The Sunday Mail
Theseus Shambare
MEMORY CHIBAGE (name changed) will forever rue the day she travelled from Chipinge to Harare to take up a job as a tuckshop attendant last year.
Determined to ease her ailing and disabled mother’s misery, Chibage, who was 17 years old then, desperately needed the job and wanted money to buy food and medicines for her mother.
Instead of becoming a breadwinner and her mother’s pride, she ended up in a shelter for abused girls.
The 18-year-old chronicled how life turned out for the worst for her.
“I was employed at a tuckshop and at first, everything was fine. After two months, the tuckshop owner, who is older than my father, proposed love to me. I initially refused but he harassed and threatened to fire me,” she narrated.
“I ended up giving in to his demands since I desperately wanted the job.”
When the tuckshop owner discovered the then minor was pregnant, he fired her.
Chibage struggled to get legal recourse due to several challenges pertaining to laws on sexual consent.
Eventually, she ended up at a shelter for abused girls, where she received both material and emotional support.
Seventeen-year-old Mavis (full name withheld), who also ended up at the same shelter, narrated how she was married off to a polygamous traditional healer last year at the age of 16.
After being sexually abused and beaten, she ran away and briefly lived on the streets of Harare.
She was then rescued by a non-governmental organisation, Shamwari Yemwanasikana, and offered both shelter and other social support services.
Again, the people who forced her into the unenviable situation did not have their day in court for one reason or the other.
A parent whose child was sexually abused chronicled the agony that she went through as she tried to bring to book her child’s abuser.
“The individual who abused my child is a man of means, who can afford the best lawyers. I was forced to attend court sessions almost every week and this took a financial and emotional toll on me.
“In the end, the abuser was acquitted since the lawyers successfully argued that he was being charged with a non-existent law,” said the parent, who requested anonymity.
Several sex crime perpetrators have in the past been getting off the hook.
However, the Government has swiftly moved in to address the problem.
Parliament is set to debate the Criminal Law (Codification and Reform) (Protection of Children and Young Persons) Amendment Bill, which raises the age of sexual consent from 16 to 18.
This comes after President Mnangagwa invoked his powers, under the Presidential Powers (Temporary Measures) Act, to gazette Statutory Instrument (SI) 2 of 2024, in compliance with a Constitutional Court ruling that had declared a section of the law that sets sexual consent age at 16 as unconstitutional.
The SI raised the age of consent to sexual relations to 18, consistent with the Constitution, which sets the minimum marriage age at 18.
Zimbabwe is one of the countries in the world that are at the forefront when it comes to enacting laws that protect women and children.
Other nations that have recently made amendments to sex laws include Japan, whose parliament raised the age of sexual consent to 16, from 13. This age limit had remained unchanged for more than a century and was among the world’s lowest.
The revision of the age limit by Japan was part of a revamping of laws related to sex crimes. The bill considers sexual intercourse with someone below the age of 16 as rape.
The local parliamentary debate of the bill comes against a background of a spike in child sexual abuse cases.
Cases
Last month, a 30-year-old Prosper Bhule of Bulawayo was sentenced to 232 years behind bars by the Bulawayo Magistrates’ Court after he was found guilty of 18 counts of rape.
The serial rapist started his escapades in 2018 and continued committing crimes until 2022, when he was arrested.
According to court papers, out of the 18 victims raped by Bhule, 13 are juveniles.
In another case, a 53-year-old Beitbridge man was sentenced to 42 years in jail for raping and impregnating his 13-year-old daughter.
The father, with the help of the daughter’s stepmother, went on to force their victim to abort the pregnancy. The stepmother was also jailed for the crime.
In 2023, a 16-year-old girl from Mathabiswana village in Insuza area, Matabeleland North province, was allegedly turned into a sex slave by her biological father, who allegedly raped her on three separate occasions.
The case is still within the courts.
Nod
Most people believe the Criminal Law (Codification and Reform) (Protection of Children and Young Persons) Amendment Bill is a positive
move towards fighting child sexual abuse.
Mr Garikayi Mhishi, a legal practitioner, said the alignment of the laws was long overdue.
“This is the position that we have been clamouring for all this time. In 2022, Justice Rita Makarau wrote the constitutional court decision, highlighting the inconsistency of the law with the Constitution.
“There was a gap that exposed children to promiscuity and sexual manipulation. I really welcome this development that protects children’s rights,” Mr Mhishi said.
Chief Chundu (born Abel Mbasera), of Hurungwe district in Mashonaland West province, said the Bill, when made into law, will further help combat child sexual abuse.
“I am a girl-child advocate and I am agitated whenever a child sexual abuse case is brought to my court. I will make sure the perpetrator is taken to the relevant courts to face the full wrath of the law,” Chief Chundu said.
Simbarashe Sinamani, a youth president in the Methodist Church in Zimbabwe, also shared his sentiments.
“There has been a discord where the age of consent to sex was 16 and the age of consent to marriage in the Constitution was 18.
“This led to many girls being exploited. The law will protect both the girl child and boy child under the age of 18,” said Sinamani.
According to the United Nations Children’s Educational Fund (UNICEF), an estimated 1,5 million children worldwide are caught in the web of commercial sex exploitation.
Dr Tajudeen Oyewaye, the UNICEF Zimbabwe country representative said:
“UNICEF commends Zimbabwe for having passed legislation that raised the age of consent for sexual relations to 18 years.
“As we applaud the decision taken to prosecute adults who sexually abuse children, UNICEF calls on the Government to also continue to invest in the prevention of sexual abuse of children and to support victims.”
Blame/Guidance
Faith and traditional healers have been accused of fanning child sexual abuse.
Bishop Cuthbert Nyaruvenda, the president of the Zimbabwe National Practitioners Association, urged both traditional and faith healers to observe the dictates of the Bill.
“This law, if passed, will be good to us. What the President did was a noble thing. We all know that before the age of 18 years, a girl will be immature.
“I urge traditional and faith healers to refrain from encouraging their clients to marry off girls. We periodically remind our members to practise in accordance with the law,” he said.
However, some feel laws alone are not enough to end child sexual abuses.
“While we welcome the protection of girls under the age of 18, parents have a role to ensure that children are properly nurtured. I still think even at 18, girls and boys still need parental guidance,” said Jesesi Mungoshi, a veteran actress and producer.
Ms Precious Msindo, the programme director of Springs of Life, an organisation that represents the interests of women and the girl-child, is advocating a holistic approach.
“Laws are the first step in protecting the girl-child. We, however, want to see a collective approach in which the Government and other stakeholders work hand-in- glove in addressing such scenarios like child-headed families.”
“In most instances, the eldest child in such homes ends up engaging in sex work to eke out a living. We need to complement the law by crowding in resources to assist such children by enrolling them in schools and children’s homes.”
Ekenia Chifamba, the founding director of Shamwari Yemwanasikana, an organisation that represents the interests of girls, said there is need to support the victims.
“Victims of child sexual abuse must be given support services such as escorts to hospital, the police and to the courts. There is also need for psycho-social support,” Chifamba said.
In Zimbabwe, the maternal mortality rate is estimated at 363 per 100 000 live births and, according to UNICEF, one-third of the total maternal deaths are among adolescents between the ages of 10 and 19.
What the Bill says . . .
THE Criminal Law (Codification and Reform) (Protection of Children and Young Persons) Amendment Bill, which raises the age of sexual consent from 16 to 18 will confirm amendments made by a Presidential emergency decree that was necessitated by the implementation of the Constitutional Court’s judgment in Kawenda versus Minister of Justice, Legal and Parliamentary Affairs and Others. The President’s intervention was rendered more urgent by a court-ordered release of all offenders convicted of statutory rape.
The Criminal Law (Codification and Reform) Act (commonly called the Criminal Law Code) contains several sections that protect children from sexual exploitation. The sections refer to children as “young persons” — boys and girls under the age of 16 years.
The Constitution, on the other hand, fixes 18 years as the age at which children become adults, so, although the Criminal Law Code protects children under the age of 16, it does not provide protection for children between the ages of 17 and 18. As a result, the Constitutional Court has declared the definition of “young person” in section 61, as well as sections 70, 76, 83 and 86 of the Code, to be unconstitutional and void.
The objective of the Bill is to amend the law in a manner that protects children. Thus, the main purpose of this Bill is to amend the Criminal Law Code by replacing those sections and extending the code’s protection to all children up to the age of 18 years, as required by the Constitution.
The Bill will also amend the Criminal Procedure and Evidence Act to make it possible for children and other witnesses who cannot talk to give evidence in other ways such as through written statements, signs and other augmentative and alternative means of communication.
Clause Three will amend the Criminal Law Code on the definition of “extra-marital sexual intercourse” to make it clear that child marriages are not recognised as valid unions. In this regard, 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 years.
Clause Four 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 section will differ from the existing one in the following ways:
— It will extend the protection provided by the section to cover boys and girls up to the age of 18 years.
— 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 prosecution before they can be charged under the section. Before authorising a prosecution, the Prosecutor-General will have to consider a report from a probation officer but will not be obliged to follow the officer’s advice.
— It will add another provision making it clear that the section does not limit the provisions of other laws, for example, the Children’s Act, which deals with the prosecution of children.
