adminRuth Butaumocho and Tafadzwa Ndhlovu Harare Bureau
CHILD sex abuse legislation must be urgently aligned with the new Constitution so that paedophiles receive deterrent sentences, legal experts have said.
This comes following an observation that the courts were not punishing offenders adequately and as a result unwittingly reducing the age of consent to 12 from 16.
Lawyers and legislators said yesterday that they were getting concerned about what appears to be the trivialisation of child sex abuse by the courts.
Prominent lawyer Chris Mhike said the alignment of certain statutes with the Constitution was long overdue. “The call for the alignment of statutes with the Constitution in Zimbabwe cuts across a variety of critical areas, including the regime of sexual crimes and offences,” he said.
“That particular area of sexual crimes undoubtedly qualifies to be listed under the rubric of priority statutes whose alignment with the Constitution is overdue.”
Mhike said there were discrepancies in Section 64 of the Code (Criminal Law Codification Act) and Section 81 of the Constitution, which needed to be aligned so that they speak to the same issue.
“There’s need for the Code to be aligned to the new Constitution so that there is a relationship between the upper limit for the age describing children as given in both pieces of the law,” he said.
Harare lawyer Tasira Muropa expressed dismay at the practice by courts to give child molesters community service, when the law provides for jail sentences of up to 10 years.
“Cases in which magistrates are giving community service in cases where sex predators should be getting deterrent sentences call for urgent alignment of laws to ensure that children under age are protected,” he said.
Women and Law in Southern Africa Research and Education Trust national coordinator, Slyvia Chirawu, said while the government was working on alignment of the laws, people needed to familiarise themselves with the Constitution.
“It’s not true or correct that the Constitution states that the age of consent is 16 years as is being said in the media. The Constitution states that only a person aged 18 years and above can start a family,” said Chirau.
“The operative section is found in section 70 of the Criminal Law (Codification and Reform) Act. It states that it’s a crime to have extramarital intercourse with a young person, who is defined as a person below the age of 16 years.”
She added that the Code was clear that it shall not be a defence for the accused to state that the person consented, because literally young people cannot consent to anything.
“This defence should be done away with because it gives perpetrators a leeway to get away with crime altogether or to get a lenient sentence, although the Code states that the apparent physical maturity of the young person shall not on its own constitute reasonable cause for the accused to say that he believed that the young person was above 16 years,” she said.
MDC-T Harare West MP Jessie Majome called on the courts to make use of the Constitution in the interim rather than wait for the alignment of the relevant laws.
“We’ve a Constitution crisis which needs urgent attention,” she said.
“The new Constitution repealed that which is referred to as having sex with a minor. According to the new Constitution, there is no longer what is called young person. Young people are now referred to as children. According to Section 81 of the new Constitution, children are those under the age of 18, and nowhere does the Constitution mention people under the age of 16,” she said.
Hon Majome said the judiciary should have long approached the Constitutional Court administratively to have the offending legislation amended.
“Our magistrates are just not reading the Constitution. In fact, they’re the ones who should have approached the Constitutional Court so that this section is amended,” she said.
Online Reporter