‘Neglect, dereliction of duty’ by prosecution – and father convicted of child rape goes free

19 September 2019 · Carmel Rickard

Three judges of Zambia’s supreme court have set free a father who was convicted of raping his young daughter and sentenced to 35 years with hard labour. How did it happen that what appeared a secure conviction was set aside? How will the three judges feel about their decision which, setting the father free, could place the daughter at risk again?

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It is often said that one way to prevent serious crime is for the police and legal system to work really well: If you know you will be caught, quickly and inevitably, by an efficient, incorruptible police force; that the prosecution will, just as inevitably, put together a proper case, taking no short cuts and following all the required procedures, and that the court, given unimpeachable evidence showing guilt, will convict and sentence you, then the risks associated with crime will appear just too great for many people. They will stay on the legal side of the road.

But all too often the system breaks down. As the people of the region struggle to contain crime, and violence against women and children in particular, it frequently happens that an accused, sometimes already convicted and sentenced to a lengthy term in jail, has to be freed because of mistakes. Not a single country is free of this problem. Can you imagine how the judges of Zambia’s highest court felt when they dealt with a recent case in which a young girl said she had been raped and infected by her own father? What would it have been like for them to free a man convicted of raping his daughter and sentenced to prison with hard labour for 35 years, but whose conviction had to be set aside because of elementary mistakes made by the prosecution and the presiding officer?

Set free

The judgment, written by Justice Evans Hamaundu, with the agreement of Justices Elizabeth Muyovwe and Jones Chinyama, noted that argument of the appeal ended most unusually. At the end of the day’s hearing, the court immediately ruled that the appellant, N should be set free, and that reasons for this decision would follow.

Now, giving their reasons, it becomes clear that N’s prosecution was poorly handled both by the trial court and the prosecution.

The story they heard was that N, his wife and their daughter lived together. At some point, the child developed genital warts and was taken to hospital. These ‘warts’ are the most common sexually transmitted infection and are caused by skin-to-skin contact with someone who is already infected.

Early in 2014, the mother died and the father and child went to another part of the country where the funeral was to be held. It was there that the child’s maternal relatives noticed the warts and asked her about them. They said that she claimed they had developed after her father had sex with her.

They reported the matter, the father was arrested and the child was medically examined. That examination showed that she had previously been raped.

Hard labour

By the time of the trial the child was nine, and the case ended with the father’s conviction and the unusual sentence of 35 years with hard labour.

The supreme court noted three issues that emerged from the trial: First, the record shows only the child’s answers to the questions intended to established whether she understood the difference between truth and lies, were recorded – not the questions themselves.

Then, as soon as the child had given her evidence, her father – held in custody – made an application to court. He asked that he should be medically examined to see if he suffered from warts, or ever had done.

The court granted his application, saying the clerk of the court with the officer in charge of the prison where the father was held, should take him to hospital to be examined for ‘all sexually transmitted diseases namely genital warts’. The doctor’s report was to be made available to the court before the end of the trial.

Danger

But when the accused later gave evidence it emerged that he had not been tested. Not just that, but the court seemed to forget that it had ordered that he be taken to hospital for the tests and appeared to hold the father responsible for not being able to produce his test report. This attitude persisted, even though the father made it clear that the report, if he could only get one, would have been his defence.

The supreme court’s third problem was the issue of corroboration. Though the trial court said it was aware of the danger of convicting on uncorroborated evidence in sexual matters, when it came to the test, however, the court only appeared to consider evidence that corroborated that the child had been raped. Basically, the trial court believed the child’s evidence and thus convicted her father.

The father’s appeal centred on the first and third of the issues noted by the supreme court. There was a potential witness who might have corroborated the child’s evidence which otherwise stood on its own. The child had said that after she was raped by her father, she told BG. When the prosecutor cross-examined the father, it was conducted in a way that suggested calling BG to give evidence was up to the father.

The magistrate was no less naïve in her handling of this matter, by referring to the fact that this potential witness was some distance away, in the area where the father and daughter had previously lived.

Vital

The supreme court said the evidence of that witness was vital; it could have proved the girl’s first report of the rape and it might have been corroborative in other ways that tended to show whether the girl was telling the truth.

So why was BG not called by the prosecution? Through sheer neglect or dereliction of duty, concluded the court. That she lived some distance away was no excuse for the prosecution not to call her. The fact that she was not called ‘destroyed the prosecution’s case’ because there was no other corroboration of girl’s evidence.

The third issue that neither side raised – whose was the burden of proof? – was also crucial. If a defence is raised, the onus is on the prosecution to disprove it, not for the accused to prove it. After the father raised the question of a medical examination that could amount to his defence, the court ‘rightly’ ordered that he be taken for a medical examination. But the magistrate then forgot her own order, and instead of ‘taking the clerk of the court to task for dereliction of duty’, she wrongly imposed the burden of proof on the father.

There was no knowing what a medical examination might have shown but without that evidence, the case was not proved beyond reasonable doubt, and for that reason alone, the father would have been entitled to an acquittal.

Technical legal issues

The supreme court, having put its finger on the weakness of the prosecution’s case and the magistrate’s findings, then released the father. Although this was the correct legal decision, I can’t help wondering how judges in such a position feel. Having set the former accused free, they will also be aware of the vulnerable position of his daughter. It’s an ongoing problem: right the way across the region, in every country, trial courts and prosecutors too often make mistakes that result in an accused being set free because of technical legal issues.

When we think about how to deal with issues of gender-based violence, this is something that comes to mind: the justice system needs to be better trained and prepared so that potentially far-reaching problems like this do not occur.

Carmel Rickard

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