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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 18 of 2004
High Court Criminal Committal No. 13 of 2000
In the matter between
KARABO BAKANG MOGAPI APPELLANT
VERSUS
THE STATE RESPONDENT
Appellant in person
Ms. P. K. Israel for the Respondent
J U D G M E N T
CORAM: ZIETSMAN J.A.
AKIWUMI J.A.
MOORE J.A.
MOORE J.A.
The Appellant was charged and convicted of the offence of rape contrary to section 141 as read with section 142 of the Penal Code Cap 08:01 as amended by sections 3 and 4 of Act No. 5 of 1998. The particulars of offence alleged that the Appellant and another not before the court, on the 28th February 1999, at Lekgwapeng ward, Molepolole in the Kweneng Administrative District, acting together in concert, unlawfully had carnal knowledge of N. M. without her consent.
There was a sufficiency of credible evidence before the court of trial from which it could properly conclude that the three basic elements of the offence of rape were all proved by the prosecution to the requisite criminal standard of proof beyond a reasonable doubt. These were, as the magistrate set them out at p. 29 of the record -
That an act of sexual intercourse was performed on the complainant.
That the said act was performed by the now accused.
That the said act was performed without the consent of the complainant.
The evidence and the facts found by the learned Magistrate are admirably set out in the judgment of the court below. The findings and rationes decidendi of the magistrate received the ringing endorsement of Unity Dow J to whom the matter was referred by the magistrate, exercising powers conferred by sections 295 and 296 of the Criminal Procedure and Evidence Act Cap 08:02 who took the view that the court of trial lacked the jurisdiction to pass the minimum sentence prescribed by law.
Dow J. having satisfied herself of the correctness of the magistrate’s findings and of the conviction of the Appellant, then gave consideration to both the mitigatory as well as to the aggravating circumstances as they related both to the offender and to the offence. On the mitigating side was the youth of the Appellant who was aged 23 when he testified, his unemployment, and the fact that he was found to be HIV positive and described himself as a patient. She considered too, that the Appellant was probably suffering from pangs of jealousy as the complainant was in company with one A. that night, and remained so despite the several enquiries of the Appellant about her being in company with A., to which he received replies that did not satisfy him that the relationship between the complainant and A. was of a purely platonic nature.
In aggravation, Dow J. took into account that, by having unprotected sex with the complainant, he exposed her to the risk of infection with the HIV virus. From the evidence, the unfortunate lady was gang raped upon a pathway in such rude surroundings that the police were able to detect the disturbance of the scene on the following day. Worse still, was the fact that a knife was used to terrorize the complainant, to overcome her resistance, and to silence her screams for help.
Rape is the ultimate invasion of feminine privacy. But this was an aggravated form of that horrendous offence for the reasons set out above. The legislature has considered rape to be so grave an offence, that it is punishable by imprisonment for life and by corporal punishment. As a further mark of its disapprobation of this abominable crime, it has specified a statutory minimum of ten years.
Dow J. was entitled to hold that the appropriate sentence should be enhanced beyond the minimum base which the law allowed. She eschewed the chastisement of a man who is affected with the HIV virus and who is a patient, by declining to heap the agonies of the cane upon the term of imprisonment which she considered appropriate in all the circumstances. She raised the level of her award moderately above the statutory minimum of ten years. The sentence of twelve years imprisonment is fitting in all the circumstances of the case. This court has no reason to disturb it.
The conviction and sentence of the Appellant are accordingly upheld. The appeal is therefore dismissed.
Before this court departs from this appeal however there is one matter upon which we think that there should be some comment.
THE ADMITTED RAPISTS
It was the accepted evidence of the complainant that she was raped by three persons. The Appellant was the only one of those persons charged before the court with the offence. During the course of argument, it became evident that the other two who were not before the court below and had raped the complainant, had apparently escaped prosecution. Counsel for the State, for her part, seemed peeved that, having not been prosecuted, they then appeared at the trial court and gave evidence on behalf of the Appellant. A brief discussion then ensued as to what might have been the considerations which might have caused them not to be prosecuted if that was in fact the case.
From the record, it appears that A. M. (DW2) gave his age as 15 years when he testified on the 23rd August 1999. This suggests that he would have been at least 14 years old when the offence was committed on the 28th February 1999. It appears that P. G. (DW3) was aged 16 when he testified on the 23rd August 1999. Thus he would have been at least 15 years old at the time when the offence took place on the 28th February 1999.
The statutory provisions which appear to be relevant to the question whether or not they could have been prosecuted for rape in the circumstances of this case, and having regard to their ages are as follows:
Section 2 of the Criminal Procedure and Evidence Act Cap 08:02 which defines juvenile thus: ‘“juvenile” means any person under the apparent age of 18 years.’
Under section 2 of the Children’s Act Cap. 28:04 ‘“juvenile” means a person who has attained the age of 14 years and is under the age of 18 years.’
By section 22(3) of the Children’s Act Cap 28:04 where a child or juvenile is charged jointly with a person who is aged 18 years or over, the child or juvenile shall be given a separate trial from the other accused person.
Section 13(3) of the Penal Code Cap. 08:01 provides that “A male person under the age of 12 years is presumed to be incapable of having carnal knowledge.”
Section 26 of the Criminal Procedure and Evidence Act Cap. 08:02 which provides that a prosecution for the offence of rape is barred only after the lapse of 20 years from the time when the offence was committed.
13. Read together, it is clear from these provisions
That DW2 and DW3 are presumed to be capable of having carnal knowledge.
That they are juveniles under both the Children’s Act Cap 28:04 and under the Criminal Procedure and Evidence Act Cap 08:02.
That if they were charged jointly with the Appellant, they would have had to be tried separately from the Appellant.
That they could both be dealt with either individually or jointly under sections 27 to 32 of the Children’s Act Cap 28:04.
That they are still liable to be prosecuted since their prosecution is not yet barred by a lapse of 20 years from the time when the offence was committed.
14. Since the record appears to be silent on the manner in which DW2 and DW3 were dealt with, under the Children’s Act or otherwise, following the complainant’s allegations against them, it would appear that further enquiries into the matter may be warranted so that these two young persons who so cavalierly testified about themselves raping the complainant in what Dow J. correctly regarded as an aggravated manner, may be subjected to the procedures open to the authorities under the Children’s Act Cap 28:04, lest they continue to grow up with the misguided notion that they could rape the complainant, or other innocent ladies, in the manner described by them upon their own oath, with impunity.
DELIVERED IN OPEN COURT AT LOBATSE THIS … DAY OF JULY 2004.
____________________________
S. A. MOORE
JUDGE OF APPEAL
_______________________
I AGREE N. W. ZIETSMAN
JUDGE OF APPEAL
_______________________
I AGREE A. M. AKIWUMI
JUDGE OF APPEAL
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