A 15-year-old boy has filed an application to the High Court for criminal review, challenging the charges of defilement contrary to Section 138(1) of the Penal Code.
The applicant wants the High Court to determine whether it is appropriate for him to continue appearing before a subordinate court over charges bordering on consensual sexual relationship with a fellow adolescent.
The matter first came before the magistrate court on January 8 2021 where the boy, who is alleged to have committed the offence at his home in Thyolo on New Year ’s Day, was given bail.
On Wednesday, the matter came before High Court Judge Agnes Patemba where the State raised preliminary objections to the application.
The State, through senior State advocate Gift Msume prayed to the court to dismiss the application arguing it was misplaced and premature.
He argued that, among others, in terms of the law under sections 25 and 26 of the Courts Act and Section 42 of the Constitution under which the application was made, the court has powers to review decisions and proceedings in subordinate courts.
Msume also argued that the application before the court was raising constitutional matters and yet in the lower court there were no issues on whether it wanted to construe the provisions of the Constitution.
“In addition, the application can come through judicial review and other procedures… Again the right party to respond to such issues of constitutionality is the office of the Attorney General and not the office of the Director of Public Prosecution,” he told the court.
But counsel for the applicant Chikondi Chijozi argued the case was properly brought before the High Court because in terms of the law under Section 26 of the Courts Act, the court has general supervisory powers at any stage of the proceedings that are before the subordinate court.
“So at this point in time a child has been charged with the offence of defilement and the court has to exercise its supervisory.
“Our view is that the matter was properly brought before the High Court but as to how the court will proceed with the issues that are raised before it is up to the court.
“If it makes the conclusion that indeed there are constitutional issues being raised in terms of Section 9(2) of the Courts Act, the court can refer the matter to the Chief Justice for certification so that the matter should be heard before a panel of three judges,” she said in an interview later.
The court then gave the State 14 days to file written submissions on the preliminary issues that were raised by the State and Judge Patemba will then make determination 14 days after the submissions are filed.
The boy was arrested in early January this year at Ndalama Village, in Thyolo. He was given bail on January 8 2021 when he appeared before the magistrate court.
“Since the matter is now before the High Court, then automatically under the law the proceedings in the lower court are stayed until the High Court makes a determination,” said Chijozi.
Chijozi, who is from the Southern Africa Litigation Centre, is jointly prosecuting the matter with Ruth Kaima of Centre for Human Rights Education Advice and Assistance.