LUSAKA – Zambia Civic Education Association (ZCEA) has said the sentencing of a juvenile for defilement by a Kasama magistrate is illegal.
The Kasama Magistrates’ Court recently sentenced a 17-year-old boy of Chilubula village to three months community service for defiling a five-year-old girl and touching the private parts of another also aged five.
The sentence came about after the teenager admitted to the charge when he appeared for plea before Kasama resident magistrate Samson Mumba.
The teenager will serve three months community service sentence at a named health institute where he would undergo a six-month counselling and rehabilitation programme or in default he would serve one year in prison with hard labour.
But ZCEA executive director Judith Mulenga hopes that the new Chief Justice Mumba Malila would quickly settle down and start cleansing the Judiciary of its recent murky reputation.
“Stories of our Judiciary not living up to its tenets have been with us for some time and an opportunity exists for the new Chief Justice to ‘fix it!’ Some decisions being made by the bench are baffling to say the least even for lay persons,” she said.
Mulenga said the story of the Kasama magistrate trying a juvenile for defiling a five-year-old girl and attempting to defile another girl of the same age and then sentencing the offender to three months community service was ludicrous.
“First of all juvenile justice does not mean juvenile offenders being given a slap on the wrist for felony offences.
“Secondly, even though juveniles are sentenced differently from adult offenders in such cases, how can a case that attracts the minimum sentence of 15 years be reduced to three months community service?
“Thirdly, it is a well-known fact that magistrates do not have jurisdiction to sentence cases that attract more than nine years custodial sentence.
“So why and how did the magistrate in Kasama take it upon himself to pronounce a sentence reserved for the high court? Was it ignorance or mischief?” she asked.
“Although according to media information the juvenile offender is still a child at 17 years old, he is at the upper end of his childhood.
“Therefore his evolving capacity is higher unless evidence was introduced of his mental faculties being lower than his chronological age and considering the young age of his victims, he needed to receive the full brunt of an order that the high court imposes on such juvenile offenders.
“Community service for such a serious offence on very young victims is not in the realm of juvenile justice but in letting off the offender!
“Where is the rehabilitation that the juvenile was supposed to undergo?”
Mulenga also asked why the country’s focus was always on the perpetrator of the crime at the expense of the victim.
“What rehabilitation and reintegration did the honourable magistrate order for the child victims in accordance to Article 39 of the Convention on the Rights of the Child which provides that, ‘States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel inhuman or degrading treatment or punishment; or armed conflicts.
“Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child’?” she asked.
Mulenga said the defilement of the two five-year-old girls was a serious sexual abuse and cruel treatment by the juvenile offender and the fact that the perpetrator was still a child does not make the physical and psychological impact of the offence on his victims any less.
“Did the magistrate order any psychological recovery of the little girls? This is reminiscence of the PF government’s non-rehabilitation of the musician General Kanene, Clifford Dimba’s victim and his early release after serving less than 10 per cent of his sentence only served to victimise her twice and left her scarred for life,” she said.
Mulenga said this was unacceptable when Zambia was only trying to redeem itself from its dismal ranking as one of the least child friendly governments in Africa as of 2018.
“The African Child Policy Forum, an independent, not-for-profit, Pan-African Institute of policy research and dialogue on the African child which ranked Zambia among the least child friendly governments in Africa in 2018 again ranked Zambia among the less girl friendly country in its 2020 – How friendly are African Government’s Towards Girls?’
“Report due to low scores on girl friendliness indexes such as protection laws and policies and outcomes achieved for girls and provision of budgetary commitments to education, health and nutrition and outcomes achieved for girls,” said Mulenga.
“Consequently, when one reads such blatant violation of young children from no other than the bench, one realises why Zambia is ranked 37 out of 52 African countries, among the governments that are failing girls in Africa.”
And Zambia National Men’s Network for Gender and Development (ZNMNGD) national coordinator Nelson Banda said the case showed that the boy had an intention and this was where communities should embrace sexuality education to avoid such behaviours.
“But at the same time the boy at 17 should undergo counselling and rehabilitation apart from being sentenced.
“A lot of young people lack sexuality education which also require the need to respect the rights of girls.
“At the moment let him serve the sentence because he has violated the body integrity of the girls,” said Banda.