HON. DR. ENERGY MUTODI:  Thank you Mr. Speaker Sir.  I rise to present the report on the Public Hearing carried out by the joint Portfolio Committee on Justice, Legal and Parliamentary Affairs and the Thematic Committee on Human Rights with regards to the Criminal Law Amendment protection of young children and young persons Bill.  

Section 141 of the Constitution of Zimbabwe gives Parliament of Zimbabwe an obligation to engage the general members of the public during its law-making procedures and to ensure that all interested parties are consulted on Bills being considered by Parliament to be enacted into law.

In fulfillment of this constitutional obligation, Parliament of Zimbabwe through the Portfolio Committee on Justice, legal and Parliamentary Affairs in conjunction with the Thematic Committee on Human Rights, held public consultations on the Criminal Laws Amendment Bill to gather the views of the people from the 6^th to the 11 of May 2024.  The Bill which was gazetted on the 1^st of March 2024 seeks to amend the Criminal Law Codification and Reform Act Chapter 9 Subsection 23.23 and the Criminal Procedure and Evidence Act Chapter 9.07.

BACKGROUND

Two applicants who are young Zimbabwean feminists and human rights activists with a special interest and concern for children, gender and women’s socio-economic rights, filed an application to the High Court of Zimbabwe as a public interest application to protect the rights of children.  In their application, they averred that among other things that the current age of sexual consent in Zimbabwe is 16, this age is derived from Section 61 of the Criminal Law Code which defines a young person as a boy or girl under the age of 16 years.  However, Section 81 of the Constitution makes it clear that a child is anyone below the age of 18.  Therefore, according to them, a young person should be defined in the Criminal Law Code to mean a boy or girl under the age of 18 years. 

The Constitution of Zimbabwe being the Supreme law of the land; any law custom conduct or practice that is inconsistent with the same is invalid to the extent of its inconsistency.  According to them, the Criminal Law Court is unconstitutional as it fails to recognise that a child is anyone below the age of 18 years; more particularly, the Criminal Law Court is unconstitutional in that it defines the age of sexual consent to be 16 years.  That being the case, this Bill will confirm amendments made by the Presidential Emergency Decree that was necessitated by the implementation of the Constitutional Court Judgement in Kawenda Vs Minister of Justice and others where it was ruled that Section 70, 76, 83, 86 of the Criminal Law Code are declared unconstitutional and be set aside. Further, it seeks to recriminalise the deliberate transmission of HIV.

1.     Methodology

In partnership with SADC Parliamentary Forum, the Committee was split into two teams covering all the country’s 10 provinces, making use of 10 venues. Team A covered Mashonaland West, Midlands, Bulawayo, Matabeleland North and Matabeleland South while Team B conducted consultative meetings in Mashonaland Central, Harare, Mashonaland East, Manicaland and Masvingo. Public hearings were conducted to gather the views from the general members of the public. The Committee also received written submissions from various stakeholders mainly through email.

2.     Overview of the Consultations

The Committee managed to reach a total of 866 people, of which 56.1% of them were men while 44.4% were females and 1.8% were persons with disability. There was low turnout in some places which may be attributed to low willingness of the public to participate during such consultations. However, the Committee managed to get very insightful contributions. The Committee considered and deliberated on the submissions gathered to develop this comprehensive report which I now present.

3.     General submissions

The public applauded Parliament in reaching their communities seeking their views pertaining to the Bill which is before Parliament. There was general consensus among the public who expressed that the Bill should seek to protect the rights of all ages in Zimbabwe and leave no one behind. Hence, the majority of the crowd agreed with the alignment of age of consent from 16 years to that of 18 years as provided for in the supreme law of the country, which is the Constitution of Zimbabwe.

4.     Specific Submissions

1. Clause 3: This clause will amend definitions of “extra-marital sexual intercourse” and that of “young person.”

The public applauded this amendment and agreed to the definitions given in the Bill.

1. Clause 4: Repeal of section 70 of the Criminal Law Code

There was a general consensus in support of the provisions of this clause. Various organisations representing interests of children and young women submitted that this clause will provide sanctuary for children and young persons, that is to say boys and girls under the age of 18, with the protection to which they are entitled under section 81 of the Constitution. 

It was further submitted that, the introduction of a “Romeo and Juliet” Clause into the Code will make special provision for sexual intercourse between young persons where the age difference between them is no more than three years.  It was their opinion that since such cases will be prosecuted, only with the specific authority of the Prosecutor-General, this means that sexual intercourse between children and teenagers will not be brought automatically before the criminal courts.

The majority of the members of the public argued that without curbing religion and traditional issues, child sexual exploitation will not be remedied.  They went on to further state that religion sects like Mapositori are still practicing child marriages and labelled them as the most perpetrators of this crime in our society. The public further emphasised on the need for awareness campaigns against sexual exploitation of children and young persons and make it known to the public that the penalty for such actions are hefty for purposes of deterrence. 

On Clause 5: Amending Section 73 of the Criminal Law Code to make reference to the new definition of “young person”.  

Some members of the public raised concerns on the wording of the clause and recommended for the rephrasing of the clause as follows:

“Section 73 (“Sodomy”) (3) of the principal Act is amended by the deletion from paragraphs (b) and (c) of “sixteen years” and the substitution with “eighteen years”  

• Clause 7: Complicity to sexual crimes

There was general consensus in support of this clause. The majority of the public applauded the Bill as it seeks to forbid adults from taking advantage of children and young persons for their personal gains. It was submitted that some parents and guardians are still participating in child marriages, hence they should be brought to book. 

1. Clause 8: Criminalisation of deliberate transmission of HIV among the sexually transmitted diseases covered by the Criminal Law Code.  Some members of the public were of the opinion that this clause must be supported.  It was their submission that the provisions of this clause will correct an anomaly whereby it is criminal to infect someone with a sexually transmitted disease such as Syphilis or Gonorrhea, but not with HIV. 

However, some members of the public were against this clause as they argued that during the crafting of the Marriages Act in 2022, the Government agreed to the lobbying of people living with HIV and other support groups and civil society organisations to decriminalise willful transmission of HIV.  It was further submitted that there is no method of establishing the period one may have been infected with HIV and who would have transmitted the virus between the two when the statuses of both were unknown before the sexual intercourse happened. I am not sure if I was very clear there.  Madam Speaker, what they are saying here is that it could not be easily established who infected who. 

It was further submitted that there is need for the drafters of this clause to first explain why they intend to recriminalise the deliberate transmission of HIV, a crime that was repealed just two years ago.

1. Clause 11: Amendment to section 319A of the Criminal Procedure and Evidence Act.

The public applauded this clause as it seeks to be protecting the rights of children and other persons with hard hearing challenges and will be allowed to give evidence in court in writing or by signs or by augmentative and alternative communications. It was submitted that this is a positive step towards the effectiveness of our judicial service system processes. 

5.     Committee Observations

The Committee observed the following:

• The public was in support of the amendments being proposed by

the Bill as they seek to protect children and young persons below the age of 18 years.  So the public was generally in agreement with all the provisions raising the age of sexual consent from 16 to 18 years as well as criminalising the deliberate transmission of HIV.

6.     Committee Recommendations

The Committee therefore recommends the following: –

• The Bill should be passed by both Houses taking into consideration

the submissions from the public;

1. There should be a provision for abortion where young persons or young girls fall pregnant even when the responsible perpetrator was another minor. This is a very critical one that they actually raised to say, you may have a minor of 13 years who is impregnated by a 16 years old boy. The law is not criminalising as you have seen that there will be a Probation Officer to consider whether the perpetrator must be brought to justice.  Now, the 13 year old girl will still have to live with the pregnancy, but according to the submissions and workshops that we had, it was realised that the pregnancy may actually be a risk to the life of the young girl.  In this case, the Committee recommends that there be mandatory abortion or abortion be allowed in such circumstances.
2.        The Committee also recommends that the deliberate transmission of HIV be penalised as stated in the Bill. 

7.     Conclusion  

In conclusion Madam Speaker, the public welcomed the Bill stating that it is a positive step towards the country’s legal system. Not only does it protect all children from sexual predators, it also protects the boy child using the Romeo and Juliet clause against vindictive parents and guardians who are against adolescent relationships. Further, the public welcomed the re-introduction of deliberate transmission of HIV as a crime as it will deter malicious individuals from getting away with infecting others with the chronic illness deliberately. Be that as it may, the Bill as a whole was welcomed along with a few additions and subtractions.  I thank you Madam Speaker Ma’am.