SYDNEY MUBAIWA
MIDLANDS BUREAU CHIEF

GWERU – High Court Judge, Justice Munamato Mutevedzi has condemned the imprisonment of a 12-year-old boy at Whawha Prison after the minor was tried without legal representation.
He described the 15-year-jail term imposed on the boy as a miscarriage of justice and ordered his immediate release. He ordered the National Prosecuting Authority to pursue the matter using a different magistrate.
The matter was heard on Monday.
The boy who comes from Mafa Village under Chief Nemangwe in Gokwe South was sentenced to 15 years in prison for raping a five-year-old girl.
Justice Mutevedzi who was assisted by Justice Ngoni Nduna during a high Court Circuit in Gweru said it was not proper that the boy was tried without any legal representation.
He argued that trying the boy without legal representation diminished the power of a court to protect the minor.
“In this regard, I am constrained to hold that there was a miscarriage of justice by failing to properly investigate whether or not the accused person had the requisite criminal capacity.
“The court must as of necessity, approach the matter with single-minded benevolence. As a general rule, because of severity of jail sentences faced by rape offenders, a court must not proceed to try and convict a child without legal representation.
“If that happens, there is evidence that there is no power of a court that protects children,” he said.
“His conviction should be vacated,” he said.
On February 12, 2024, the juvenile raped the five-year-old girl who was left in custody of the boy’s grandmother who was away from home attending a meeting at a nearby primary school leaving the victim with the accused boy.
The boy took the victim to a bedroom hut before raping her once.
The boy only appeared in court with a guardian.
Justice Mutevedzi said the any juvenile appearing in court must have a legal representative.
Justice Mutevedzi said the magistrate who tried the case failed to apply the cited court provisions and neglected to advise the accused juvenile and his guardian that the accused person risked a long jail sentence.
Justice Mutevedzi added that the magistrate failed to ask the accused juvenile on his understanding of rape or sexual intercourse.
“In his judgement, the magistrate approbated and reprobated.
His contradictory approach was graphic. The accused is 12-years-old, but judging by the results of sexual abuse, the boy is mature enough to understand his act and its criminality.
“I therefore take this view that given an account of his age at the time when he committed the crime, he was mature enough,” he said.
Justice Mutevedzi said the two findings were wrong in the sense that they were mutually exclusive. He said the question of criminal capacity had nothing to do with conviction and sentencing.
He said in cases involving minors, psychologists invariably knew better than lawyers, adding that had the trial magistrate taken that into consideration, he would have decided the case in another way.
“According to my calculations, if this boy is now in Grade 7 and has been staying with his grandparents and the father is still absent, the boy therefore has never had proper parental guidance for almost all of his life.
“The accused person could have committed the offence as a result of peer pressure exerted by friends,” he said.
Justice Mutevedzi said from the investigations made, it emerged that the boy thought they were playing with the complainant when the offence was committed.
He said his court opted for refusal to certify the proceedings saying that way it protected the accused from taken back to court.
“In this regard, I am constrained to hold that there was a miscarriage of justice by failing to properly investigate whether or not the accused person had the requisite criminal capacity.