SHE was seven. She looked a bit confused and misplaced in the court environment. She only brightened up whenever one of the teachers she came with spoke to her. Call her Ruva. She had a developmental disability. In the classroom she communicated well enough; in short bursts, in gestures, in a private vocabulary her two teachers had spent three years learning. It was to those teachers that she first disclosed what an adult neighbour had been doing to her, over months and it was the teachers who walked her to the police station.
In the courtroom she said almost nothing. The prosecutor’s questions were long and formal. Defence counsel’s were longer and confusing. The intermediary did her best to break everything down for her. Ruva looked at her hands. When she did answer, she used the words and signs her teachers understood and no one else in the room did. The teachers could have told the court, sentence by sentence, exactly what she had told them and what she was trying to say from the witness stand. This was 2017 and they were not permitted to. The record shows a child who “failed to testify satisfactorily” and sadly, an acquittal that everybody in the building knew was not the same thing as innocence.
Anyone who has prosecuted or presided over sexual offence matters in Zimbabwe has a version of this file. The question it forces is uncomfortable: should such evidence really not be admitted?
What the law said before 2024
Part XIV(A) of the Criminal Procedure and Evidence Act [Chapter 9:07] was, in its time, a genuine reform. It created the vulnerable witness framework that underpinned our victim-friendly courts: a child could testify from a separate room, in camera, through an intermediary, with a support person present. The animating idea was protection from stress and
intimidation.
But the old section 319B rested on an unexamined assumption: that the witness could speak and would speak, if only she were made comfortable enough. It had nothing to say about the child who cannot give evidence orally at all, the non-verbal child, the child with an intellectual or developmental disability, the deaf child who signs in a home dialect no court interpreter has ever seen, the child whose only reliable channel of communication runs through one or two trusted adults.
For that child the rest of the law of evidence closed in quickly. What she told her teachers was, as a general rule, hearsay: inadmissible to prove the truth. The narrow first-report doctrine allowed the disclosure only to show that the complainant had been consistent, never as proof that the offence occurred. The competency inquiry under section 246 asked whether the child understood the duty to tell the truth and it asked this before anyone considered how she might be helped to communicate at all, so that difficulty in expressing an account was routinely mistaken for inability to give one. And the cautionary approach that lingers around child witnesses meant that whatever fragments she did manage were then discounted.
What the amendment did
The 2024 Act rewrites the framework.
The category itself is renamed, no longer just the “vulnerable witness” but the “vulnerable or incapacitated witness”. Section 319B gains a new subsection (2): where it appears that a person is unable for any reason to give evidence orally, the court may, on its own motion, not only on application, permit that person to give evidence in any other manner that makes it intelligible, expressly including writing, signs and other augmentative and alternative communication. The most consequential change is tucked in section 319F. When appointing an intermediary for a witness who cannot give evidence orally, the court may appoint any person who can communicate with the witness and interpret her writing, signs, sounds or other forms of communication; if that person is not a State interpreter, she takes the interpreter’s oath first. Ruva’s teacher qualifies.
Note precisely what this does and does not do. It does not make the teacher’s out-of-court account admissible as a substitute for the child’s testimony. What it does is remove the barrier between the child and the court. The child still testifies. She is still cross-examined. The teacher functions as a channel, not as a witness. The evidence that reaches the record is Ruva’s.
What still needs to change
The amendment removes a barrier; it does not re-build the road. There are potholes still. Section 319B tells a court what it may do, not how. Judicial officers must know the provision exists and understand its breadth. Prosecutors and defence counsel must identify a communication barrier before the witness enters the box, not midway through cross-examination when the child is already distressed. Courts need communication boards, assistive devices, sign-language services and accessible facilities. Intermediaries drawn from outside the State service need training in both communication and the limits of their role, because the difference between assisting a child to give evidence and assisting her with what evidence to give is the difference between a fair trial and a wrongful conviction.
Three older obstacles also survive untouched. The competency inquiry still runs before any assessment of how the child might communicate. The cautionary approach to child witnesses persists in practice. And a child’s disclosure to a trusted adult remains hearsay.
Conclusion
Ruva is a young woman now. Her case cannot be reopened. But the next child who arrives at court with a teacher on either side of her has, for the first time, a law that assumes she has something to say. That alone is progress towards accessible justice, which we applaud. More, however, needs to be done to make children like Ruva experience a justice system that fully accommodates them.
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