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Bill Amendment: Enhanced protection for Children under 18 in sexual offence cases

In the Criminal Laws Amendment Bill, the term “young person” has been replaced with “child” in the section addressing unlawful sexual acts against children to shield them from sexual abuse.

A child is defined as a boy or girl under the age of eighteen, as legislated by the Zimbabwean government, which recently raised the age of consent for sexual relations to 18 years, thereby criminalising sexual relations between adults and children.

This change, announced by the Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi, during last week’s Committee stages of the third order reading of the Criminal Laws Amendment Bill (H. B. 4, 2024) in Parliament, will be reflected in Part 3 of the Criminal Laws Amendment Bill. This part examines Sexual Crimes and Crimes against Morality in Section 61, which is the Interpretation in Part III of Chapter V.

Section 61 specifies the criminal sexual activities perpetrated against children and refers to “unlawful sexual conduct” as any act that constitutes the crime of rape, aggravated indecent assault, indecent assault, sexual intercourse, performing an indecent act with a young person, or sodomy. The justice minister stated that they were updating the bill by replacing the term “young person” with “child,” thus classifying anyone under 18 as a child to protect them from sexual abuse.

Additionally, the minister indicated that the term “extramarital” is removed and replaced with “sexual intercourse.” Ziyambi clarified that sexual intercourse “has nothing to do with marriage” but pertains to “having sexual intercourse” with a child.

“In fact, those young people are not even supposed to be married anyway. So, if that can be noted down so that when we are cleaning up the Bill, it clearly reflects the correct meaning,” said the justice minister, hoping that this change will be captured correctly.

Citing the actual Bill, the justice minister noted that Clause 4 (c) of the Criminal Laws Amendment Bill reads “solicits or entices a young person to have extramarital intercourse,” suggesting the phrase “extramarital intercourse” be removed to read “solicits or entices a young person to have sexual intercourse with him or her.” Ziyambi said, “Then in that particular clause where it makes reference to ‘extramarital intercourse,’ it is removed and substituted with ‘sexual intercourse.’”

The justice minister also stated that they were amending Section 70, which reads “sexual intercourse or performing indecent acts with young persons,” to reflect the spirit of the Constitution by replacing it with “sexual intercourse or performing indecent acts with children between the ages of 12 and 18.”

“We are changing it accordingly. Where it makes reference to ‘a young person,’ we are now saying ‘child’. That is the amendment that I am putting forward as it fully appears in the notice of amendment,” Ziyambi said. He noted that the government aims to protect children under 18 years and that such changes will align with the Child Justice Bill when it is reintroduced.

Legal expert Nqobani Nyathi welcomed the move, suggesting that in the future, the Attorney General’s office should improve its approach to legal drafting.

“Laws must always protect children. The crime must be clearly labeled as crimes against children because the term ‘young person’ is redundant. Why mention ‘extramarital’ when the law permitting child marriage was repealed? These are issues that should be addressed,” he said.

Another legal practitioner, Dr. Vusumuzi Sibanda, concurred that the protection of children against sexual violence and aligning the country’s laws with Zimbabwe’s constitution must always be a priority. “Such measures will protect children, whether girls who bear the brunt of child marriage due to various religious, social, and cultural harmful practices, or boys who are also sexually exploited,” he said.

The Criminal Law (Codification and Reform) Act [Chapter 9:23] (commonly called the Criminal Law Code) contains several sections that protect children from sexual exploitation. The Bill will also amend the Criminal Procedure and Evidence Act to allow children and other witnesses who cannot speak to give evidence in other ways, such as through written statements, signs, and other augmentative and alternative communications.

On May 24, 2022, Zimbabwe’s Constitutional Court (ConCourt) struck down the Criminal Law that set the age of consent to sex at 16 as unconstitutional. This decision followed the ConCourt’s 2016 ruling that Section 78 (1) of the Constitution sets 18 years as the minimum age of marriage and that any law to the contrary was unconstitutional. Previously, the legal age of consent was 16, making it difficult to prosecute individuals who married or sexually abused children under 18.

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