdated term “young person” with the more specific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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