COLUMN | Zimbabwe’s legal system dropped the ball on child sex laws. Here’s how it’s now trying to correct its mistakes

(image credit: Cynthia R Matonhodze)

Common Law with Mike Murenzvi

“Our law enforcement must be given every tool available to protect children from predators and parents need to know who is living in their community.” ~ Robin Hayes

The fire was lit by Diana Kawenda in a landmark case in 2020. The dying embers were stoked with the vigour of outrage after a shock ruling that freed Nkosilathi Gumbo in October 2023. In January 2024, the President stepped in to quench it, only temporarily, while buying time for the real firefighter, the Minister of Justice, to bring the cavalry.

This is the story of how the system dropped the ball in a big way, exposing children to sexual exploitation and how it is trying to correct itself.

A Comprehensive Bill

On 1 March 2024, a new bill named the Criminal Laws Amendment (Protection of Children and Young Persons) Bill was gazetted. It is now open for public comment pending public hearings. The Bill was introduced into Parliament on 7 March 2024 and referred to the Parliamentary Legal Committee for a primary constitutional review.

The Bill is the same as the temporary measures issued by the President in January.

The key elements of reinstating the fundamental protections from sexual exploitation while also extending them to children aged sixteen and seventeen who were originally treated as consenting adults, contrary to the Constitution.

(Also Read: OPINION | Presidential Powers have closed child sex law loophole, but permanent legislation is needed urgently)

Now that we have a comprehensive Bill for public comment, we can look at a few specific clauses within that raise some contention, and some that have not been included.

Amendment to Section 70 – Sexual intercourse or performing indecent acts with young persons

A new proviso has been introduced to create an acceptable age gap between young persons engaging in consensual sexual activity. This has been set at three years between the older and younger persons. This age allowance also extends to a person above the age of eighteen who engages in sexual activity with a young person. In so doing, a person aged fifteen years may legally engage in sexual activity with an eighteen-year-old. In the same vein, a seventeen-year-old may engage in sexual activity with a 20-year-old.

This allowance may create a slippery slope because it does not assume that both parties are in high school. However, it should also be looked at in the context of the current age ranges within the Zimbabwe high school system. Many students started school at a later age or had the misfortune of being held back or repeating certain levels to attain better exam grades. A similar exception, albeit for different purposes, applies to the school sporting system that uses an under-20 age range.

Furthermore, the higher education system generally starts enrolling students from the age of sixteen years for technical and vocational courses. That environment puts young persons and adults in one melting pot that may expose the young persons to sexual activity well before their time, hence legal safeguards must be in place to help keep that in check.

A further proviso has been put in place in respect of criminal charges relating to these age limits in that the Prosecutor-General must consider a report by a probation officer who investigates the matter before authorising any prosecution.

A probation officer is a government social worker appointed by the court to make these enquiries and investigations. Their report makes recommendations on the course of action to take against any or both of the parties to the sexual activity.

Previously, the courts had ruled that any consensual sexual activity between young persons aged between thirteen and fifteen years was not a criminal offence and a part of normal human development. This was when the legal age of sexual consent was sixteen years. Now with the extension to consent being eighteen years of age, the acceptable age gap limits have been introduced to protect the youngest from any potential exploitation from their seniors.

Amendment to Section 73 – Sodomy

The crime of sodomy specifically applies to consensual sexual or indecent acts between male persons. This section also goes into detail on what charges apply when such acts are performed between an adult and a child or young person based on age and consent.

This Bill makes two amendments of removing the previous age limit of sixteen years when referring to a young male person but fails to replace it with eighteen years. This changes the entire aspect of the proviso as it stops referring to a young male person and becomes totally about a general male person.

This amendment should be revised to restore the adjusted age limit of eighteen years.

Amendment to Section 78 – Deliberate infection of another with a sexually-transmitted disease

This amendment brings back criminal liability for deliberately infecting someone with HIV. This is particularly contentious because in the period between 2019 and 2022 when the debates and passing of the new Marriages Act were done, there was previously a section 79 in the Criminal Law Code that dealt specifically with the deliberate transmission of HIV and imposed very stiff penalties for that.

Rights groups lobbied very hard, with international support from the UN and other agencies to have that part of the statute struck down. The main reason is that the criminalisation forced people not to get tested and further entrenched the stigma and discrimination suffered by people living with HIV.

In 2018, the former chair of the Parliamentary Portfolio Committee on Health and Childcare, Dr Ruth Labode, said this:

“We all know very well that in Zimbabwe and the world over, we do not have diagnostic equipment which can tell us who gave HIV to the other and at what time. There is an assumption that whoever has manifested the disease first is the one who transmitted the virus. It can be anybody and it could be the other way round. If you are a woman and suddenly you find yourself positive, you will not tell your partner because of this law yet if the law was not there you would tell your partner and go and access ARVs to live happily ever after.”

Zimbabwe was the first African country to criminalise HIV transmission in 2001 and the second, after DRC, to decriminalise it. UNAIDS, the HIV Justice Network and other civil society organisations praised Zimbabwe for the progressive approach to HIV criminalisation. This praise was gladly accepted by the administration at the time.

This specific reversal, albeit with reduced sentencing, constitutes a reneging of the principles and understanding agreed with people living with HIV. The law already provides for specific aggravating circumstances where a sexual crime has occurred, and the perpetrator is HIV positive.

Unlike other STIs covered under section 78 whose progression, maturity, and other attributes can be measured and ascertained medically, the same cannot be said of HIV. This is why this amendment should be removed from the Bill.

Missing Amendments to the Criminal Procedure and Evidence Act

While this Bill makes some changes with respect to increasing the rights of incapacitated witnesses in criminal trial proceedings, it has fallen short of extending the protections of young persons aged between 16 and 17.

In section 2 (Interpretation) and section 191 (Legal representation), a person under the age of eighteen years should be allowed to have their parent or legal guardian act as their legal representative. Currently, this limitation is set at sixteen years.

Section 64 (Women detained for immoral purposes) deals with search warrants for the recovery of women and girls detained for immoral or unlawful sexual activity. Where there is evidence that a girl is being detained for such immoral purposes, a girl under the age of sixteen is said to be detained for immoral purposes whether it is against her will or not. Whereas for a girl aged 16 or 17, it must be against her will or the will of her parent or guardian. Given all the efforts to protect all children equally, the automatic assumption must apply all the way through to those under the age of eighteen. The second proviso that applied should then fall away.

Conclusion

Despite some of the shortcomings highlighted, the Bill must be commended in that it will achieve its primary objective of protecting children and young persons from unlawful sexual activity. The urgency being applied to the matter now is what should have happened back in 2022 when the constitutionality case was decided. While it may be better late than never, let it now be both comprehensive and complete before the expiry of the temporary measures.

ALSO READ | OPINION: Presidential Powers have closed child sex law loophole, but permanent legislation is needed urgently

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Mike Murenzvi writes in his personal capacity and his views are not associated with any organisation he is, or may be, affiliated with