Tinaye Agere
Parliament recently passed the Criminal Law Amendment (Protection of Children and Young Persons) Bill, which seeks to bolster child protection laws in Zimbabwe, ensuring that all minors, up to 18 years, are safeguarded against sexual exploitation and abuse. The Sunday Mail’s TANYARADZWA RUSIKE spoke to Justice, Legal and Parliamentary Affairs Permanent Secretary MRS VIMBAI NYEMBA on the ground breaking Bill.
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What does the Bill entail?
The introduction of the Bill entrenches provisions of Section 81 of the Constitution, which seeks to address the unique needs and the best interest of children, in addition to the rights and freedoms afforded to all citizens in the Bill of Rights.
Section 81(1) the Constitution defines a child as “every boy and girl under the age of eighteen years” and further provides in Section 81(1)(e) for the freedom and protection of children from all forms of sexual exploitation.
The Bill addresses a concerning legal gap that had left a certain category of children without the full protection of the law.
Section 61 of the Criminal Law (Codification Reform) Act, under Part III of Chapter V (Sexual Crimes and Crimes Against Morality), defines a young person as “a boy or girl under the age of sixteen years”.
The implication of Section 61 of the Act is that it creates a category of children (those between 16 and 18 years of age) who do not enjoy the same protection, in relation to sexual offences, as afforded to all children, as intended by Section 81 of the Constitution, which defines every boy and girl below the age of 18 as a child.
As such, the Bill seeks to plug this gap and guarantee all children the full enjoyment of the law and protection of the Constitution.
This position was challenged at the Constitutional Court in the case of Diana Eunice Kawenda vs Minister of Justice, Legal and Parliamentary Affairs; Minister of Health and Child Care; and the Attorney-General of Zimbabwe.
The Bill, thus, is in compliance with and gives effect to the order of the highest court of the land on all constitutional matters.
There are also new provisions to accommodate cases involving children with disability, having unique communication needs and those who rely on a special sign language for communication that is not classified as an official sign language.
The provisions include interpretation of such unique sign language that may aid in adducing evidence in court and not limiting sign language to the official court sign language only as admissible.
Significance
The most significant accomplishment of the Bill will be that it will eliminate predatory and exploitative sexual conduct.
This will be achieved through the introduction of mandatory sentences for individuals convicted of committing sexual offences against children. The law also removes references to “young person” and “extra-marital” in all statutes in relation to sexual offences by incorporating the constitutional definitions of a child and provisions on marriage.
This guarantees the protection of children, who no longer have to fall into two categories of young persons and juveniles, which traditionally has been exposing children to sexual predators, who took advantage of the gap in the law.
Further, the extra-marital references in the criminal code will be deleted as a reflection of the proscription of child marriages, which are no longer sanctionable at law.
Another significant outcome of the Bill is that it confirms Zimbabwe’s commitment to its human rights obligations arising from regional and international treaties such as the United Nations Charter on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child.
These two instruments, among others, form the bedrock of children’s rights in Zimbabwe and have helped shape laws, policies and administrative measures that amplify the protection of children from all forms of harm, including sexual violence.
Protection from sexual predators
The Bill will alter two definitions in Section 61 of the criminal law code.
The amendment of the definition of “extra-marital sexual intercourse” will make it clear that child marriages are not recognised as valid unions; in other words, sexual intercourse between a child and an adult will not be legal, even if they have gone through a form of marriage.
The new definition of “young person” will extend the code’s protection to cover all children, that is, boys and girls under the age of 18.
The Bill will replace Section 70 of the criminal law code, which makes it a crime to have sexual intercourse or engage in other sexual activity with a young person.
The new provision will differ from the existing one in that it will extend the protection provided by the law to cover boys and girls up to the age of 18. It will add a provision stating that if the persons who engage in sexual activity are of a similar age, specifically where the difference in their ages is three years or less, the Prosecutor-General will have to authorise their trial after considering a report from a probation officer, but will not be obliged to follow the latter’s advice.
Further, Part XIVA of the Criminal Procedure and Evidence Act provides for the taking of special measures to enable vulnerable witnesses to give evidence in court without undue emotional distress or fear of intimidation. These provisions will extend cover for children and other persons who cannot give evidence orally in the usual way, be it due to inability to speak or hear or for any other reason, and will allow them to give evidence in writing or through signs or alternative means of communication.
The amendments will permit incapacitated witnesses to give their evidence through intermediary persons who are able interpret or translate what the witnesses are trying to say and will enable courts to appoint individuals such as relatives or friends to sit with the witnesses and provide them with support and comfort.
Intermediaries who are not professional court interpreters will have to take an oath to interpret truthfully what the witnesses are saying.
Online Reporter