Should these judges have spoken out?

Three women judges of Zambia’s court of appeal have dismissed a young man’s appeal against his sentence of 30 years imprisonment with hard labour for violently raping his 12-year-old cousin three times. He maintained he took the girl as part of a Tonga custom in terms of which, as the judges put it in their decision, ‘one can abduct a woman ... have sexual intercourse with her and later formalize the marriage’. But though they dismissed his appeal against sentence, the judges did not take the opportunity to criticize the custom. They simply rejected this justification of his actions, because the trial record did not mention any agreement between the accused and the girl’s father for her to be abducted for the purposes of marriage. Why don’t judges speak out and condemn barbarities such as rape carried out in the name of custom and traditional marriage? 

 

Read the judgment

Try Hamenda must have known he had little chance of success on appeal. His legal aid counsel staked everything on just one argument: that sentencing a 20-year-old first offender to a 30-year jail term with hard labour was manifestly excessive and shocking.

What had the young Zambian man done? He had picked up his 12-year-old cousin from church, saying that she should go with him to collect a bicycle that her father, his uncle, wanted to buy. Instead, he took her into the bush where he held her prisoner overnight and raped her three times – the actual charge was ‘defilement’, the term given to rape of a minor.

When she did not go home that night, family and friends began a search and she was found late the following morning. A police officer who charged and arrested Hamenda said the young man told him ‘that he took the (girl) because she was supposed to get married to him.’

'No arrangement'

Hamenda gave no evidence in court and called no witnesses, but on the basis of the evidence by the prosecution witnesses the trial court found he had raped her and that ‘there was no arrangement between the (girl’s) father and the (accused) for him to take the child as his wife’.

After the high court imposed a 30-year sentence, he appealed and Zambia’s court of appeal has now given its decision.

The three women judges noted that Hamenda’s counsel submitted as a mitigating factor that he had acted ‘under a Tonga tradition which is a notorious fact that one can abduct a woman and have sexual intercourse with her and later formalize the marriage’.

The prosecution, however, stressed in argument that he had ill-treated the girl – at one point his violent treatment of her was described as ‘torture’ by the trial court – and said that the judges should not ‘justify a barbaric traditional practice that offends the law’. The close family relationship between the girl and her attacker was another aggravating circumstance. Further, the trial court had found that Hamenda tied her hands and dragged her to a stream where he whipped her before raping her. The prosecution argued that the facts surrounding the rapes were ‘clear and undisputed’ and that even Hamenda did not deny them.

It was true that a first offender deserved leniency in sentencing – but the aggravating factors also had to be considered, said the appeal judges.

Slapped and whipped

In their view these factors were the girl’s age, that she was abducted and raped three times in the bush while he slapped and whipped her when she resisted. They also noted there was no evidence on record as to an agreement between Hamenda and the girl’s father that he would abduct her ‘for the purposes of marriage’.

And then the sole sentence reflecting any concern for what had happened: ‘No doubt the defilement, coupled with the violent acts of slapping and whipping (the girl) traumatised her.’

A deterrent sentence was necessary given the aggravating factors, said the three judges. They said they did not react with ‘a sense of shock’ to the 30-year prison term and they declined to interfere with the punishment.

The reason I mention that the appeal judges were women is that I was recently at a training course by the Judicial Institute for Africa, involving judges from a number of jurisdictions across the continent. During the discussion I asked why most judgments on rape and defilement read as though the offence involved was a run-of-the-mill matter like robbery or breaking the speed limit. Why did presiding officers so seldom say anything to indicate their views of this terrible, prevalent crime?

'We do speak out'

One of the judges spoke to me later and said the trouble was that judges were still mostly men, and they felt little empathy for women and girls who were attacked and raped. ‘You must read judgments written by women judges,’ she urged. ‘You will see that we do speak out.’

Hamenda’s case offered an opportunity for the appeal judges to say something about the tradition of abduction followed by marriage, since this was squarely raised by counsel for the accused. They could have said something about that tradition in relation to under-age girls and the rights of these girls under the constitution or international law. They might even have questioned whether a marriage could be sanctioned by tradition or a community when it was preceded by violence, rape and torture. But they did not. They said nothing. Read the judgment for yourself and see.

* 'A matter of justice', Legalbrief, 16 July 2019