THERE are some stories that you read and they sound so absurd you can’t believe they are true.
One such story is the one that appeared in one of Zimbabwe’s daily newspapers titled Minor convicted of stealing after sex. The story was so wrong, so cheap and so against everything that the Zimbabwean legal system is trying to be that I was shocked beyond belief.
Firstly, the writer of the story is acknowledging that the convicted person is a minor, but does not question the fact that a grown man was having sex with a minor.
How does one combine the word minor with the phrase after sex in the same sentence and not see that there is something worse than stolen money happening?
The story narrates how a certain Collins Chimusoro hooked up with the minor for sex and how the minor later stole his money while he was asleep. He even makes Chimusoro’s case by according him an opportunity to narrate how he had ended up with the minor!
At no point does the writer show any indication that by having sex with the child, Chimusoro was actually contravening section 81 of the Constitution of Zimbabwe. Chimusoro on his part plays the part of a victim to the hilt!
“I had proposed love to her so to me it was just out of love that I decided to have sex with her, so I never thought she was a sex worker.” That is it, a child molester, sanitised and released into society to hunt again for a vulnerable 17, 16 or even 15-year-old! I do not condone sex work or stealing. I however think anyone who has sex with a 17-year-old is the criminal.
The 17-year-old who gets hired or hooked up for sex is a misguided and vulnerable child and a man who takes advantage of her should answer to the law.
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Secondly, what really disturbs me is the failure of our justice delivery system to protect this child and many in her situation.
It’s a sign that something is gravely wrong with our legal system if a man who has committed an illegal sexual act with a child can approach the police, get the minor arrested and convicted without himself having to answer any questions about the sex!
The problem is, we have too many child protection-related laws that are not harmonised with the Constitution and what the Constitution criminalises is still legal under some of our statutes.
It is laws like the Customary Marriages Act that accept that a 16-year-old can consent to sex that gives the impression that what Chimusoro did is legal.
I would expect this confusion to be with Chimusoro and men of similar character, but not with a journalist whose duty is to inform accurately and certainly not with a court of law!
The Constitution has clearly defined a child as someone less than 18 years in section 81, this should clearly supersede any other ultra vires provision.
For the avoidance of doubt, this section says: “Every child, that is to say every boy or girl under the age of 18 years…” In my book, a child cannot consent to sex and having sex with her is statutory rape. The question that I have is: When faced with such cases do the courts even refer to the Constitution?
When are we going to see the best interest of the child prevailing even where a child is in conflict with the law as provided for by section 81(2) of the Constitution?
During the constitution-making process, the people of Zimbabwe were unanimously agreed on issues of child protection and this should be reflected in the urgency placed on the alignment process of our laws.
We are currently in an economic environment where children are failing to go to school and resorting to vending and even sex work! The impact of this is reflected in the reported cases of STI and HIV case increase among teenagers.
Clearly, signs of a failing social protection system. If we have a failing social protection system, the legal system is under pressure to perform in order to guard against vulnerabilities that affect children when they are not socially safe.
Under normal circumstances, Chimusoro should have been the one facing criminal charges for seducing a child, but instead he has become some love-sick innocent man!
Thirdly, I am puzzled by the fact that this case even went to trial. A child is involved here and the courts are acknowledging that by not revealing her name, but go on to try and convict her. The sentence is suspended, yes, but she now has a criminal record.
It is my understanding that the government of Zimbabwe is piloting a pre-trial diversion programme for young persons and this child should have been a candidate for it.
For information, the diversion programme diverts young persons who are under 21 and are in conflict with the law from the normal justice system to avoid conviction and to provide the young person with an opportunity to take responsibility without going through the stigmatising and punitive justice system.
This child is reported to have admitted her crime; she is 17 therefore under 21. A perfect candidate for diversion, what went wrong?
Clearly, the conviction of this child was a miscarriage of justice and a sign that our children are not safe even before the law. In response to this article, Noreen Huni, Regional Psychosocial Support InitiativeCEO, said “When a 17-year-old child is found in a bar drinking and getting picked up for sex there is something wrong with the circle of care around that child and that is what must be addressed.
There is too much family disintegration and vulnerability of children in Zimbabwe. We need to strengthen the family to enable them to provide for children’s protection needs, including psychosocial support needs. A 17-year-old belongs in the classroom, not to a bar; let’s get her back where she belongs.”
I could not agree more, as a society we need to work together to protect our children.
We need a multi-sectoral approach which should include the police, the courts, parents, and even journalists!
Convicting a child of theft and letting go a man who had sex with the same child does not send the message that we are serious about protecting our children! It’s simply punishing the victim.
l Sibusisiwe Marunda is the Zimbabwe Country Director for the Regional Psychosocial Support Initiative.
