The Zimbabwe Prisons and Correctional Service (ZPCS) has justified the release from prison of Bobby Makaza, a convicted rapist, under a recent presidential amnesty order.
Makaza, who resides in Murehwa in Mashonaland East province, was released from Harare Central Prison on 19 May 2023 under a presidential amnesty declared by President Emmerson Mnangagwa on 12 May 2023.
The presidential amnesty benefitted some inmates, who included convicted sexual offenders after President Mnangagwa gazetted Clemency Order No. 1 of 2023, where he exercised his prerogative of mercy to release some offenders from some jails located across Zimbabwe in a move hailed by ZPCS as aimed at reducing the prison population.
This saw the minor’s parents engaging and tasking Tinashe Chinopfukutwa and Paidamoyo Saurombe of Zimbabwe Lawyers for Human Rights, to file an application at Harare High Court on 14 July 2023 seeking an order for the issuance of a warrant of arrest for Makaza after arguing that he was unlawfully and irregularly released from prison.
Chinopfukutwa and Saurombe also asked the High Court to declare as unlawful ZPCS’s decision to release Makaza from prison after he was convicted in 2019 and having just served some few years of his prison sentence.
The human rights lawyers stated that the 15 year-old minor was raped by Makaza in 2018, who stood trial at Murehwa Magistrates Court in Mashonaland East province, on a charge of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act and was convicted and sentenced to serve an effective 16 years prison term on 2 April 2019.
Chinopfukutwa and Saurombe said in terms of section 12(d) as read with 13(c) of Clemency Order No.1 of 2023, Makaza being an inmate convicted of rape which is a specified offence, was excluded from benefitting from the presidential amnesty.
But in response to the application filed by the parents of the minor, Shephered Mpofu, the Acting Commissioner-General of ZPCS, defended the release of Makaza from prison and stated that he was not wrongly released from prison but was correctly set free following a thorough assessment of his identity and age.
In his opposing affidavit, Mpofu argued that by the time that Makaza was released from prison, he had attained his 60th birthday on 25 January 2023 and by the effective date of Clemency Order Number 1 of 2023, which was gazetted by President Mnangagwa on 12 May 2023 and which authorised his release and those of other inmates from prisons across Zimbabwe, he was three months, seven days and six hours older than his 60th birthday and therefore he was a deserving candidate for release and entitled to full remission of sentence for prisoners aged 60 years and above.
The ZPCS boss argued that at the time of the promulgation of Clemency Order 1 of 2023, Makaza had served one tenth of his sentence which amounted to 19 months and seven days by 9 September 2022.
He stated that the minor’s parents must not be aggrieved by the release from prison of Makaza on the strength of Clemency Order Number 1 of 2023 as this was promulgated in terms of the law and ought to be respected by every law abiding citizen of Zimbabwe and that President Mnangagwa is not obliged to consult victims for purposes of promulgating a Clemency Order.
Mpofu said the minor and her parents need professional counselling in order to understand the essence of the crime, conviction, sentence and release of Makaza and argued that the rapist’s release from prison was primarily based on Clemency Order Number 1 of 2023 in which full
remission of sentence was granted to prisoners with 60 years and above regardless of offence save for those who were sentenced to life imprisonment, death, or those convicted of public violence.
The matter is yet to be set down for hearing.
