Women and Justice: Keywords

Domestic Case Law

Habeenzu v. The People Supreme Court for Zambia (2012)

Sexual violence and rape

The appellant was charged in the Subordinate Court of attempted rape contrary to Section 137 of the Penal Code, Chapter 87 of the Laws of Zambia. The statement of offence read defilement, contrary to Section 138 of the Penal Code. The appellant was convicted of indecent assault, a minor offence per Section 181(2) of the Criminal Procedure Code. The appellant appealed on two grounds. First, the statement of offence was defective, as (i) it did not specify the offence by section and subsection of the provision of the law contravened, and (ii) it was amended late which was unjust. Second, on the available evidence, a court could not have properly convicted appellant for attempted rape or indecent assault because the allegation of attempted rape impliedly includes both an allegation of assault and of indecency; on the facts, there was only an element of indecency (and not assault). The Supreme Court rejected both grounds of appeal on the basis that: (i), indecent assault, attempted rape, rape and defilement are offences of the same genus and therefore a defendant charged with attempted rape may be convicted of a lesser related charge like indecent assault; (ii) the appellant had an opportunity to defend himself in relation to the alternative charge, so there was no constitutional violation of the fairness of the trial; and (iii) the findings of fact were in accordance with the evidence on the record, as the appellant was ‘caught in the act’ and there was medical evidence of injuries sustained by the victim. Accordingly, there was no reason to interfere with the findings of fact or the minimum sentence of 15 years’ imprisonment imposed by the sentencing judge. The Court dismissed the appeal.

Rex v. Lenyolosa High Court of Lesotho (2003)

Sexual violence and rape, Statutory rape or defilement

The defendant was convicted for sexual assault and attempted rape of his 16-year-old niece. The appellate court upheld the conviction, but overturned the sentence imposed by the trial court. The appellate court held that the lower court failed to consider aggravating factors, including the close relationship between the parties. Given the prevalence of sexual assault in Lesotho, the court determined that jail sentences needed to serve as a deterrent for both the perpetrator and the general public.  According to the court, “a very loud and clear message must be sent to all those who consider themselves with power and right to abuse or rape girls and women, that they will be dealt with the seriousness their unlawful actions demand” (p. 5).  The Court sentenced the defendant to two years imprisonment with one year suspended for five years, unless the defendant commits another violent offense.

Republic v. Chiledzelere High Court of Malawi (2007)

Gender-based violence in general, Sexual violence and rape

The accused was convicted of attempted rape and sentenced to five years imprisonment with hard labor for accosting the complainant and assaulting her with the intent to have intercourse with her before he was prevented from doing so by the arrival of the witness. The appeal was dismissed because the accused's actions in fondling the complainant and tearing her underwear provided clear evidence of his intent.  The sentence was upheld because of the aggravating factors that the accused was told that the complainant was a married woman and the traumatic effect of the tearing of the woman's underwear.  [Note: International legal standards do not discriminate on the basis of marital status in determining the gravity of a rape.]