I CAN’T JAIL ‘DEFILER’ AFTER WRONG CONVICTIONS – COURT
ISRAELI Zulu was arrested and charged with the offence of defilement of an imbecile. He was later taken to the Magistrate Court for trial where he was found guilty and convicted. However, since the minimum sentence for this offence is 14 years, it required the High Court to pronounce the sentence. And so, the Magistrate Court referred the matter to the High Court for sentencing.
However, when the matter came up at High Court, the lawyer representing Zulu raised two key procedural issues. He informed High Court that that the Magistrate did not find Zulu with case to answer even though he testified.
The High Court Judge looked at the record and indeed found glaring procedural irregularities in the way the case was handled by the Magistrate. He noticed that the Magistrate found Zulu with case to answer after he had already testified.
“Therefore, it is a misdirection to deliver a ruling on a case to answer after the accused person has already given his evidence as the lower Court did,” the Judge noted.
“The accused person was, therefore, made to answer to a case that had not been established on prima facie basis as is required by law,” the Judged added.
The Court also noted that a child gave evidence but the procedure was not followed by the Magistrate especially after it was found that the child did not possess sufficient intelligence nor understand the duty to speak the truth.
“Proceeding to direct the child witness to give sworn evidence was a serious misdirection on the part of the Magistrate and obviously prejudicial to the convict,” the Judge said.
As a result, the Judge refused to sentence the accused person and instead set aside the Judgment as it was procured without following the laid down legal procedures in criminal cases.
“I hereby set aside the conviction imposed by the lower Court and refer the matter back to the Subordinate Court for retrial before another Magistrate of competent jurisdiction,” the Judge ruled.
He also noted that the Judgment was not properly written as it did not have the number of witnesses who testified as well as the evaluation of their evidence and testimonies as required in any Court Judgment.
“It is apparent at J2 and J3 that the Magistrate went directly into the findings of fact without reviewing the evidence which was the basis of the said finding of fact,” the Judge observed.
Case citation – The People v Zulu – HPS/45/2025 and Ruling delivered in September, 2025.
Lecture notes;
1. It is mandatory for the Court to deliver ruling whether there is a case to answer or not at the close of the prosecution case. You cannot deliver that ruling after the defendant has given his testimony. His defense is anchored on the fact he has been found with case to answer.
2. Before a child gives evidence, a trial within a trial is conducted to establish whether the child has sufficient intelligence to give evidence or indeed understand the necessity of telling the truth. If child doesn’t, he or she cannot give evidence on Oath.
Dickson Jere