- The victim had testified that she had been Dziwe's girlfriend since April 2019 and referred to him as her husband.
- After delivery a DNA test confirmed Dziwe was the father of the complainant’s child.
Image: FILE
Chaniro Dziwe was 19 years old and in Class 8 when he fell love with a classmate aged 16.
The two - who the court learned even considered themselves husband and wife - engaged in sex, resulting in a pregnancy.
Little did the young man know that the short-lived escapade would not just scuttle his education and see him jailed but also upend his life completely.
Dziwe was arraigned in a magistrate's court and sentenced to 15 years.
He appealed at the High court, complaining that the trial magistrate erred in law and fact by not considering that there were contradictions and discrepancies in the prosecution's case.
Among other issues, he alleged that the magistrate failed to consider that the doctor’s evidence did not corroborate the complaint’s testimony.
A review of the trial file showed that KK, the victim, had testified that she had been Dziwe's girlfriend since April 2019 and referred to him as her husband.
She told the court they went to the same school.
An examination by a local clinical officer found her to be expectant and after delivery a DNA test confirmed Dziwe was the father of the complainant’s child.
The court said this confirmed that penetration was achieved, a key point in proving defilement.
The court then upheld the guilty conviction.
Section 8 (4) of the Sexual Offences Act provides that “a person who commits an offence of defilement with a child between the age of 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years.”
“The prosecution adduced evidence that proved its case against the appellant beyond any reasonable doubt,” the judge said in a January 12, decision.
But at this point the judge said the case should be handled in a conventional manner and that there must be some discretion to appreciate that there was likelihood the sexual relationship between the two was consensual.
The court also said the age gap between the two was small.
“This is a case that calls for a different approach other than applying the sentence mechanically. The complainant and the appellant were in the same school and I am persuaded to believe that their age difference was negligible, the appellant having attained the age of majority before the complainant notwithstanding,” the judge said.
“At the time the appellant tendered his defence he said he was 21 years old. He said he was in Class 8 at Mwachanda Primary School. This was not disputed and renders credence to the complainant’s assertion that they were schoolmates. This would mean at the time of the offence he was 19 years old,” the judge added.
“From the foregoing, I set aside the sentence imposed by the learned trial magistrate and substitute with a probation order for three years.”
The decision in the case adds to the debate among social justice actors who have been calling for review of the Sexual Offences Act to change the approach in handling offences that involve young people whose sexual relationship was consensual.