Sex offenders cornered: Paedophiles, child traffickers put on notice

PRESIDENT Mnangagwa has invoked the Presidential Powers Act to amend the Criminal Law (Codification and Reform) Act, which will see paedophiles serving up to 10 years in prison for having sex with persons below 18 years including those who traffick them to foreign countries to engage in sex work.

The issue of the age of consent has generated a lot of debate in the country in light of an increase in pregnancies involving minors and the prevalence of sexual abuse cases.

According to the Presidential Powers (Temporary Measures) (Criminal Laws (Protection of Children and Young Persons)) Regulations, 2024 contained in Statutory Instrument 2 of 2024, the age threshold within which one can make valid sexual consent was raised from 16 to 18 years.

While the Constitution defines children as those below the age of 18, the Criminal Law (Codification and Reform) Act before its amendment, defined a young person as one who is below 16, thereby creating a gap in the law, which would possibly expose children above 16 to sexual exploitation.

Last year in November, Cabinet approved principles to the Criminal Law (Codification and Reform) Amendment Bill, criminalising sexual activity with a child below the age of 18 as the Government seeks to harmonise laws relating to the age of sexual consent.

The gazetting of the Statutory Instrument 2 of 2024 means the amendments, which were endorsed by Cabinet last year would no longer go to Parliament for debate.

The Presidential Powers (Temporary Measures) Act (Chapter 10:20) empowers the President to make regulations dealing with situations that have arisen or are likely to arise and that require to be dealt with as a matter of urgency and to provide for matters connected therewith or incidental thereto.

Section 61 of the Criminal Law Code is amended in (a) the definition of “extra-marital sexual intercourse” by the insertion after “spouses” of “both of whom are of or over the age of 18 years”; (b) by the repeal of the definition of “young person” and the substitution of “young person” means a boy or girl under the age of 18.

“Section 70 (sexual intercourse or performing indecent acts with young persons) of the Criminal Law Code is repealed and the following is substituted with ‘sexual intercourse or performing indecent acts with young persons’,” read the Statutory Instrument 2 of 2024.

“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 10 years or both.”

According to Statutory Instrument, there shall be no defence to a charge of sexual intercourse or performing an indecent act with a young person to prove that he or she consented to such sexual intercourse or indecent act.

“Where sexual intercourse or an indecent act takes place between — a) young persons between whom the age difference 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,” read the SI.

The Statutory Instrument notes that the competent charge against a person who has sexual intercourse with a female person below the age of 12, shall be rape; or (ii) commits upon a female or male person below the age of 12 any act referred to in section 66(1), shall be aggravated indecent assault.

The S.1. states that any person who — a) being the owner or occupier of any premises, knowingly permits another person on the premises to commit rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act with a young person, sodomy, bestiality or sexual intercourse within a prohibited degree of relationship may be charged with being an accomplice or accessory to the commission of the crime concerned, or with kidnapping or unlawful detention, or both.

Section 78 of the Criminal Law (Codification and Reform) Act, (Deliberate infection of another with a sexually- transmitted disease) has been amended to include HIV, syphilis, gonorrhoea, herpes and all other forms of sexually-transmitted diseases.

Any person who procures any other person — (a) to engage in unlawful sexual conduct with another person or with persons generally, whether inside or outside Zimbabwe; or

(b) to become a prostitute, whether inside or outside Zimbabwe; or (c) to leave Zimbabwe with the intent that the other person may become a prostitute; or (d) to leave his or her usual place of residence, not being a brothel, with the intent that he or she may become an inmate of or frequent a brothel elsewhere; shall be guilty of procuring and liable to a fine not exceeding level 14.

“In a case where the person procured is a young person, imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment. In any other case, imprisonment for a period not exceeding two years, or to both such fine and such imprisonment,” read the S.I.

Permitting young persons to resort to places to engage in unlawful sexual conduct attracts 10 years of imprisonment if it involves a young person under the age of 12 years.

If the young person is over 12 years old, they are liable to a fine not exceeding level 10 or imprisonment for a period not exceeding seven years or both.