Controversy over law of consent

IN April this year a 19-year-old Livard Philemon from Plumtree was sentenced to 315 hours of community service for impregnating his employers’ 13-year-old daughter, who was in Grade Seven.

Wongai Zhangazha

The following month, a herdsman from Kezi, Future Ncube (19), who impregnated his 12 year-old girlfriend was sentenced to perform 210 hours of community service by a Gwanda magistrate.

These young girls are microcosmic of a worrying trend where more and more minors are entering motherhood when they themselves are still just children in need of parental care.

None other than Cisse Mariama Mahomed, the Africa Union coordinator of the African Committee of Experts on the Rights and Welfare of the Child, expressed concern Zimbabwe is among Africa’s leading countries in child marriages during her visit to Harare in March to launch a campaign against child marriages.

Her concerns are shared by the majority of Zimbabweans who have recently been speaking out against such marriages, calling upon the authorities to act against the trend and plug the loopholes allowing men, especially those who seduced girls between 12 and 14, to get off lightly.

There is general consensus the laws in Zimbabwe have failed to protect children from sexual abuse with the courts, when sentencing those guilty of sex with minors, seeming to accept that 12 and13-year-olds, are capable of giving consent to sex.

Prosecutor-General Johannes Tomana torched a storm several weeks ago when, according to state media reports, in an interview said 12-year-old girls were capable of consenting to sex and making decisions on marriage.

Tomana’s responses were taken to imply that where the child is a school drop-out, for instance, the man would be doing the minor a favour by marrying and providing for her – charges he has since denied, saying he was misquoted for political ends. That has not prevented a severe backlash with many, including First Lady Grace Mugabe, demanding Tomana’s sacking.

A recent study by the Research and Advocacy Unit (Rau), an independent non-governmental organisation whose mission is to provide high-quality research for the purposes of relevant and current policy change, examined the statistics of sexual offences at the Harare Magistrate’s Court.

“From a complete set of 754 records from the Magistrate’s Court, a complete set of data was obtained for 623 records: this was 54 from 2013, 399 from 2014, and 176 from 2015,” reads the report.

“It is evident that between 2013 and 2015, magistrates handed out sentences to sex offenders over 18 years much stiffer sentences than to those that were under 18 years. Adult offenders (over 18 years) got sentences of 14 years on average, whilst those under 18 years got sentences of six years on average, and very young offenders received corporal punishment, counselling and probation,” reads part of the report.

As a result of the child marriage furore, rights activists and stakeholders that include the layman have been debating how a child should be defined under the law, and whether the laws in Zimbabwe protect children against all forms of abuse — not only when it comes to sex and marriage, but also labour.

The Childrens’ Act defines a child as “a person under the age of 16 years” and a young person as “a person who has attained the age of 16 years but has not attained the age of 18 years”.

The Marriage Act, which governs civil marriage states that the minimum age of marriage is 16 for girls and 18 for boys, effectively allowing girls to marry earlier.

The Customary Marriages Act, [Chapter 5:07] (Act 23/2004) which governs customary marriages at law, does not set a limit to the minimum age at which individuals can marry.

And according to the Criminal Law (Codification and Reform) Act 9:23 section 64 (2): “A person accused of engaging in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person above the age of 12 years but of or below the age of 14 years shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person or sodomy, unless there is evidence that the young person: (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct.”

These clauses are a violation of the Constitution of Zimbabwe, which defines a child as “every boy and girl under the age of 18 years”.

The new constitution in section 19 (1) clearly states that the state must adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount.

In section 19 (2), the state has undertaken to ensure that children enjoy family or parental care, or appropriate care when removed from the family environment, have shelter and basic nutrition, health care and social services, are protected from maltreatment, neglect or any form of abuse and have access to appropriate education and training.

Human rights lawyers have criticised Zimbabwean laws for allegedly affording cattle more protection than minor children, saying cattle rustlers get stiffer sentences than those who sexually abuse girls. They are calling for an amendment of laws and consistency in the age of consent to sexual intercourse.

On his blog lawyer and academic Alex Magaisa said the law of consent was inadequate in that it does not sufficiently protect young girls above the age of 12 and below 14.

He said the limitations were exacerbated by outdated, patriarchal and retrogressive attitudes exhibited by the conduct in previous cases of the police, prosecutors, magistrates and judges.

“What all this amounts to is that while it is often said the age of consent in Zimbabwe is 16 years, it is on analysis effectively 12 years for girls in respect of the higher offence of rape,” Magaisa said.

“The law says a young person is a person who is under 16, but it’s only girls under 12 who are protected by the irrefutable presumption that they are incapable of consenting to sex.This is too low and exposes young girls to abuse. The average age of consent in most other countries is 16.

“The law does not provide sufficient protection for young girls, but worse, the attitude of the judges and magistrates to sexual offences leaves a lot to be desired. A reading of some of the judgments and decisions of magistrates demonstrates very conservative views which are influenced by patriarchy which remains dominant in our society.”

“The irony is that Zimbabwean laws protect cattle against theft better than they protect young girls against sexual abuse. Laws against theft of cattle provide for a mandatory prison sentence, yet a man who sexually abuses a child can get away with a fine or community service. It’s a national scandal.”

Harare lawyer Obert Gutu said it was not right that a girl of 12 years of age can consent to sex.

Gutu said: “There is need to clarify that sexual intercourse with any girl who is below the age of legal consent is a criminal offence, without exception. The appropriate legislation should be amended to remove all elements of ambiguity. At the end of the day, the law should be reasonable, fair and easy to interpret even by non-lawyers.”

“The law should specifically state that any girl who is under the age of 16 is legally incapable of giving consent to any form of sexual intercourse.”

It is likely that the heated debate over the loopholes in the laws meant to protect children will be plugged to ensure consistency, particularly in relations to the age of consent of sex.