On the 12^th of January 2024, in a move welcomed by many, the President gazetted statutory instrument 2024-002 under the Presidential Powers (Temporary measures) (criminal Law protection of Children and young persons) Regulations, 2024. 

Legal background to this law

The supreme law of the land, that is the Constitution of Zimbabwe Amendment No. 20 of 2013 in section 81 (1) defines a child as every boy or girl under the age of eighteen years of age and section 78 essentially ousts children from having marriage rights because only people above the age of eighteen years have a right to found a family.  Contrary to this, Section 61 of the Criminal Law (Codification Reform) Act creates a category of children (those between 16 and 18 years of age) in relation to sexual offences, who do not enjoy the same protection as afforded to all children as intended by Section 81 of the Constitution of Zimbabwe.

This prompted the Constitutional case of Kawenda v Minister of Justice, Legal and Parliamentary Affairs & 2 Ors CCZ 3/22  to challenge the constitutionality of this provision and raise the age of consent for sexual activities from 16 to 18 and to create uniformity of the law with the Constitution. 

Part III of Chapter V of the Criminal Law Code created several crimes which involve sexual activities with young persons (previously defined in the Code as boys and girls under the age of 16 years):

Section 70 made it a crime for anyone, whatever their age, to have extra-marital sexual intercourse in Zimbabwe with a young person or to commit indecent acts with a young person.

Section 71 made the crime extra-territorial, declaring it to be a crime for a citizen or resident of Zimbabwe, whatever their age, to have extra-marital sexual intercourse or to commit indecent acts with a young person outside Zimbabwe.

Under Section 76 it was a crime for persons in control of premises to permit anyone to have extra-marital sexual intercourse or to commit indecent acts with a young person in those premises.

Section 83, which made it a crime to procure anyone for the purpose of unlawful sexual activities, prescribes a higher sentence if the person procured is a young person.

Section 86 made it a crime for the owner of a place to induce or allow young persons to be in the place for the purpose of engaging in unlawful sexual activities.

All these sections protected children under the age of 16 but they did nothing for youth between the ages of 16 and 18.  These were treated as adults by the Code whereas, according to section 81(1) of the Constitution, they are children with the right to be protected from sexual exploitation.

What you need to know about the new law

Section 3 of the Regulations amends section 61 (“Interpretation in Part III of Chapter V”)(1) of the Criminal Law Code  by repealing the definition of “young person” and substituting  it with— ““young person” means a boy or girl under the age of eighteen years.”

Section 4 of the Regulations further repeals section 70 (“Sexual intercourse or performing indecent acts with young persons”) of the Criminal Law Code and the following is substituted—

 “Sexual intercourse or performing indecent acts with young persons (1) Subject to this section, any person who— (a) has extra-marital sexual intercourse with a young person; or (b) commits upon a young person any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or (c) solicits or entices a young person to have extra-marital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level 12 or imprisonment for a period not exceeding ten years or both.

The implications

While the age of consent for sexual relations was previously set at 16 years old, the new law raises the age of consent to 18 years old. Further, this section bridges the gap that previously existed at law where the Criminal code defined a young person as someone below the age of 16 while the Constitution defined a young person as someone below the age of 18 years.

The enactment was thus promulgated as a means to address inconsistency between the Constitution and the Criminal Code ultimately protecting ALL children from sexual exploitation.

This amendment of law has a ripple effect on sections 70(sexual intercourse or performing indecent acts with young persons), 73(sodomy), 75(sexual intercourse within a prohibited degree of a relationship), 76(complicity in sexual crimes), 78(deliberate infection of another with a sexually transmitted disease) , 83(Procuring) and 86(Permitting young person to resort to place for purpose of engaging in unlawful sexual conduct) of the Criminal Code to extend the protection of the law for young persons from sexual violence from the age of below 16 to below 18 and to criminalize an adult to have any sort of sexual activity with a minor.

Double edged sword

 The Regulations also inserted a clause in section 4 which protects young persons who have sexual intercourse with each other if the age difference between them is no more than 3 years, from prosecution, unless the Prosecutor-General, after considering a report by a probation officer, issued in terms of the Children’s Act [Chapter 05:06], authorises otherwise. This clause provides that:

“Where sexual intercourse or an indecent act takes place between— (a) young persons between whom the difference in age is not more than three years; or (b) a young person and an adult who is not more than three years older than the young person; neither of them shall be charged with sexual intercourse or performing an indecent act with a young person unless the Prosecutor-General, after considering a report by a probation officer appointed in terms of the Children’s Act [Chapter 5:06], has authorised the charge.”

The effect of this provision is that it sanitizes the sexual relations of minors amongst themselves and does not criminalize two young persons having sexual intercourse or is an indecent act, as long they are no more than three years apart. The rationale for this law is that it is common for young persons to enter into romantic relationships and occasionally indulge in sexual activities or to experiment. In these circumstances, neither party would have the legal capacity to have consent to sexual intercourse and to be complicit in the crime of sexual intercourse with a young person. However, the exception to this is where the Prosecutor-General, after considering a report by a probation officer issued in terms of the Children’s Act, decides to charge either one of the young persons with the crime of sexual intercourse or performing an indecent act with a young person.

Conclusion

To conclude, the S.I 2 of 2024 harmonizes the criminal code with the Constitution of Zimbabwe. This law has been hailed for its efforts to protect all young persons and to deter sexual predators from pursuing minors or procuring them for sexual activities.

A missed opportunity to address drug and substance abuse in Zimbabwe by Lincoln Majogo

The ongoing social media hysteria surrounding the Dominican Convent drug saga has set social media ablaze with mixed emotions and reactions from the public. For context, Dominican Convent High School, an elite school in Harare recently expelled 8 female students who were found guilty of contravening the school’s drug policy during an Upper Six leadership camp held in Nyanga this month.

Some have also used this incident to publicly demand the government to legalize the use of recreational drugs. What is clear, however, is that stakeholders have been playing the blame game with various analysts blaming the government for ineffective policies in curbing rampant drug abuse, whilst others blame parents for not doing as much in protecting children from drug and substance abuse. We must appreciate that the drug and substance predicament is complex. Equally this incident should have been the moral authority to leverage a multi-sectoral approach that brings various players to the table eg government, CSOs, parents, church leaders, political parties, etc to discuss ways to effectively address the elephant in the room. Sadly, however, the incident has simply brought to the surface inherent biases, stigmas, and the public misperception of drug and substance abuse which impede a holistic and transparent discussion on the elephant in the room.

Drug and substance abuse has been known to be a national predicament and President Mnangagwa himself has acknowledged this. However, it was the “ghetto” or the impoverished communities that received the media limelight of drug and substance abuse with many citing economic hardships as the main reason for drug consumption. Sadly, the thinking is shortsighted because people take drugs for different reasons be it medicinal purposes, relieving pain and distress, ‘boosting IQ’, having fun, etc. I am tempted to confess that when I was in High School, there was a belief that smoking weed boosted one’s IQ thus increasing chances to pass an exam. The point is people take drugs for different reasons across all classes.

What simply aggravated social media hysteria in this incident is the “gender and class” card. ‘She’s female and she comes from a rich family, she must really be a spoilt kid’ so the thinking goes. Unfortunately, the same students who are victims of drug abuse have been turned into villains with some public figures calling them drug addicts. The gender and class card misses the point because instead of pushing for a holistic approach that is inclusive of all persons regardless of gender and wealth status, it is alienating key stakeholders that can help address the issue.

I mean who better has the moral imperative to source funding for constructing public recreational centers than a parent of a child that has fallen victim to drug abuse? And what time is best to play the moral game (or even guilt & shame!) in generating more will from the well-connected circles of society than an incident that publicly implicates your child in a drug abuse saga? There is no doubt that most of these elite parents’ proximity to power makes them a better bet to lobby for more political will to curb drug abuse and help in soliciting funding to invest in the necessary infrastructure that addresses the problem.

But alas, the condemnatory language has simply put most in a defensive mode and it will not be surprising that most parents will take steps to assist their students which leaves the ordinary public in the exact same position that there were in before the incident. In short, this is a classical example of a missed opportunity that should have been a golden moment to invite especially the well-connected circles of society to the negotiating table to tackle drugs and substance abuse in the nation.

Lincoln Majogo is a registered legal practitioner, notary public, and conveyancer working with Mhishi Nkomo Legal Practice. He writes in his personal capacity. His contact details are +263718832210//[email protected].

I was thinking about how to begin this piece when a specific parallel came to mind. The nature of Memory Machaya’s story, in all its tragedy, and the attention it has brought to Zimbabwe’s Child marriage laws, seems to closely mimic that of George Floyd. In many instances, death is only that, death. But in a few, the death of an individual marks the beginning to chitter chatter that ultimately aims at justice.

Divine powers chose Memory Machaya to be the sacrifice, the catalyst so to speak, to, ironically live in her death by telling the story of the horrendous religious practice that has subjected Zimbabwean children to psychological, social, mental, emotional, sexual, physical and moral harm.

There have been many questions left unanswered, tears that for many will fall without end. In all of this, the question that should aim at an answer is “where do we go from here?” How do we resolve a matter that deals with constitutional intersections. We know that human rights are in no way absolute. We know that several instances show that freedom of religion, like most rights and freedoms, are limited where it is reasonable, justifiable , and when it is in the interests of an open and democratic regime that promotes human dignity. So again, where do we go from here?

The legislature’s role in society is an intriguing one. Members of Parliament (notably comprised of none other than human beings), come together to instigate a process that can ultimately change the course of social justice in a specific aspect. In Zimbabwe, the legislature currently has a Bill on the ropes. If passed, this law could criminalize marriage between adults and minors (individuals below the age of 18). Sounds simple doesn’t it? A sensible resolve to a senseless problem. We know however, that nothing in life is ever simple.

Without getting into too much of the legal, Zimbabwe has two main Acts of Parliament that govern marriage, The Marriage Act and the Customary Marriage Act. In those Acts alone, the intersection of rights is already notable. Several marriage compounds agreeable to customary unions would not be so for civil. Polygamy stands at the customary side, and it is polygamy that is recognized and practiced by the Apostolic Faith responsible for several child marriages. The faith promotes a custom that requires or permits a man to take several wives at a young age, by young I mean as young as 10 years old. Where do we go from here?

The chitter chatter has led to nationwide condemnation of the Child marriage and general religious practices that led to the untimely and painful death of Memory Machaya. The United Nations in Zimbabwe has condemned Child Marriages and the Zimbabwe Republic Police has undertaken to investigate the matter. Meanwhile, the court of Public Opinion has spoken. It’s voice has been loud, clear and concise- child marriages must unequivocally be put to an end by way of the law.

This is only the beginning of what will be a very long journey, of seeing where we will go- from here.