Court to rule on Zim group sex case

LEKOPANYE MOOKETSI
Correspondent | Friday February 1, 2008 00:00

The accused have also been charged with facilitating rape after allegedly forcing two Zimbabweans to have sex without their consent. 

The prosecution and the defence both made their submissions this week. The defence counsels submitted that their clients have no case to answer since the evidence of the complainants was manifestly unreliable. They also questioned the manner in which the identification parade was conducted and that the complainants never gave the police a prior description of the suspects. 

One of the defence lawyers stated that one of the plaintiffs exaggerated his evidence to the extent that he claimed that he was still experiencing a backache as a result of a forced masturbation, two years after the incident.

Making his submissions, prosecutor Bafi Nlanda  said the state has established a prima facie case against the accused. Dismissing the defence attorneys' submission that the identification parade was flawed, the prosecutor said there was no doubt about the identities of the accused people. He said when interviewed by the investigating officer, the accused never denied that they were at the scene of the alleged crimes. They only accused one another of committing the acts.

Nlanda said the state has established the essential element of rape against the accused who are charged with rape. 

He submitted that when they were forcing the Zimbabweans to indulge in sex, they were enjoying the incident, laughing and screaming. He said they even shouted that the man should do it.

Nlanda said the accused were directing their torches at the private parts of the two people, to ensure that sexual intercourse was taking place. He added that they even opened the woman's legs.

The prosecutor argued that an element of sexual gratification is inferred under those circumstances. 'They were doing it for their sexual gratification. If you cause somebody to penetrate another person for purposes of sexual gratification, it does not matter who it was meant for.' He said even if it was meant for one of the complainant's (PW2's) sexual gratification, it does not change anything.

'Why would anyone want to force people to have sexual intercourse other than for sexual gratification? There is nothing absurd about the provision to punish people who force others to have sex. We know that if you force people to have sex for sexual gratification then you have also raped,' he said.

Commenting on other counts, Nlanda said forcing people to masturbate is not only indecent but also unlawful. 'Forcing people to undress and watch them is indecent and unlawful. It is even worse when you force people to have sex in your presence,' the state counsel submitted.

He said the evidence of one of the police officers was never challenged when he said the accused people went into one of the houses where the Zimbabweans were allegedly being harassed. He added that the witness told the court that when he went to find out what was happening, he found a naked man and woman lying on the floor in the house. The witnesses said he also found two naked women running around. He then told the other officers that they should leave the Zimbabweans and go.

'What were the naked people doing in the presence of soldiers and police officers. Why would those people want to lie against officers particularly since they were found with valid passports? The situation could have been different if they were staying in the country illegally. I don't understand why we should not believe these people,' the prosecutor said.

Countering the defence counsels' argument that a medical doctor had testified that  most of the complainants did not have serious injuries, Nlanda said it was not in every case where everyone who had been assaulted would have injuries. 'I don't know whether my friends wanted fractured ribs and broken bones,' he said. 

He said the medical records showed that some of the complainants had injuries. Nlanda said when a police witness told the court that the accused went into one of the houses where the Zimbabweans were allegedly harassed, this piece of evidence was never challenged. He said this confirms that they were there. But he said, on the other hand, the accused persons' lawyers were disputing it when the complainants told the court that the accused were at the houses where they were allegedly harassed. 

He said when the witnesses testified, none of the defence lawyers said that his client tried to stop the harassment. He added that this could have showed that this particular accused person did not take part in the alleged harassment. Similarly, he said, none of the accused reported to the police that his colleagues were harassing Zimbabweans, if they wanted to dissociate themselves from the conduct of the others. 'We are talking about law enforcement officers and not ordinary people,' said Nlanda.

The accused persons, who are all out on bail, are: Samuel Seshabo, Pako Tlhabaki, Thato Bojosi, Moagi Samson and Kodziba Balopi (all soldiers) and special constables Sidney Ntope and Phetogo Ganakobo. They are represented by Gaborone attorneys Busang Manewe, Tshiamo Rantao, Oduetse Langwane and Batsho Nthoi.

The alleged harassment of Zimbabweans is said to have taken place at Ramotswa in November 2005 when the soldiers and special constables were on night patrol.