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

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Common Law with Mike Murenzvi

Mike Murenzvi

“The good of the people is the greatest law.” ~ Cicero

In an uncharacteristically swift response to public outrage this week, the government has officially corrected the age of sexual consent and criminal liability clauses in the Criminal Law Code.

In 2022, the Constitutional Court struck down sections of the Criminal Law on sexual crimes, hoping that these would be improved to include all children under 18. This ruling followed a case brought by Diana Kawenda and Loveness Mudzuru, former child brides who sought stronger laws to protect children. The court suspended the ruling for 12 months to give the legislature time to draft a better law. However, the 12 months expired in May 2023 before this was done. This left a loophole that allowed sex offenders to go scot-free. The loophole had the effect of making 13 the age of sexual consent.

When responding to an enquiry on this gap that exposed children to sexual exploitation without legal protection or consequence to perpetrators, the Minister of Justice, Ziyambi Ziyambi, had said earlier this week: “We have asked the President to invoke the Presidential Powers Act so that by this weekend it will be gazetted.”

I will admit, I was very sceptical of this response and didn’t think it would happen. I am happy that I was wrong.

On Friday, 12 January 2024, the President gazetted the Presidential Powers (Temporary Measures) (Criminal Laws (Protection of Children and Young Persons)) Regulations, 2024.

While the regulations are currently temporary and have a lifespan of six months, it is expected that the Minister of Justice will gazette a proper Bill to substantively amend the Criminal Law Code well before the expiration date of 11 July 2024.

What do the regulations say?

The first, and biggest, thing the regulations do is to change the definition of “young person” to “a boy or girl under the age of eighteen years.” This automatically raises the age of sexual consent to 18 years.

The second major change is the introduction of a “Romeo and Juliet” clause in section 70. Under this clause, it is acceptable that consensual sexual acts between young persons is limited to a three-year gap in age and also extend to an adult and a young person with the same three-year age gap. There is, however, a proviso that the Prosecutor-General may authorise prosecution after considering a report by a probation officer on the case.

Why a Romeo and Juliet clause?

There is a limit affecting the allowable age difference for children having consensual sex amongst themselves. The age difference must not be more than three years.

As relationships grow, so do the people concerned age. Think of an acceptable high school relationship; the older person turns 18 and is classified as an adult. This amendment has now allowed such a relationship to continue, meaning that a person aged 20 years may have a consensual sexual relationship with a person aged 17 years.

Concerns

My concern is the continued use of the term “extra-marital sexual intercourse” within the framework of Section 70. This has been defined as “sexual intercourse otherwise than between spouses both of whom are of or over the age of eighteen years.”

This implies that a spouse may be under the age of eighteen years. This has been illegal since the promulgation of the Marriages Act [Chapter 5:15] in 2022. This term must be revised to simply say “sexual intercourse” without the “extra-marital”.

The Romeo and Juliet clause will likely be a cause of concern within the conservative sections of society and reactions to it will have to be seen and be attended to in the future substantive law.

Substantive Law

The Presidential Powers regulations have an expiration date of six months. During this time, pressure must be put on Government and Parliament to enact a substantive law that enshrines these protections going forward. We have seen how 20 months passed since the Kawenda judgment without any follow-up and all and sundry being none the wiser. We cannot allow that to happen again.

Public Outrage

It is pleasing to note that there has been a swift reaction to public outrage. However, we should have never got to that point. The law is a living thing and should be treated as such and not be left to chance and whim, especially where such laxities result in the removal of protection for vulnerable members of society.

Edited to clarify provisions under ‘Romeo & Juliet’ provisions

ALSO READ | How shocking negligence has cut Zimbabwe’s age of sexual consent to 13, and left children defenceless

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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.