JUSTICE for Children Trust director Caleb Mutandwa has challenged the High Court to live up to its constitutional mandate of protecting every child in Zimbabwe by setting guidelines in sentencing sexual offenders and alignment of the criminal code to the Constitution.
By Phyllis Mbanje
Recently, the law of sexual consent came under the spotlight after it was revealed that the age of consent was 12 years especially in rape cases, contrary to popular belief that the age of consent was 16.
While the Constitution does not provide for the age of consent to sexual intercourse, it protects “every child, that is to say every boy and girl under the age of eighteen years” from sexual exploitation and any form of abuse (Section 81 of the Constitution).
“We are seriously concerned with the protection of children from all forms of abuse. In this case, we note with concern that people may be misled, particularly on what the Constitution provides,” Mutandwa said.
The confusion, according to legal analyst Alex Magaisa, stems from the definition of a young person under the Criminal Law (Codification and Reform) Act, but for the purposes of rape, the age of consent is effectively 12 years old according to sections 64 and 70 of the Act.
“We think the paradox is in saying a child between 12 and 16 years cannot consent to sexual intercourse and then say where they do consent the crime is not rape, but having sexual intercourse with rape. This, in our view, is partly behind the argument that the age of consent is, therefore, 12 years and not 16 years,” Mutandwa said.
The child rights activist said the major problem was with the courts which are mandated by the Constitution to give adequate protection to children.
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“The Criminal Code provides for a maximum sentence of 10 years for anyone found guilty of having sexual intercourse with a young person. We are yet to hear of anyone who was sentenced to 10 years for this offence,” he said.
Mutandwa said his organisation had received several complaints about “lenient” sentences being passed for people found guilty of having sexual intercourse with young girls.
