Online Reporter
Zvikomborero Parafini
MADZIBABA Gathry has been described as a “manipulative sadist” who is a danger to society by a regional magistrate, who jailed him for TWENTY years for raping a teenager.
Harare Regional Magistrate Estere Chivasa also sentenced Madzibaba Gathry’s wife, Diana Chauke, to an effective 15 years in jail after ruling that she took part in the offence.
She described it as unacceptable that a self-styled healer demanded sex from the daughter of a desperate mother who had sought spiritual assistance for her two mentally challenged children.
In a detailed judgment delivered yesterday, Magistrate Chivasa said the testimony of the 13-year-old complainant was truthful, consistent and free from any signs of coaching.
The complainant’s mother, who had been jointly charged with the couple, was acquitted.
The court accepted that she acted under duress after allegedly being threatened with a firearm.
Magistrate Chivasa said the child’s testimony was remarkably consistent with both the medical evidence and the account given by her mother.
“I found her to be a credible witness. She managed to answer the questions put to her and remained consistent even under cross-examination,” she said.
She said the child gave a chilling account of the abuse and displayed no signs that she had been coached, despite Madzibaba Gathry’s insistence that her mother had influenced her testimony.
The court noted that when the child demonstrated what had happened to her in court, the demonstration clearly depicted sexual intercourse while remaining consistent with the medical findings.
Magistrate Chivasa said all three accused persons admitted that a disturbing incident had occurred during the healing session, effectively placing themselves at the scene and in close proximity to the complainant.
The magistrate said the child made a prompt report of the abuse, telling her mother the following day, which strengthened the credibility of her allegations.
“The bottom line is that she made a prompt report. “There is nothing to suggest that her mother influenced her,” the magistrate said.
The court heard that after the assault, the complainant had soiled her underwear while cleaning herself and the evidence surrounding the clothing was consistent with her account.
Addressing the issue of consent, Magistrate Chivasa said the complainant, being only 13 years old, was legally incapable of consenting to sexual intercourse.
She added that, in any event, any purported consent would have been invalid because intimidation had been used.
“The complainant was intimidated with a firearm by the couple.
“Under those circumstances, she could not have consented,” the magistrate ruled.
“It is unacceptable that the healer demanded sex from the child of a mother whose children were mentally ill after intimidating her.”
The court dismissed Madzibaba Gathry’s defence that the allegations had been fabricated because of a US$500 debt allegedly owed to him by the complainant’s mother.
Magistrate Chivasa said the explanation did not withstand scrutiny because the complainant had no prior relationship with him and, therefore, had no reason to falsely implicate him.
She also noted that the mother’s own evidence incriminated herself, making it improbable that she would deliberately fabricate allegations that exposed her to criminal liability.
Magistrate Chivasa observed that the allegations only surfaced after the family sought help from another prophet, who was previously unknown to Madzibaba Gathry, eliminating any realistic opportunity for the allegations to have been concocted.
Turning to Chauke’s role, the magistrate found that she fitted the legal definition of an accomplice because she knowingly facilitated the rape.
The court heard that Chauke suggested that the complainant’s mother should allow Madzibaba Gathry to have sexual intercourse with the child as part of the purported healing process.
She then vacated the matrimonial bedroom, leaving her husband alone with the complainant, despite the mother’s repeated objections.
Magistrate Chivasa also found that Chauke retrieved and handed a firearm to Madzibaba Gathry, which was allegedly used to threaten the complainant’s mother and her children.
“Under normal circumstances, no woman would allow her husband to sleep with another woman.
“As a couple, they knew why they did it,” the magistrate said.
In acquitting the complainant’s mother, Magistrate Chivasa held that the legal requirements for the defence of compulsion had been satisfied.
The magistrate found that the woman, who is illiterate and had sought help for her two mentally-challenged children, genuinely believed that the threats to kill her were imminent after a firearm was pointed at her.
The court accepted that she had resisted throughout the ordeal but eventually yielded after being threatened with death and believing there was no reasonable opportunity to escape or resist.
“It was an unfortunate woman who was faced with all these problems,” Magistrate Chivasa said, adding that she had become “clay in the hands of the potter” because of her desperation to find healing for her children.
Prosecutor Tracy Mundanga represented the State.
