Some LAWYERS and MPs say they are increasingly worried by what appears to be the trivialisation of child sex abuse by the courts, with the age of consent in Zimbabwe being reduced to only 12 years, although it is 16 under the Constitution. Child sex predators are getting away with community service sentences rather than jail, with magistrates and judges reluctant to pass exemplary punishment.
Back in 2013, when a magistrate sentenced a man who had sex with a 14-year-old girl to an effective 12 months in jail. When the man appealed his sentence, another judge rebuked the magistrate, saying it was “an extremely harsh sentence that was imposed without any plausible justification as it would have the effect of further prejudicing the accused person.”
Disgusted campaigners want law reforms to align legislation with the new Constitution to reaffirm 16 years old as the age of consent and give judges more powers to issue deterrent and harsher sentences. MDC lawmaker Priscilla Misihairabwi-Mushonga said “It’s terrible,” as she surveyed the current sentencing guidelines on sexual offences against children.
Campaigners say families of victims have lost faith in the law, to the extent of making private arrangements with those who rape their children. Back in April 2015, Plumtree magistrate Livard Philemon sentenced a 19-year-old man who impregnated his employer’s Grade 7 daughter (13) to 315 hours of community service. While observing that Conscience Nleya, of Bulilima, had “destroyed the girl’s future”, Philemon still handed out the light sentence.
1 500 children have been raped in the six months: Priscilla said that the Police: “Look at stocktheft, it has a mandatory sentence for each cow or beast stolen, but for a young girl or woman who has had her future violated through rape, there’s no such thing. “What does it mean to us women? It simply shows that cattle have more value than our children. “There’s that comparison that losing a cow is worse than having a woman raped.”
In May 2015, Future Ncube, a 19-year-old Kezi herdsman who impregnated his 12-year-old “lover” was sentenced to perform a mere 210 hours of community service by Gwanda regional magistrate Joseph Mabeza. The magistrate said while passing sentence: “Both of you exhibited immaturity and you were oblivious of the dangers of engaging in sexual intercourse.” Lawyer Alex Magaisa says while the age of consent under the Constitution is 16, in practice it is in fact only 12 years old– and the Zimbabwean courts are playing a major role in lowering the age of consent.
Writing in The Chronicle today, he said: “While it’s often said the age of consent in Zimbabwe is 16 years, it is on analysis, effectively 12 years for girls. The law says a young person is under 16, but it’s only girls under 12 who are actually protected by the presumption that they’re incapable of consenting to sex at that age. “This is too low and exposes young girls to abuse. The average age of consent in most other countries is 16.” When magistrates have tried to lean heavily on paedophiles, they have in some cases bizarrely met resistance from higher courts.
Going back to February 2013, a magistrate jailed Gugulethu Tshuma, a 20-year-old man for an effective year in prison without the option of a fine after he pleaded guilty to abusing a 14-year-old girl. The man appealed and shockingly, Justice Andrew Mutema blasted the magistrate for being delivering too harsh a sentence. The judge, citing earlier cases to backup his point, added: “Her appearance is important because the moral blameworthiness of the man will be less if he wrongly believes, from her appearance, that she is older than she actually is. “Similarly, the girl’s character – whether she be virgin or promiscuous, a flirt or demure – must have a like bearing on whether the accused was knowingly preying on the innocent or merely risking lying with an under age but worldly-wise girl.”
I’m guessing that Muteme doesn’t have a daughter?
Magaisa says the attitude of some magistrates and judges is slowing down the campaign against child abuse. He said: “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.” Reading some of the judgements of magistrates and judges demonstrates an influence by patriarchy which remains dominant in our society.”
Activists have attacked the law for providing refuge for child sex predators. While section 64 and 70 of the Criminal Law (Codification and Reform) Act expressly states that a child under 12 years cannot consent to sex, the law becomes ambiguous on how to treat offenders who target victims between 12 and 16. Effectively, courts are increasingly accepting that 12-year-olds and 13-year-olds are “capable” of giving consent to sex – a notion that does not sit too well with many parents, including the Information Minister Professor Jonathan Moyo who wrote on Twitter last Saturday; “There are no extenuating circumstances in statutory rape (sex with a young person). A child below 16 cannot consent to any sexual act.
“In Zimbabwe, the legal age of consent is 16.” (well, apparently not?)
Simbo, currently a PhD candidate at the University of Zimbabwe’s Faculty of Law, said the categorisation of sexual offences into indecent assault, consented and un-consented sexual intercourse was leaving children at the mercy of child sex predators and paedophiles. “Children are vulnerable, and as things stand twisted men can rape a child and get away with a lesser sentence as magistrates depend on the circumstances. It’s unfortunate rape itself attacks life, but sexual crimes against children can be reduced to the levels of just mere assault. “The sentences are not deterrent and can encourage perpetrators to go on rendering the law ineffective.”
Chiedza Simbo, the former director of the Zimbabwe Women Lawyers Association, told The Chronicle: “The problem we have is that the law is viewing minors differently… we’ve some clauses talking of children under 14 or under 12 years. “We can’t have a Grade 7 pupil consenting to sexual intercourse. We should not even be having debates about whether they are mentally capable or not.”
Misihairabwi-Mushonga says faced with an ineffective justice system, some parents are having to settle matters with sex offenders to the detriment of the victims themselves. “For me, the biggest issue that arises is that sometimes parents are forced to opt for that person to marry their child because they are not sure whether justice would be properly delivered,” said Misihairabwi-Mushonga. Reforming the law is not an urgent national grievance, says Women’s Coalition chairperson Virginia Muwanigwa. “We’ve not finished aligning our laws [with the new constitution] but as far as I’m concerned, the constitution overrides all other laws. It’s unfortunate that our courts are still using the old legislation which has no place in today’s society,” said Muwanigwa. Herald
Meanwhile in LUSAKA (Zambia) a High Court judge has called for national reform to tackle the increasing cases of sexual offences. Mr Justice Chalwe Mchenga said the 15-year maximum sentence introduced by the Penal Code Amendment Act number 15 of 2005 had no no impact on reducing sexual offences. Chalwe said the current maximum jail sentence appeared not to have any effect as evidenced by the increasing number of people being arrested, prosecuted and convicted for sexual offences. “Since it is now apparent that the lengthy sentences that Act number 15 of 2005 introduced have not had the desired effect, isn’t it time for us to have a relook on how we deal with sexual offences and sexual offenders in Zambia?” he said.