A look at the Criminal Laws Amendment (Protection of Children and Young Persons) Act, 2024.

By Promise Njagu and Tendai Shingaidzo

Introduction
Protecting the most vulnerable members of society is a cornerstone of any just and compassionate legal system. In a significant step towards safeguarding the rights and well-being of children and young persons, the Criminal Laws Amendment (Protection of Children and Young Persons) Act, 2024 was recently enacted. This landmark legislation aims to strengthen legal protections for minors and hold perpetrators accountable for crimes committed against them. In this article, we will delve into the key provisions and implications of this crucial Act, exploring how it seeks to shield children and young persons from harm and promote a safer, more equitable society for all.

Background
The amendment was a result of a landmark constitutional court decision that identified a contradiction between the Constitution and the Criminal Law (Codification and Reform Act) regarding the age of consent for young people. The Constitution previously stated that the age of marriage was eighteen (18), while the criminal laws considered that the age of consent for sexual activity was sixteen (16). This meant that a 16-year-old was legally able to engage in sexual activities but was not yet allowed to vote. Many were wondering why a person below this age was regarded as competent to consent to sexual activities yet considered incompetent to give consent as an adult in other activities. The Act amends and criminalizes any sexual acts with a minor regardless of consent as long as the person is below the age of 18. According to the Oxford Dictionary, the age of consent refers to the age at which a person’s consent to sexual intercourse is valid in law. Previously, the age of consent in Zimbabwe was 16 years. This amendment therefore aimed to address this inconsistency and protect children and adolescents from sexual abuse and violence.

International and Regional Treaties vis a vis the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (Criminal Law Code)

a) United Nations Convention on the Rights of the Child (CRC)
The United Nations Convention on the Rights of the Child defines a child as any person under 18, unless a country’s national law states otherwise. This definition is key to the convention, which outlines rights and protections for all children. With 196 countries on board, it is the most widely ratified human rights treaty in history. The Criminal Law (Codification and Reform) Act, Chapter 9:23, was not aligned with this definition, so an amendment was necessary to ensure children receive the protection they deserve. The amendment aimed to maintain the protection of children by aligning the Criminal Law Code with the international definition of a child.

b) African Charter on the Rights and Welfare (ACRWC)
The African Charter on the Rights and Welfare of the Child defines a child as any person under the age of 18. However, the Criminal Law (Codification and Reform) Act, or Chapter 9:23, does not align with this definition, which is a problem because it leaves room for conflicting age definitions. This discrepancy can lead to issues in protecting children’s rights and ensuring their welfare. The African Charter on the Rights and Welfare of the Child is a regional treaty that aims to protect children’s rights and welfare, and it is important that all relevant laws and definitions align with it to ensure the protection of all children.

c) The Constitution [amendment 20 (Act 1 of 2013)] vs the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (Criminal Law Code)
The Constitution per section 81(1) (since 2013) defined a child as anyone below eighteen years. Paragraph “a” further states that every boy and girl under eighteen years “has the right to equal treatment before the law”. While paragraph “e” made it mandatory for the protection of everyone under 18 years of age from sexual exploitation (among other things). This means that since 2013, the supreme law of the land required that any person below the age of eighteen not be sexually exploited and to be accorded equal protection by the law. In short, if a fifteen-year-old was considered not mature enough to consent to sexual activity so was anyone between the ages of 16 and 18. Yet section 61 of the Criminal Code recognized the age of consent as sixteen. This was unequal protection before the law of persons viewed as children by the Constitution.

Landmark court decisions that led to the amendment
a) Kawenda v Minister of Justice, Legal and Parliamentary Affairs and 2 others CCZ 3-22
In 2022, exactly a decade after the coming into force of the Constitution, it was declared by the Constitutional Court that sections 61,70, 76, 83, and 86 of the Criminal Law Code were unconstitutional and ordered that a law be enacted that protected children from sexual exploitation.
b) Mudzuru & Anor v Ministry of Justice, Legal & Parliamentary Affairs N.O. & Ors
(CC 12 of 2015; Constitutional Application 79 of 2014) [2016] ZWCC 12 (20 January
2016)
Two women brought a case to the Constitutional Court in Zimbabwe, challenging the validity of a law that allowed girls to marry at 16. They argued that the minimum age of marriage should be 18, as stated in the Constitution. The Court ruled that anyone under 18 cannot get married and declared the law unconstitutional.

The present amendment
The amending Act came in the form of the Criminal Laws Amendment (Protection of
Children and Young Persons) Act, 2024 (the Amending Act). The amendment repeals
and substitutes section 70 of the Criminal Law Code by criminalizing inappropriate
touch and actual sexual intercourse with a minor. Section 4 (1) of the act state that:
a) any person who commits upon a child any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or
(b) solicits or entices a child to have sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act;
shall be guilty of sexual intercourse or performing an indecent act with a child, as the case may be, and liable to a fine not exceeding level 12 or imprisonment for a period not exceeding ten years or both.
It is interesting to note that some are interpreting this section as not only criminalizing the physical act (of contact or intercourse) but also the “solicitation and enticement” which might be viewed as grooming for purposes of sexual exploitation. It will be interesting to see how the courts interpret this section in light of this view. Also noteworthy is that the amendment does not define the actual acts that amount to criminal sexual activities with a minor, rather it simply qualifies acts of physical touch as criminal when they are in the region “that would be regarded by a reasonable person to be an indecent act”. It is the view of the author of this article that the definition is broad enough to encompass all forms of illegal sexual contact that a child may be subjected to
The “Romeo and Juliet Clause”
A Romeo and Juliet clause in legal parlance refers to a clause that recognizes a certain maximum age discrepancy permissible before one is guilty of statutory rape. Per section 4 (3) (a) of the Amending Act if two persons below 18 years (and are of age differences not more than 3 years) engage in sexual touch or intercourse, they are considered not to have done an indecent act nor is the question of “statutory rape considered”. It is regarded as consensual sexual intercourse or sexual activity. Per section 4 (3) (b) if an adult and a minor engage in sexual touch or intercourse, with the minor being not more than 3 years younger than the adult, no charge arises as well. However, the prosecutor general can prosecute such a case after consideration of a report from a probation officer.

Penalties and defenses
Previously a person could not be found guilty of “statutory rape” if they could prove that the person they had sexual intercourse with was 16 years or above and also consented to the sexual activity at the time of the activity. This is no longer the case. A minor younger than an adult by more than 3 years cannot consent to an indecent activity or sexual intercourse. However, it is a defense (refutable by the prosecution though), that the accused adult thought that the “putative child” was an adult. A person found to be guilty of either having sexual intercourse with a minor or indecently touching a minor can either, be imprisoned for up to 10 years or fined at level 12.

Other important crimes pertaining to children created or amended by this
amendment.

1. There is a new crime of “Deliberate infection of a child with a sexually transmitted disease” created by the insertion of 70A in The Criminal Law Code. Anyone who exposes and infects a child to a sexually transmitted illness that has infected them shall be guilty of this offense. If an adult is convicted of having sexual intercourse with a minor or engaging in indecent activities with a minor and “Deliberate infection of a child with a sexually transmitted disease” the sentences shall not run concurrently.
2. Section 76 in the Criminal Law Code is also repealed and replaced by a section Complicity in sexual crimes. This section criminalizes the act of permitting one’s premises to be used for illegal sexual activities. It also criminalizes the holding of a person against their will. This gives rise to crimes such as kidnapping and unlawful detention or being charged as an accessory or accomplice.
3. The crime of “Procuring for purposes of unlawful sexual conduct” has been introduced by the repeal and replacement of section 83. Though not confined to the child only, the section metes out up to 10 years imprisonment or a level 16 fine for anyone who procures a child for illegal sexual intercourse, to become a sex worker, or to become an inmate or frequent places such as brothels for sexual intercourse.
4. Section 86 is repealed and substituted, by a crime to be known as “Permitting child to resort to place for purpose of engaging in unlawful sexual conduct”. This crime makes a person in charge of premises if lodged by a minor for purposes of illegal sexual activities be charged. If the minor is below 12 years, the person in charge of the premises shall either be imprisoned for up to 10 years or fined at level 11 or both. If the minor is above 12 years, the person in charge of the premises, if convicted shall be imprisoned for a maximum of 7 years or be fined at max level 10 or both.

Strengths of the Amendment
1. This new law is a milestone in safeguarding children’s rights against pedophiles.
2. It shows a demonstration of the Constitution’s significance in Zimbabwe.
3. The law allows for some flexibility if the individuals are close in age, like 17 and
19, but still requires the Prosecutor General’s approval for prosecution if the age
difference is three years or less.
4. The amendment aligns with the International treaties by defining a child as
anyone under 18.
5. The Act makes it a crime to knowingly transmit a sexually transmitted infection
(STI) to a child. 6. The amendment criminalizes harboring or enabling individuals who commit
sexual acts with children, allowing for accomplices and accessories to be charged

Conclusion
This piece of legislation not only acts as a deterrent to would-be perpetrators but also
shows the commitment of the legislators working hand in glove with the judiciary to
protect the rights of the child. The definition of criminal acts that might arise in the
sexual exploitation of minors should be sufficiently covered by the broad definition
given in the Amending Act. It is now the task of the executive and judiciary to ensure
that section 81 (e) of the Constitution gets the life that the Amending Act breathed
into it.