S V MAREYA & THE STATE’S VIOLENCE AGAINST CHILDREN

Mhaka Tinatswe

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On the 26th June 2018, Nora Kanyemba arrived home from work to find her children Rutendo and Mukudzei (8 & 2 years old) distressed. Mukudzei cried that her private area was painful and when Nora started to change her diaper  she noticed that extensive damage had been done to both her vaginal and anal area, and there was evidence of semen and mucus excreetion. The two year old communicated that her father had hurt her after giving them candy and thereafter would not allow anyone to touch her, and looking at Rutendo the same was confirmed. In her lack of certainty Nora neglected to confront her husband despite the allegations (a fact later used to insinuate a lack of certainty by the mother herself).

Upon reporting the crime at both the police station and the hospital, state officials at both institutions failed to administer rape kits, despite the fact that there was bruising , DNA evidence and anal bruising  attesting to that fact that the children had been sexually assaulted. Solomon Mareya was charged with rape under section 65 of the Criminal Law (Codification and Reform). At the trial, the nurse who had examined the child admitted that although these bruises and semen like substance was found on both girls “anything” could have caused the bruising. At the trial, both children were declared to be incompetent witnesses despite the fact that it was clear they were communicating their father had inflicted the injuries they cleary did not understand (accordingly so).

In his ruling, Regional Magistrate Nemadire said that the nature of the report left much to be desired.  He said that the lack of medical reports and witnesses to corroborate the story in addition to the mother’s delayed reaction meant that the state had failed to make a sufficient enough case. Solomon Mareya was acquitted at the close of the state case in accordance of section 198 of the Criminal Procedure and Evidence Act that states if at the close of the states case an accused must be discharged and does not even need to provide his defence. 

It is debatable that there was not sufficient evidence. The children had only been with the father in the hours the mother was away, both subsequently CLARIFIED what had been done to them,by who,  both expressed pain in their genital area and yet their competence was still questioned. The duty of the justice system, especially where children have been subjected to harm, is to find out the truth and not to find all avenues that lead to possible innocence on behalf of an alleged predator. While rules and procedures are important to the realization of justice & the right to a fair trial there is a thin line where many accused persons that have committed crimes are acquitted because of unspoken willingness by the system to do the harder job, which is to challenge status quos and aggressively make an example of offenders. Ofcourse the inadequacy of legislation and its ineffectiveness in polarized and corrupt spaces contributes greatly to the bigger issue and that presents difficulty in taking strides towards law reform.

The duty to protect children is not however that of the courts alone. Gross negligence on the part of the Zimbabwe Republic Police and government health professionals costs women and children their lives and dignity everyday. The solution is a financial one because within economic turmoil the only thing Ministries are aggrieved about is money. Much like the Mildred Mapingure case government institutions must be held against their duty to protect and be subjected to financial liability in cases like this where they have failed to deliver justice simply because a few individuals did not feel like it. The Judicial Service Commission ought to embark on an agenda that frowns up sexual crimes at all cost. Now more than ever is the time for judicial activism. 

Relevant links :

https://zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2014/22/2014-zwsc-22.pdf

Judgement not yet available online.