4.9 Sentencing The events of January 2019 were characterised with inconsistencies in the sentences that were being passed by Magistrates. Whilst some children were given wholly suspended sentences, some were ordered to perform community service whilst some were sentenced to corporal punishment. Others were warned and cautioned. No convicted children were referred to the Children’s Court to be dealt with in terms of the Children’s Act, and no children were sentenced to effective imprisonment. Children convicted of public violence and other alternative charges were given the following sentences: Postponement and Suspension of Sentence In some cases, passing of sentence was postponed for periods ranging from 3 to 5 years. Other were granted imprisonment terms ranging from 6 months to 2 years, which sentences were wholly suspended on imposed conditions. Warned, Cautioned and Discharged A few children were warned, cautioned and discharged on conviction. Community Service One 17-year-old boy in Bulawayo represented by ZLHR was ordered to perform 105 hours of community service. In another case, a 17-yearold boy in Form 4 who was represented by JC at Tredgold Magistrates Court was sentenced to 18 months imprisonment, 6 months of which were suspended on condition that he does not commit a similar offence and the other 12 months suspended on condition the he performs 420 hours of community service during weekends. The lawyers noted an appeal against the sentence, and it is pending in the High Court in Bulawayo. Corporal Punishment In spite of protests and spirited arguments by the legal representative, some children convicted of public violence were sentenced to corporal punishment, the minimum imposed being 3 moderate strokes and the maximum being 5 moderate strokes. The 5 strokes were imposed by Regional Magistrate Hosea Mujaya at Rotten Row on 14 February 2019, and were in addition to a wholly suspended prison sentence of 6 months. This matter was reported in the Daily News.50 The Constitutional Court of Zimbabwe has however banned judicial corporal punishment on the grounds that it is by nature, intent and effect an inhuman and degrading punishment within the meaning of Section 53 of the Constitution of Zimbabwe.51 The declaration of invalidity of section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] which allowed for judicial corporal punishment, only took effect on 3 April 2019 with the effect that no male juvenile convicted of any offence shall be sentenced to receive moderate corporal punishment. The prohibition applies to sentences to receive moderate corporal punishment that had already been imposed and were awaiting execution. 4.10 Completion of Trials and Authority to Prosecute Trials involving children were dispensed with timely, taking an average of two-three days to be completed, although in some instances it took one week. There are some trials that have not kicked off as at the publication of this report, pending authority to prosecute from the Prosecutor-General due to the ages of the children. In terms of section 231 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], children under 14 years of age cannot be prosecuted unless a certificate authorising the prosecution is issued by the Prosecutor-General. The latest public violence case involving a child to be handled was completed at Western Commonage Court in Bulawayo in mid-June, where the Prosecutor-General issued authority to prosecute for a 13-year-old girl. The minor was convicted for theft. Some cases were placed off remand, for the primary reason that the State was not ready to proceed to trial as it had no evidence. For instance, at Rotten Row Court on 23 January 2019, JC represented four (4) minors whom it had earlier attended at the CID Law and Order at Harare Central Police Station and these 50. “Teen receives 5 strokes of the cane” Daily News, 15 February 2019, http://www.zncwc.co.zw/2019/02/15/protests-teen-receives-5-strokes-of-the-cane/. 51. S v Willard Chokuramba CCZ 10-19. 26 ‘Hear them Cry ’ – An Analysis of State Violence Against Children During the January 2019 Protests