THE State V Gabriel Maguya AND Stephen Maguya

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                                                                HH 231-2011
                                                           CRB No. B506-7/11
THE STATE
versus
GABRIEL MAGUYA
and
STEPHEN MAGUYA

HIGH COURT OF ZIMBABWE
PATEL & CHATUKUTA JJ

Criminal Review

HARARE, 18 October 2011



      PATEL J:     The two accused persons in this case were found

guilty on their pleas of guilty to a charge of contravening section 94 of

the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The facts

giving rise to the charge were that the accused persons pledged the

complainant, their female relative, to the family of one Fredy Neruwana

who was killed by Nerimonos Maguya in 1980. The complainant was

pledged some time in 2005, when she was a minor, as compensation for

the death of Fredy Neruwana. Paragraph 6 of the State Outline suggests

that she was pledged in marriage to the Neruwana family.

      Upon conviction, the two accused persons were sentenced to a fine

of US$600 and US$300, respectively, or 6 months imprisonment in

default of payment of the fine. After having convicted and sentenced the

accused persons, the learned trial magistrate took the view that the

charge was defective in that it criminalised an act committed before the

creation of the offence in question.

      In terms of S.I. 152 of 2006, the Criminal Law Code came into

operation on the 1st of July 2006. By virtue of section 2(2) of the Code, a

reference in the Code or any other enactment to a crime mentioned in
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the Second Schedule shall be construed as referring to that crime as

defined in the relevant provision of the Code. The crime of “pledging a

female person” is specifically mentioned in the Second Schedule as

corresponding to section 94 of the Code.

      In terms of section 11(1) of the Customary Marriages Act [Chapter

5:07], any agreement in which a person, whether for consideration or

otherwise, pledges or promises a girl or woman in marriage to a man

shall be of no effect. Section 11(2) makes it an offence for any person to

enter into any such agreement. Additionally, section 15 of the Act

penalises any person who by force, intimidation or other improper

means compels or attempts to compel any female to enter into a

marriage against her will.

      Paragraphs (b) and (c) of section 94(1) of the Criminal Law Code re-

enact the offences proscribed by sections 11 and 15 of the Customary

Marriages Act. Paragraph (a) of section 94(1) specifically criminalises the

so-called practice of “noxal surrender”, by making it an offence to hand

over a female to another person, as compensation for the death of a

relative of that person or as compensation for any debt or obligation.

      As is evident from the foregoing, the crime of pledging females is

not new and was clearly penalised under sections 11 and 15 of the

Customary Marriages Act. What appears to be new, but in fact is not, is

the offence of noxal surrender elaborated in section 94(1)(a) of the

Criminal Law Code. Although the compensatory aspect of noxal

surrender is distinct and peculiar to the offence under section 94(1)(a),

the mischief aimed at by these offences is the same, viz. the non-

consensual pledging of females. In practice, noxal surrender has always

been treated as a species of the arrangements prohibited by section 11

of the Customary Marriages Act, and has been penalised accordingly.
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       It follows that the charge in casu did not purport to criminalise any

conduct perpetrated before the creation of the crime in question. It was

not defective or incompetent on the facts of this case. In the result, the

conviction of the accused persons is confirmed, as are the sentences

imposed upon them, as being in accordance with real and substantial

justice.



CHATUKUTA J:        I concur.