S. v. Chirembwe

This case summary and analysis was prepared in partnership with the International Reproductive and Sexual Health Law Programme of the University of Toronto and the Centre for Human Rights at the University of Pretoria for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.

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Summary of Facts
Analysis and Decision

Thomas Brighton Chirembwe, the accused, was a burglar who broke into houses and also committed acts of rape. He was charged with a combined thirty counts of contravening Section 131 (1) & 2 (unlawful entry) and Section 65 (rape) of the Criminal Law Act (Codification and Reform). Of the total 30 counts, 13 were counts of rape whereby, after entering 10 domestic premises, the accused committed the rapes.

Chirembwe was convicted of 21 of the 30 counts. For those 21 counts, he received a total sentence of 290 years. Of these, the final 60 years were suspended for five years on condition he did not commit a crime involving unlawful entry, violence on the person of another, or an offence of a sexual nature. The magistrate had imposed the charges cumulatively, with 10 years for each count of unlawful entry, plus 20 years for each count of rape, amounting to 290 years prison sentence. The regional magistrate who handled the case referred the case to the High Court for review.

In the Court’s opinion, the convictions imposed by the magistrate were proper, however the cumulative sentencing arrived at a ridiculous result, which did not serve any purpose except to shock people.

The Court considered that while life imprisonment is the maximum sentence permissible for rape under the criminal code, this should be reserved for the worst examples of the crime. Rape sentences should be between 5 and 10 years, and beyond 10 years for exceptional cases (See of Kamocha J in S v. Ndlovu 2012 (1) ZLR 393). The Court acknowledged that magistrates usually gave sentences of between 15 to 20 years for rape cases, but they are later reduced on review.

However, the Court recognized that the above reasoning ignores the implications of sexual violence on the enjoyment of rights by women and girls and established that sentencing must use an engendered approach and a constitutional and human rights perspective.

In this sense, sexual violence infringes the rights to bodily and psychological integrity, freedom from violence, and inherent dignity of the survivor. Rape is “a particularly serious form of gender based violence against women and girls” which has an impact on the enjoyment of their human rights, as guaranteed in the Constitution of Zimbabwe Amendment Act (No.20) Act 2013 (Constitution) and international human rights treaties.

The Court recognized the pervasive nature of sexual violence, the reality that women and girls live in constant fear of sexual violence throughout their lives, and how this impacts gender equality between women and men. The Court reasoned that it was the state’s responsibility “not just to protect women against any such violations which encroach on their fundamental rights, but to also prosecute and punish appropriately as part of its exercise of due diligence.”

Reviewing the sentence by the magistrate, the Court’s opinion was that the magistrate was generally right to sentence the rape charges separately from the unlawful entry charges, it however erred in sentencing each count excessively. Further, the lower court should have for the purposes of sentencing, treated each entry leading to rape as one transaction, sentenced individually, but running them concurrently.

The Court resentenced the accused as follows: For most of the counts involving unlawful entry under aggravated circumstances and rape on the same premises, the accused received ten years’ imprisonment for each count, to run concurrently. For example, 10 years for Count 1 (unlawful entry) would run concurrently with 10 years with Count 2 (rape). For one of the charges of unlawful entry with rape, the Court did not explain the reduced sentence of 8 years. Finally, the accused was sentenced to 15 years for one unlawful entry with 3 rapes of the same complainant.

By contrast, the five counts of unlawful entry and theft were sentenced to 3 years each, running concurrently with all previous sentences. These amount to 73 years’ imprisonment, of which the final 18 years was suspended for five years, on condition that the accused did not commit another crime involving unlawful entry, violence on the person of another, or an offence of a sexual nature. This yielded an effective sentence of 55 years.