Dissecting love, justice, and weaponisation of the law
Love and justice are the same, for justice is love distributed, nothing else.
Those are the words of Joseph Fletcher in his book Situation Ethics. In the book, Prof Fletcher grapples with the problem of balancing the extremes of excessive reliance on law and punishment, legalism, and the opposite – antinomianism. Fletcher proposes that justice is served when issues are examined situationally rather than through absolute ethical values and punishments.
Fletcher gives a scenario. If you are placed in a situation where you have to make a decision to kill either one of your children so as to save two, or not kill him and the rest would be killed as a result, what would you do?
This is the dilemma that sometimes faces those who dispense justice. It is not always easy to understand where the point of justice lies for all who come before the law.
A recent report from Zanzibar revealed that a man aged 21 was sentenced to 80 years in jail for abducting and defiling a 15-year-old girl. Since various sentences will be served concurrently, the offender will stay behind bars for at least 30 years.
Whenever I talk to lawyers about similar cases involving young men aged between 18 and 21, I always feel that a great injustice is being done about the sentences they are given. The law requires a mandatory 30-year jail sentence for defilement of minors, and that, in my opinion, is a recipe for disaster. It is important to pass a thought at the fate of those on the receiving end of these draconian punishments, however unpopular that may be.
A few years ago, we had a programme at a certain university where a young woman in her early 20s narrated how she was impregnated at 17. Her father was adamant on taking action, but she thwarted his efforts by denying that the pregnancy her boyfriend’s. This permanently destroyed her relationship with her father, but she never gave her man up (even when they had broken up.)
Being under underage isn’t synonymous with lacking agency. Many girls who are 15 and above are well aware of what sex is, and its associated dynamics. In fact, underage sex is extremely common in Tanzania. One survey showed that 36 percent of girls between 20 and 24 were married before the age of 18. Another showed that 27 percent of girls between 15 to 19 years of age have babies. It is wrong to assume that all of these girls are passive actors in their sex lives.
I think the punishment for statutory rape should consider not only the age of consent, but also the degree of consent. It is universally known that the age of consent is chosen arbitrarily, but examining contexts may lead to more pragmatic decisions. Luring a 16-year-old into a sexual relationship may be wrong, but it is more wrong – stretching semantics here – to sexually abuse infants and prepubescent children. Thus, punishing both offences with the same sentence is ludicrous.
John Grisham’s legal thriller, The Chamber, highlights the plight of a man by the name Sam Cayhall, who was on death row. Sam was involved in a heinous crime, and was deservedly convicted, but he himself didn’t pull the trigger as the jury had assumed. Sam’s whole upbringing predisposed him to committing the crime he did, thus highlighting the question of degree of responsibility and suitability of the maximum penalty considering the circumstances.
I think that the punishments should consider the weight of responsibility, the degree of malice, so to speak. A 19-year-old boy who seduces a 16-year-old girl cannot be as malicious as a 50-year-old man who defiles a toddler. One is a vicious rapist who is very dangerous to society, and the other is an immature young man who finds himself on the wrong side of the law.
In essence, I am saying that sentences should be situational. The penal code should highlight different contexts and matching punishments that magistrates will apply as needed.
The law is an instrument of justice, and should not be weaponised. The last thing one wishes is to create laws which are irrational, completely detached from a given society’s culture and development realities. That’s why you can’t move from allowing 16-year-old girls to be legally married to prescribing 30-year sentences for more or less the same act. It doesn’t make sense.
To conclude, lest I am misunderstood, I am not suggesting that it is okay for grown men to prey on underage girls, and I am not suggesting that nothing should be done to the offenders. The intention is to highlight the absurdity of the punishment that the law imposes on some of the offenders, especially those who were minors themselves a few years earlier. We are sacrificing these young men so that we may feel good about our activism.
The basis of law ought to be logic at its most brilliant. At 21, many of our youths have hardly learnt what it means to be adults. They have had very poor education, they are unemployed, and are largely still dependent on their parents. The law need to consider their circumstances. If you slap them with 30-year sentences for giving in to their unbridled passions, what punishments will you give to organised criminal lords, armed robbers, and serial killers?
