Tuesday, May 18, 2021

Court doubts alleged victim’s age in defilement case

In a double victory, a Lehututu man walked out of the Gaborone High Court a free man in an out-of-the-ordinary defilement case.

Three years ago this Thursday, Kabo Lenkopane is alleged to have lured an underage primary-school girl (a neighbour’s daughter) to his home where he had sex with her. The matter was reported to the police who arrested him. At a subsequent trial where he called five witnesses, he pleaded not guilty but to no avail. The magistrate convicted and sentenced him to 10 years in prison. When his case before Justice Dr. Zein Kebonang this month, Lenkopane was making an application for bail pending appeal. However, at the hearing of the application, both parties agreed that the matter should be heard as a substantive appeal.

In terms of Botswana law, children below 16 years are deemed to be incapable of consenting to sex and any person who has sexual intercourse with one that young commits the crime of defilement. In one part of the judgement that explains this rationale, Kebonang quotes a judgement from the United Kingdom which uses some really colourful language to analyse male sexual psychology and the carnal travel habits of the penis.

“Every male has a choice about where he puts his penis. It may be difficult for him when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13, he has committed an offence … The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger,” reads a judgement delivered by Baroness Hale of Richmond.

The prosecution’s case was that Lenkopane had defiled the neighbour’s daughter (Public Witness 1) because when he slept with her she was below 16 years.

“The question to be asked therefore and answered in the instant case is a fairly narrow one, and that is, whether the complainant was below the age of 16 years at the time when sexual intercourse took place. The state says she was. In support of this claim, the state did two things: it called the complainant’s mother [Public Witness 3] as a witness and introduced into evidence, the birth certificate belonging to the complainant’s brother [Public Witness 8] to prove the age of the complainant,” Kebonang’s judgement says.

Giving evidence the first time at the magistrate court, the mother told the court that she was “unemployed and illiterate”, qualifying the latter with explanation that she wouldn’t know the birthdate of her daughter, the alleged victim. However, she added that the girl had a twin brother, whose birth certificate she had at her house. The girl’s had supposedly perished in a house fire. Recalled to the witness box for the second time by the prosecution, the mother stated that she was 53 years old, confirmed the twins’ age and informed the court that her own mother was present when she gave birth to them and produced the boy’s birth certificate. The state didn’t call the grandmother ÔÇô or any other witnesses for that matter, to confirm the mother’s account.

Cross-examined by the defence attorney, Dr. Onkemetse Tshosa, the mother admitted that those who could attest to her children being twins were not in court. While Tshosa, a former high court judge, would later argue that the recalling of the mother as a witness and the introduction of the brother’s birth certificate were “meant to fill the gaps in the state’s case”, Kebonang took a different view. In the latter’s judgement, he counter-argues Tshosa’s point by stating that it is a matter of public importance that if justice can be done by recalling witnesses, then that should be done. 

In 2007 and while a High Court judge, the current Court of Appeal justice, Ian Kirby, ruled that the best evidence of age was an official birth certificate based upon hospital records or where none existed because the birth was a home delivery, the evidence of the mother, midwife or other eyewitness to the birth. In reviewing the case before him, Justice Kebonang said that no midwife or eyewitnesses to the birth were called to give evidence and that a copy of the complainant’s birth certificate was not produced in evidence. The upshot of it all, he concluded, is that there is no evidence that the supposed twins are even biologically related.

“The state merely relied on the evidence of the mother and yet the mother had stated that she was illiterate and did not know when the children were born. I ask; were the twins fraternal (dizygotic) or identical ones (monozygotic)? What was the basis for holding that PW1 and PW8 were twins? In my view, it was unsafe for the trial court to have relied on the mother’s testimony on this aspect of the case without more. This was a case where [DNA] testing could and should have been done to establish whether PW1 and PW8 were indeed twins. With no DNA testing and no copy of PW1’s birth certificate, the biological relation between PW1 and PW8 was not established,” says Kebonang in the most crucial part of his judgement.

The state’s case was that the complainant’s age could be established by reference to her brother’s birth certificate since the two were twins but Kebonang’s judgement raises doubt that “nowhere on the birth certificate does it say that PW8 and PW1 are twins. No independent witnesses were called who could attest to PW1 and PW8 as being twins. There was nothing before the trial court that pointed to PW1 and PW8 as being twins. Even if they were twins, this was an issue that should have been established independently if reliance was to be placed on PW8’s birth certificate.”

In the final analysis, Kebonang ruled that the state had not established beyond reasonable doubt that PW1 and PW8 were twins and consequently did not establish the age of the complainant beyond reasonable doubt. The result was that “the appellant is acquitted and discharged of the offence of defilement and is hereby set free.”

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