The appellant was convicted of rape under the Combating of Rape, Act 8 of 2000 (the “Act”) in the Regional Court for inserting his finger into the vagina of his friend’s eight-year-old daughter (the “complainant”). This insertion caused bruising to the complainant’s vagina that lasted longer than 72 hours. The complainant’s hymen, however, remained intact. The appellant was sentenced to 15 years in prison, of which five were conditionally suspended. On appeal, the appellant argued that he had not committed rape under the Act because he had not penetrated the complainant’s “vagina” as that term is defined under the Act, but rather touched the areas around her vagina. Accordingly, he argued that, at most, he had committed indecent assault, and therefore his sentence should be reduced. The appellate court denied the appeal and upheld the original sentence, finding that the labia minora, labia majora and the para-urethral fort all form part of the complainant’s genital organs and therefore satisfy the definition of “vagina” within the Act.
Women and Justice: Keywords
Domestic Case Law
Monomono v. The State High Court of Namibia (2017)
Miloslav v. The People Supreme Court for Zambia (2014)
The appellant was charged with the offence of indecent assault on a female contrary to Section 137(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The victim worked for the appellant as a maid when she was indecently assaulted. The appellant advanced four grounds of appeal: (i) the trial court erred when (i) it found the appellant had a case to answer at the close of the prosecution’s case; (ii) it convicted the appellant of the offence in the absence of corroborative evidence; (iii) the trial court erred when it convicted the appellant on the evidence of the victim who suffered from unsoundness of mind without satisfying itself that the victim understood the nature of an oath and was capable of giving rational testimony; and, (iv) it held that the findings in the medical report supported the prosecution’s evidence and when it held that the appellant had corroborated the evidence of the victim when he admitted touching the victim. The Court dismissed all grounds for appeal on the following bases: (i) the Court was satisfied that the victim’s testimony was presented in a very coherent manner and that the three ingredients of the offence had been established and that the victim’s testimony was not discredited at all; (ii) there was medical evidence which corroborated the crime as well as evidence that the victim did not consent to the indecent assault; (iii) the victim’s testimony was very consistent and was given with ‘lucid clarity’, therefore there was nothing in the victim’s testimony that could have compelled the trial court to conduct a voir dire; and, (iv) there was medical evidence which corroborated the victim’s testimony and there was no evidence of a romantic relationship between the parties which would indicate consent. Further, the Court held that, because of the ‘master and servant’ nature of the relationship, the minimum sentence of 15 years imprisonment was inappropriate and should be set aside and replaced by a sentence of 20 years imprisonment with hard labor effective from the date of conviction.
Sikazwe v. The People Supreme Court for Zambia (2012)
The appellant was charged with incest contrary to Section 159(1) of the Penal Code but was convicted of the lesser charge of indecent assault contrary to Section 137(1) as amended by Act No. 15 of 2005, Cap 871, as the medical evidence ‘left a lot to be desired’ (as described by the Magistrate). However, when the matter was sent to the High Court for sentencing, the sentencing judge substituted the charge of indecent assault with incest and sentenced the appellant to 20 years imprisonment with hard labor. The appellant appealed this conviction and sentence on the basis that the Magistrate “erred in law and fact when he tried and convicted the appellant without the Director of Public Prosecutions’ consent.” In support of this argument, the appellant noted that the instructions of the Director of Public Prosecutions were to try the appellant for rape not incest. Therefore, in the absence of express consent by the Director of Public Prosecutions as required by Section 164 of the Penal Code, Cap 871, the trial court had jurisdiction neither to hear the matter nor to proceed to convict the appellant on indecent assault and sentence him to 20-year term for incest. The Supreme Court reviewed the letter from the Director of Public Prosecutions and noted that, while the first paragraph gave the impression that he had sanctioned the prosecution to go ahead with the charge of incest, the remainder of the letter made it clear that he had also sanctioned the appellant’s prosecution on a charge of either rape or defilement. The Supreme Court also noted that the latter could potentially enable a conviction of indecent assault under the relevant provisions of the Penal Code. Thus, the Supreme Court confirmed that the Director of Public Prosecutions rightly guided the prosecution and the court below to invoke whichever of these provisions as necessary. Moreover, the Supreme Court stated that the Magistrate rightly concluded that ‘the medical evidence left a lot to be desired.’ Ultimately, it concluded that the appellant was not guilty of the offence of rape, but that he was guilty of the offence of indecent assault contrary to Section 137 of the Penal Code and that the sentencing judge was mistaken to sentence the appellant for incest. The Supreme Court quashed the incest conviction, but still upheld the conviction for indecent assault and imposed a 20-year prison sentence.
Achoki v. Republic Court of Appeal of Kenya at Kisumu (2011)
The appellant was charged with three criminal violations in connection with his and his coconspirators' robbery of the complainant and corresponding violence: (1) aggravated robbery with violence, (2) rape of the complainant's niece during the robbery, and (3) possession of suspected stolen property. The trial court found the appellant guilty on all counts, but the first count was reduced to simple robbery. The trial court sentenced him to ten years imprisonment for robbery, ten years imprisonment for rape, and 12 months for handling suspected stole goods, to be served concurrently. Without citing a specific reason for reducing the aggravated robbery with violence charge, the trial magistrate noted that the complainant testified that she was not injured in the robbery. The appellant first appealed to the High Court, which found the appeal had no merit and that the appellant was guilty of aggravated robbery with violence. The High Court vacated the conviction and 10-year sentence for simple robbery and imposed the death sentence for robbery with violence. In this appeal to the Court of Appeal (Kisumu), the appellant raised four concerns: (1) whether he was improperly identified as the robber and rapist because the attack took place at night when it was dark, (2) whether the first appellate court properly re-evaluated the evidence, (3) whether the High Court's substitution of simple robbery with aggravated robbery with violence was proper, and (4) whether the State was required to file a cross-appeal to entitle the High Court to substitute the simple robbery conviction with aggravated robbery with violence. The High Court documents show that the appellant was warned more than once and that at the earliest opportunity the State Counsel would seek to increase the sentence to capital robbery, but the appellant decided to proceed with the appeal. Quoting its precedent, the lower courts' records, and the Criminal Procedure Code Sec. 354, the Court of Appeal rejected all aspects of the appeal and upheld the death sentence for robbery with violence.
Ochieng v. Republic High Court of Kenya of Kisii (2008)
The appellant was charged and convicted of defilement and indecent assault of a six-year-old girl. He was sentenced to 10 years imprisonment on the first count and five years imprisonment for the second. He appealed on the grounds of insufficient evidence to sustain a conviction and an excessive sentence. The Court affirmed the convictions because the six-year-old complainant described the incident in detail, the medical evidence was corroborative, and the appellant's abrupt and unexplained disappearance after the incident was also properly considered corroborative evidence. The Court also held that the sentences were not excessive.
Republic v. Mzungu High Court of Malawi (2007)
The appellant was charged with defilement for having unlawful carnal knowledge of a girl under 13 years of age. The trial court convicted him of indecent assault because there was no penetration. He appealed his conviction for indecent assault because it was not included in the original charge. He also argued that his sentence was excessive. The Court dismissed the appeal of the conviction on the grounds that where the evidence is sufficient to sustain the lesser charge of indecent assault but may not be sufficient for defilement, the accused may be convicted of the lesser crime even when it was not included in the original charge. However, the Court upheld the appeal of the sentence and lowered it, despite of the fact that women and girls need to be protected, taking into account the mitigating factor of the appellant's youth.