Common Law | Protection of Children: When bad drafting meets negligence

(Photo by Tafadzwa Ufumeli/Getty)

By Mike Murenzvi

“Laws are like sausages, it is better not to see them being made.” ~ Otto von Bismarck

On Monday, 11 June 2024, the National Assembly went through the process of reviewing the Criminal Law Amendment (Protection of Children and Young Persons) Bill. This is a greatly anticipated law that aligns the legal ages of marriage and sexual consent to 18 years. After approving the Bill and further amendments proposed by the Minister of Justice, Legal and Parliamentary Affairs, it is now with the Parliamentary Legal Committee (PLC) to review the new changes to make sure they are constitutional.

The Bill came as a result of the Constitutional Court striking down the existing provisions of the Criminal Law Code as unconstitutional insofar as they set the age of sexual consent at 16 years. A year after the judgment, the offending laws were effectively struck from the statutes. Now, Parliament is staring down another clock as the temporary Presidential measures to reinstate the laws are set to expire on 10 July 2024.

Assuming the PLC returns a non-adverse report in the sitting week starting Tuesday 18 June 2024, the Bill will likely be presented in the Senate when it next sits on 25 June 2024.

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

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

Amendments not well thought out

Several amendments to the initial Bill were proposed by the Minister of Justice but a few of them appear to have been made hastily, and without due regard to existing provisions in the Criminal Law Code.

1. Repeal of “extra-marital” from the definition of “extra-marital sexual intercourse”.

There is already a full definition of the term “sexual intercourse” in the Code. That makes this change redundant, and the entire definition of extra-marital sexual intercourse should have been repealed.

2. Section 70 Sexual intercourse or performing indecent acts with children between the ages of 12 and 18

In correcting the issue of the age of consent, the amendment went and removed a very important proviso that graduates the ages of children pertaining to the ability to consent to sexual acts. The old Section 70 clearly specified that any sexual intercourse with a child under the age of 12 years was rape or aggravated indecent assault (if the victim was male), and where the victim was over the age of 12 but under 18 and the victim had not consented, the charge would also be that of rape or aggravated indecent assault.

The removal of these safeguards would mean that any sexual intercourse by an adult or person more than three years older than the victim would be considered as sexual intercourse or performing indecent acts with a child. Under these circumstances, a charge of rape will not stand.

A person found guilty of sexual intercourse of performing indecent acts with a child, as the case may be, may be liable to a fine not exceeding level twelve (USD 3,000 or ZiG equivalent) or imprisonment for a period not exceeding ten years or both.

3. Introduction of section 70A Deliberate infection of a child with a sexually-transmitted disease

This section duplicates the existing section 78 “Deliberate infection of another with a sexually-transmitted disease”. The only differences are that it is specifies “child” and includes HIV in the list of STIs. Section 78 is all encompassing and covers both adults and children alike, any changes should rather be made to section 78 and not by creating a new section 70A.

4. Removal of upper age limit on Sodomy proviso

Sodomy is a charge based on consensual sexual contact between two males. The provisos in the section speak to the consent aspect when one of the parties is a child. If the child is under the age of twelve years, the charge is aggravated indecent assault (where penetration is involved) or indecent assault in any other case.

Where the child is aged 12 or above but under the age of 16, and they did not consent, the charge is aggravated indecent assault or indecent assault, as the case may be.

Where the child is aged 12 or above but under the age of 16, and they did consent, the charge is performing an indecent act with a young person.

The amendment made by the Minister removes a non-existent upper limit of 18 years, instead of replacing the existing 16 years with 18 years as was suggested in the Portfolio Committee’s report on the Bill. In effect, no amendment was made.

5. Repeal of Section 78 (Deliberate infection of another with a sexually-transmitted disease)

The Minister moved for this entire section to be repealed and this change was fully adopted. This was negligent as this has shifted the protection offered by this now repealed section from all persons to children only.

Bad drafting meets negligence

All these amendments made by the Minister and approved by the National Assembly made a largely acceptable Bill that needed minor changes to one that is totally unacceptable and negates much of the work it sought to achieve.

The amendments were sloppily done and show that the National Assembly did not take the time and care to go through them holistically, that is, reading them in the full context of the existing Criminal Law Code. While there was spirited debate on issues such as the complicity of establishment owners in the procuring of children for unlawful sexual conduct, the same care was not taken for most of the Bill.

Now it’s up to the Senate to carefully consider these amendments and push for corrective amendments. Hopefully, this commentary will reach the Minister and Senate members before the Bill is presented to them and they act responsibly. History, sadly, does not support such an outcome.

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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.