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 now effectively 12 years, although it is 16 under the constitution.
In 2013, when a magistrate sentenced a man who had sex with a 14-year-old girl to an effective 12 months in jail, a judge rebuked her on appeal, saying it was “an extremely harsh sentence that she imposed without any plausible justification as it would have the effect of further prejudicing the accused person.”
Now campaigners want law reforms currently underway to align legislation with the new constitution to reaffirm 16 as the age of consent and give judges more powers to issue deterrent sentences.
“It’s terrible,” MDC lawmaker Priscilla Misihairabwi-Mushonga [Umzingwane] said yesterday as she surveyed the current sentencing guidelines on sexual offences against children.
She added: “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 are more valorised than our children. There’s that comparison that losing a cow is worse than having a woman raped.”
Campaigners say families of victims have lost faith in the law, to the extent of making private arrangements with those who rape their children.
In April, 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.
In May, Future Ncube, a 19-year-old Kezi herdsman who impregnated his 12-year-old “lover” was sentenced to perform 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 12 – with the courts playing a major role in lowering the bar.
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’re protected by the irrefutable presumption that they’re incapable of consenting to sex.
“A man who has sex with a 12-year-old girl may be able to escape the charge of rape if he can show that the girl was capable of giving consent and that she gave consent. He will only be charged with a lesser offence of performing sexual intercourse or an indecent act on a young person.
“This attracts a lesser sentence… it would not happen if all girls under 16 enjoyed the irrefutable presumption that they are incapable of consenting to sex.”
When magistrates have tried to lean heavily on sex fiends, they have in some cases met resistance from higher courts.
In 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.
On appeal, Justice Andrew Mutema blasted the magistrate for being “too harsh”.
The judge, citing earlier cases to buttress 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 underage but worldly-wise girl.”
Magaisa says the attitude of some magistrates and judges like Justice Mutema 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. 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.”
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. Sixteen years and below must be rape, full stop, he argues.
Writing on Twitter last Saturday, Prof Moyo said: “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.”
Chiedza Simbo, the former director of the Zimbabwe Women Lawyers Association, said the categorisation of sexual offences opened too many loopholes.
She 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 shouldn’t even be having debates about whether they’re mentally capable or not. Of course they are 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 unconsented sexual intercourse was leaving children at the mercy of child sex predators.
“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 attracts life, but sexual crimes against children can be reduced to the levels of just mere assault.
“The sentences aren’t deterrent and can encourage perpetrators to go on, rendering the law ineffective.”
Misihairabwi-Mushonga says faced with an ineffective justice system, many parents are turning to settling matters with perpetrators without going to court, to the detriment of the victims.
“For me, the biggest issue that arises is that sometimes parents are forced to opt for that person to marry their child because they aren’t sure whether justice would be properly delivered,” said Misihairabwi-Mushonga.
Reforming the law is now 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.