Christmas is coming, so we're putting you in jail

In the midst of bad stories about the quality of justice being experienced in Zimbabwe’s courts comes a high court judgment that sees the accused as an individual – and that sets aside his trial sentence in the lower court as a shocking expression of the magistrate’s whims about burglars at Christmas.

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The judiciary in Zimbabwe is not enjoying a particularly good international reputation at the moment. News of bail applications routinely refused, of mass trials and sham prosecutions  – all have raised questions about the quality of justice being dispensed in that country during the current crackdown on opposition activists.

And then along comes the case of S v Mukwena and it seems that judicial heartlessness, at least in the lower courts, is not something that developed in the wake of fuel price protests. No, it predates those protests by some time.

The case of Johanis Mukwena, 21, reached the law reports because it was considered on review by Judge Martin Mafusire of the high court in Masvingo, with Judge Garainseu Mawadze concurring, and the judges stepped in to avert what they saw as the serious injustice of the hefty sentence imposed on him.

Mukwena found the door of someone’s house unlocked. He pushed it open and walked in. This was the offence of “unlawful entry into premises”, and constituted the first count he faced.

The second charge, theft, consisted of stealing the following: five kg of maize meal, a packet of potatoes, a T-shirt and a pair of shorts. Total value - $53. The shorts, worth $10, were recovered. Thus, the total value of what he stole was $43. This constituted the second count.

Mukwena pleaded guilty to both counts, was convicted and sentenced to 16 months in jail. Four of these were suspended on condition of good behaviour. A further two months were suspended on condition he paid back the value of what he had taken. That left him with 10 months to serve in jail.

In the opinion of Judge Mafusire, an effective 10 months seemed “unduly excessive”: “Ordinary offenders in similar circumstances escape with community service.”

“So the record attracted my attention. I sought to find out what it is that had led the trial court to be so harsh. What could have been the peculiar circumstances of the case? I found nothing other than plain misdirection of the court,” he wrote.

Mukwena was a first offender, married with one child – all facts missing from the trial court’s consideration. He was a “pushcart operator”, earning $60 a month on average, who had been “in the business of cart pushing” for just eight months.

His savings and assets amounted to just $15 and five goats. “Asked why he stole, he said he had no money.” Asked where he had put the things he had stolen he said he had eaten them or used them but that he was willing to pay compensation.

“By all accounts the accused was a poor man. He stole the food to eat.” The clothes he stole to wear – in fact he was putting on the shorts when he was arrested.

“Poverty does not justify crime,” wrote Judge Mafusire. “If you are poor and you steal to feed or clothe yourself you are offending. The law will convict you. It will judge you. It will punish you. But your sentence should fit you and your crime.”

That, he said, it where judicial discretion came in. Mukwena clearly did not steal “out of greed or malice. He stole out of need”, and the problem was that the trial court took no account of the man’s personal circumstances. The magistrate did not comment on any of these factors – that he was a first offender, that he had several mouths to feed, that he had pleaded guilty and saved time. Above all, that he had shown contrition by offering the pay compensation.

The high court found yet another misdirection by the trial magistrate who, without a word on the personal circumstances of the accused, expressed instead his own “personal prejudices or whims”. Unlawful entry was a threat to the security of home owners, said the magistrate. “Burglars are dangerous criminals.” Even first offenders can be sent to prison for unlawful entry. It was only good fortune that so little was taken. “But this does not take away the fact that (Mukwena) must be sent to jail.”

Then came the last bit of the trial court’s reasoning – comments that the judge said he considered “shocking”. Mukwena had to be jailed, said the magistrate, because during the approaching festive season he would otherwise be tempted to re-offend.

Here’s what the magistrate wrote: “(The) festive season is a time where most homes will be left unattended. During the festive season the accused must be away from the neighbourhood. The court simply feels imprisonment is the most appropriate sentence.”

In the view of the judge, this was quite incorrect. “There is no principle like that. It was wrong for the court to allow itself to be influenced by such a consideration” especially since there had been no such evidence before the court. Not even the prosecutor had made such a submission.

Though the magistrate considered community service, he ruled against it as inappropriate given Mukwena’s age – at 21 he could not be said to be immature. That was wrong, said the judge. Community sentence was not dependent on age.

In his conclusion, the magistrate repeated that Mukwena had to be removed from society during the Christmas holidays so that homes and property would be safe. He might otherwise offend “during this festive season which is a tempting period for burglars”.

Prison should not even have entered the mind of the magistrate, said the judge. A cardinal principle of sentencing is to keep first offenders out of jail where possible especially where they are as young as Mukwena. The magistrate even had the discretion to suspend the whole sentence on condition of restitution.

Mukwena had already served a month by the time the high court gave its judgment on review: he should be immediately released, said the judge. The new sentence he imposed on Mukwena was six months, with half suspended. A further two months would be suspended on condition that the $43 restitution was paid. As for the last month – Mukwena had already served it.

It is a satisfying judgment, in which a reader feels that close attention has been paid to all the facts, and to what justice really requires. It is a pity, I thought as I reached the end, that a similar approach was not adopted by the country’s other courts as they hear what are now being treated as “political” cases.