Stiffer penalties for rape are not the answer
By William Eckem Sithole
In a rare display of ‘patriotism’, MDC and ZANU PF legislators in Parliament have both called for the imposition of harsher mandatory sentences against rapists in Zimbabwe.
On the surface, this is a noble cause that shows that we as Zimbabweans, are mature enough to put aside partisan interests for national good, but I am not convinced that this is the case in this instance.
This seemingly good meeting of the minds will return to haunt us in the future, for both sides of the fence are motivated by factors not necessarily related to securing justice for the victims of rape, but scoring political brownie points.
Before I get my head shot off, I must state my abhorrence for rape. It is a cowardly, vicious and traumatic attack on the essence of womanhood. As such, I humbly believe that all the perpetrators of such heinous act must be punished, after following due process. It is in the call for stiffer sentences I have problems with as detailed herein.
Why are both ZANU PF and MDC apparently singing from the same hymn book? What is the possible hidden agenda embedded in this noble cause? How does society lose out in this scenario? What are the possible remedies to the call for stiffer sentences.
ZANU PF has been accused of using rape or the fear of rape to subjugate especially the rural populace into supporting and voting for it, as some of the tools in its terror tool box. This has been an ongoing accusation during the liberation struggle, going on to the Gukurahundi massacres and poignantly, the 2008 elections.
At least one sitting Member of Parliament has been accused of personally raping female opposition supporters, while some other Members of Parliament (surprisingly including females) have been alleged to have authorised the use of rape to brutalise opposition supporters.
They managed to get away with it because the police are accused of refusing to co-operate with the victims when known ZANU PF suspects were involved, the then Attorney-General declining to prosecute those few cases that were brought forward, while judges threw away the remaining good cases on spurious grounds.
It is known that in the few instances where cases went past these hurdles and convictions were secured, the President used the Presidential pardon to release the convicts.
This created a culture of impunity amongst ZANU PF zealots and for as long as ZANU PF’s hold on power was threatened, it was alright to rape, maim and kill. So this call by ZANU PF for stiffer sentences in my book is predicated on the realisation that the threat to its political hegemony, being the MDC, has been neutralised.
Hence, the dogs of war are being called off, to allow ZANU PF to engage with international partners who it now needs to address the socio-economic problems that have now become the biggest threat to its continued stay in power.
Internally, the call serves as a red herring, diverting people’s attention from the looting of national resources while at the same time preventing them from looking at their dire economic circumstances, forcing them to engage in polarised debates, for which there will never be consensus on.
I am surprised and disappointed by the response of the MDC. Whether speaking in an individual capacity or on behalf of the MDC, Jesse Majome’s support for stiffer sentences drags the MDC in a race to the bottom with ZANU PF. The MDC has allowed ZANU PF to define the problem and ZANU PF cleverly limited the scope of the problem to essentially one aspect, in a series of inter-related actions.
As I see it, the broader problem of impunity for politically motivated rape crimes has been reduced to a narrow and specific issue of harsher sentencing. Because they were more concerned with their internal power struggles, they let ZANU PF have the first mover’s advantage and when they realised this, had to respond, for it was their members who bore the brunt of the politically motivated atrocities.
If they had not responded, the electorate were going to punish them harshly.
However, their response was not well thought out for it trivialised an otherwise important debate into a farce. One can not also help but notice delusions of grandeur afflicting the MDC.
They still harbour ambitions of legitimately seizing power and using statutes enacted by ZANU PF to totally grind ZANU PF into a dust. This, I humbly believe, is naivety on the MDC’s part. They are amatuers swimming at the deep end of the pool and they will end up in tears. ZANU PF will never be dislodged from power by the MDC with its current leadership.
Now, having set the above context, what problems do I foresee. In simple terms, the preferred ZANU PF approach to solving the problem they deliberately created of using rape as a political tool is to harshly punish a few individuals for the crime of rape while leaving intact the use of the same, should their hegemony be threatened in the future.
By so harshly punishing a few individuals, there exists a greater potential for irreparable injustice. Unless the entire value chain is strengthened, this is a real possibility, for the threshold for securing a rape conviction is very low in Zimbabwe. All it requires is that a woman scream “rape” and the system will take care of the rest, if you are not politically connected.
Once you are accused of rape, the default position by the existing bench is that you are guilty until proven innocent. Never mind the fact that the enabling statutes require proof beyond reasonable doubt, our judiciary is under pressure to convict the few cases of rape that are not a political minefield.
If it means that the Court has to make up for deficiencies in the State’s case, so be it, for they have to justify their existence. I am personally aware of one case wherein, due to a defective police investigation, incompetence on the defence counsel’s part and what I am convinced was a case of religious prejudice on the court’s part, a man was sentenced to a long prison term, for a crime that was, I am convinced, not proven beyond reasonable doubt.
It is an accepted legal principle that you would rather let a guilty person go free than to punish an innocent person. The call for harsher sentences must be viewed in light of the potential of causing a graver injustice by reversing the onus of proof from the state to the accused.
In the event the Court were to wrongfully decide that the accused is guilty, this innocent convict is terminally prejudiced by having to serve an inordinately long sentence for a crime he probably did not commit, while the real culprits will be out and serving as Cabinet Ministers or Members of Parliament.
We can not allow innocent members of our society and those whose cases are not proven to the required threshold of proof to be sentenced to such inordinately long periods of time on the alter of political expediency.
I fear that this approach is not in the long term interests of our country. There is no guarantee that the imposition of stiffer sentences will act as a sufficiently strong deterrent in the future when ZANU PF’s political power is threatened. We will merely see the dogs of war being let out once again, the same being protected by the powers that be, to our detriment.
I would rather advocate for a system whereby the independence, impartiality and fairness of the process is guaranteed and protected by strengthening the institutions involved with resolving such crimes and making it impossible for political players to abuse the system, for short term gains.
The office of the President of the Republic must not be used to pardon convicted criminals. Our Courts should not have to make up for deficiencies in the state’s case nor have to shift the burden of proof from the State to the accused.
Our prosecutors must not have the leeway to selectively prosecute unarmed and defenceless civilians while shielding from prosecution the guilty political elite. Our police must not have to resort to chasing deserving complainants away, but diligently investigate and separate deserving cases from the frivolous ones.
If the above were to be instituted, the existing sentencing regime may not need tempering with, for the effectiveness and efficiency of our system would act as a sufficiently strong deterrent to any would be rapist or criminal.
William Eckem Sithole is a Zimbabwean based in South Africa