The Sunday Mail
About a fortnight ago, Prosecutor-General Mr Johannes Tomana torched a storm after he interpreted the law to mean girls as young as 12-years-old could consent to sex and remarked that school drop outs, in particular, should be allowed to marry early as they have few economic alternative.
The Zimbabwe Human Rights Commission has waded into this hot debate, with a sharp rebuke to the Prosecutor-General. We publish the Commission in its own words.
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Mr Tomana
The Zimbabwe Human Rights Commission wishes to express, in the strongest terms, its condemnation of remarks attributed to Prosecutor-General Johannes Tomana in an interview with Chronicle newspaper on Wednesday June 17, 2015 in Bulawayo, regarding the age of consent to sex and marriage for young girls in Zimbabwe.
Giving his opinion on the on-going debate about the age of consent in the country, Mr Tomana allegedly endorsed the growing trend by the courts to give child molesters non-custodial sentences in cases involving sexual offences against children.
The Commission views the alleged remarks by Mr Tomana as very unfortunate, coming as they do, just a day after Zimbabwe had joined the African continent in commemorating the Day of the African Child on June 16, 2015, under the theme: “25 Years after the Adoption of the African Children’s Charter: Accelerating our Collective Efforts to End Child Marriage in Africa”.
The remarks attributed to the Prosecutor-General had a direct effect of undermining the efforts, which had been made by the Commission, the Government, the African Union and other organisations in raising awareness of the negative effects of child marriages in Zimbabwe in particular and in Africa in general.
Mr Tomana is reported to have suggested that girls as young as nine years of age should be able and be free to consent to marriage if they are not in school and have nothing else to look forward to.
The ZHRC notes that according to pieces of legislation, which have not yet been aligned to the Constitution such as the Criminal Law (Codification and Reform) Act Chapter 9:23, the age of consent remains at 16 years.
However, the Commission is of the view that this is contrary to the Constitution of Zimbabwe and is at odds with regional and international laws and conventions.
The Commission condemns the insinuations arising from the Prosecutor-General’s alleged remarks that it was acceptable for girls of 12 years of age and under to consent to sex and marriage to appease their parents, to avoid idleness or escape poverty.
Zimbabwe is signatory to key regional and international instruments that seek to protect children from harmful practices and sexual abuse.
Accordingly, the country has ratified the majority of continental and international human rights instruments that speak to issues of children’s rights, including abhorrence to child marriages.
At the African level, Zimbabwe has ratified the African Charter on Human and Peoples Rights (ACHPR) as well as the African Charter on the Rights and Welfare of the Child (ACRWC), and is represented in the institutions created to implement these instruments.
At the international level, the country has also ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) which Zimbabwe ratified in 1990 and 1991, respectively.
The Maputo Protocol provides that no woman should marry under the age of 18 years.
The African Children’s Rights Charter specifically prohibits child marriage as a practice and specifies that no one should marry under the age of 18 years.
The Constitution of Zimbabwe is clear that a child is a person under the age of 18 years and should be protected from abuse and from sexual exploitation.
Section 78(1) of the Constitution of Zimbabwe prescribes the minimum age of marriage as 18 years.
In light of the international and regional framework providing for the protection of children and the provisions of the Constitution of Zimbabwe, it is clear that sexual offences against children under the age of 18 should attract custodial and deterrent sentences.
The Commission is encouraged by the statement of His Excellency, the President of the Republic of Zimbabwe, during the official opening of the 23rd Session of the Junior Parliament, which coincided with Day of the African Child commemorations at Parliament Building on June 20, 2015, that Government would soon outlaw any marriage with persons below the age of 18.
The Commission acknowledges the statement by His Excellency, the President as a highly positive step in providing direction to addressing the problem of early marriages, sexual offences against children, appropriate prosecution of offenders and alignment of laws on age of consent to the Constitution, and as a clear indication of his appreciation of regional and international norms and trends in protecting children, which Zimbabwe must conform to.
In light of this, the alleged statements by the Prosecutor-General are in violation of children’s rights, disregard the principle of “the best interests of the child” as espoused in the Constitution of Zimbabwe as well as in regional and international conventions and are against international developments in child protection.
The Commission, therefore, calls on the Prosecutor-General to immediately retract his statements, if indeed he uttered them, or was unequivocal in his remarks so as to raise misconceptions and misperceptions, and issue a public apology to the nation on his alleged unfortunate and misleading remarks on the age of consent and marriage in Zimbabwe, so that the justice delivery system is properly guided on this issue.
The Commission also calls on Government and all stakeholders engaged in protecting, promoting and upholding children’s rights to work tirelessly in accelerating collective efforts towards aligning laws on marriage and sexual offences to the Constitution, ending child marriages in Zimbabwe, and indeed halting violation of the rights of girls and young women.
