Constitutional watchdog Veritas Zimbabwe says it is appalling that the country’s laws have left children unprotected.
According to Veritas Zimbabwe this leaves them vulnerable adding that last year, according to the Minister of Primary and Secondary Education, over 4 500 girls dropped out of school after falling pregnant – and 134 of them were primary school pupils.
“No doubt many of them were impregnated by fellow pupils but at least some of them must have been victims of sexual predation by older men.
“Those victims were not protected by the criminal law as a result of the Government’s inaction following the Constitutional Court’s order.
“Now teenagers are again left unprotected as a result of inaction, this time the Government’s failure to bring remedial legislation into force,” says the watchdog.
The First Abandonment
In May 2022, the Constitutional Court issued a judgment declaring that the Criminal Law Code did not adequately protect children between ages of 16 and 18 from sexual exploitation.
For that reason, the Court said, certain provisions of the Code – the definition of “young person” in section 61 of the Code and sections 70, 76, 83 and 86 – were unconstitutional and void.
The Court however suspended its order for 12 months – until the 23rd May 2023 – to give the Government time to enact a law protecting all children against sexual exploitation.
The Government did nothing to comply with the Court’s order, so on the 24th May 2023 the provisions of the Code became void: they ceased to exist in law.
The result was that there was no longer a law that protected children adequately against sexual exploitation.
To understand what this meant, some explanation may be needed. Under the common law and under the Code, young children are deemed to be incapable of consenting to sexual acts, and the age below which they cannot consent is currently fixed at 12 years.
Hence sexual intercourse with a girl below the age of 12 amounts to rape even if she purported to consent to it, because she is incapable of giving consent.
Similarly, anal sexual intercourse with a boy under the age of 12 is aggravated indecent assault even if he purported to consent. For children above the age of 12 however the law offers no similar protection.
The provisions of the Code which the Constitutional Court declared to be void did protect children up to the age of 16 years, by making it a crime to engage in sexual activity with them even if they consented, but after the 23rd May 2023 those sections no longer existed in law.
After that date the criminal law treated girls and boys over the age of 12 as if they were adults: sexual activity with them was generally not a crime if they consented to it. Sexual predators and paedophiles could operate with virtual impunity.
Government Takes Action
Finally, late in 2023 the Government bestirred itself and took action. With the assistance of Veritas a Bill was drafted – the Criminal Laws Amendment (Protection of Children and Young Persons)– to restore the impugned provisions to the Criminal Law Code, with changes that would make them constitutional.
Because of the urgency of the situation, the President incorporated the Bill’s provisions in a set of regulations under the Presidential Powers (Temporary Measures) Act, which were published on the 12th January this year.
The regulations, which can be accessed on the Veritas website [link], came into operation immediately and provided immediate protection to young persons, but only temporary protection because regulations made in terms of the Presidential Powers (Temporary Measures) Act expire after 180 days. In this case the President’s regulations expired on the 10th July 2024.
Meanwhile the Bill was presented in the National Assembly on the 7th March and began its progress through Parliament. No one opposed the Bill – indeed it was applauded in the National Assembly and the Senate – but its progress was rather leisurely.
It passed its final reading in the Assembly on the 18th June and in the Senate on the 9th July, just one day before the President’s regulations expired.
The Second Abandonment
And there, inexplicably, things stopped. The next stages in the Bill’s progress – Presidential assent and publication in the Gazette as an Act – have not taken place.
Parliament should have sent the Bill to the President for assent immediately it was passed by the Senate, in view of the imminent lapsing of the Presidential regulations, but there has been no public notification that this was done (as required by section 131(5) of the Constitution) so presumably Parliament has not yet sent it.
Whatever the reason for the delay, the result is clear: the President’s regulations have lapsed and Bill has not been brought into force so the criminal law no longer protects children against sexual predation except, as explained above, in cases involving rape where there has been no consent.
Veritas is approaching the Minister of Justice and Counsel to Parliament to rectify this situation without delay.
Conclusion
It is appalling that children should be left unprotected in this way. Last year, according to the Minister of Primary and Secondary Education, over 4 500 girls dropped out of school after falling pregnant – and 134 of them were primary school pupils.
No doubt many of them were impregnated by fellow pupils but at least some of them must have been victims of sexual predation by older men.
Those victims were not protected by the criminal law as a result of the Government’s inaction following the Constitutional Court’s order.
Now teenagers are again left unprotected as a result of inaction, this time the Government’s failure to bring remedial legislation into force.
Zwnews
