Zvamaida Murwira Senior Reporter — THE National Assembly has approved additional amendments to the Criminal Law Codification and Reform Act, meant to punish child molesters that include criminalising brothel owners, complicity in aiding child sexual abuse, and rationalising the discretionary powers of the Prosecutor General on juvenile sexual offenders.
The amendments also seek to criminalise those that infect children with sexually transmitted infections (STIs), such as HIV/AIDS, while sentences for those convicted of child sexual offences should not run concurrently with other crimes that an accused person would have been convicted of.
The amendments were tabled before the National Assembly this week by Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi and were approved by plenary before they were referred to the Parliamentary Legal Committee to ascertain if they are consistent with the Constitution.
The Criminal Law Codification and Reform Amendment Bill seeks to raise the age of sexual consent from 16 to 18, in compliance with the Constitution and a court ruling that declared a section of that law that set the age of sexual consent at 16 as unconstitutional.
During debate at committee stage of the Bill, Minister Ziyambi tabled amendments which criminalise intentional transmission of HIV/AIDS to a child and withdrew an initial clause, which had a dragnet effect by punishing wilful transmission of STIs that include HIV/AIDS in general.
The new clause restricts wilful transmission of STIs to a child.
According to the Bill, the definition of STI includes syphilis, gonorrhoea, herpes, HIV among others.
"A court convicting a person for any crime constituting unlawful sexual conduct against a child shall, if it also convicts that person for deliberately infecting that child with a sexually-transmitted disease, not make any part of the sentence of imprisonment imposed for the latter crime run concurrently with any sentence of imprisonment imposed for the first-mentioned crime," reads part of the amendments.
There is also another clause that rationalises the discretionary powers of the Prosecutor General, by referring a case involving juvenile offenders to a probation officer before the National Prosecuting Authority decides whether to prosecute them or not.
Initially the Bill left it to the PG to make a discretion on whether to prosecute juvenile offenders.
"There may be a consistent behaviour that may be picked by the Probation Officer in that particular individual. If they are first timers, I do not think that the probation officer will then prefer that without any reasonable cause because the Prosecutor General will interrogate that report and be able to satisfy herself that the case should be prosecuted."
There was, however, heated debate on Clause 8, which criminalises owners of brothels or lodges that would be complicit in the sexual exploitation of children.
Legislators argued that it was sometimes difficult for proprietors of hotels and lodges to know that there was sexual exploitation of children at their premises.
Marondera Central MP, Mr Caston Matewu, felt the clause created challenges.
Dzivarasekwa MP, Mr Edwin Mushoriwa, said it was difficult to prove that owners of hotels and lodges allowed the use of their premises for child sexual exploitation.
Others felt charging hotel owners might be problematic in that some hotels were multi-owned by several shareholders, making it difficult to arrest them.
There were others who questioned how the law would treat parents who have a son, who brings an under-aged daughter-in-law to their home for marriage.
In response, Minister Ziyambi said there were essential elements of that crime that the Prosecutor General would have to prove, one of which was criminal intent.
"So the law acts as a protector for those that might be innocent and ensures that those that are guilty are nailed by the prosecution beyond reasonable doubt. You will find out that the prosecution should actually bring out the mens rea (criminal intention), that you knew what you were doing and you did that. Having said that, I want to add that in society, there are people who do exactly like this and our investigating officers are able to see a particular pattern. So, if we say we expunge it from the Bill, we have actually given them a licence to do that," said Minister Ziyambi.
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"There is a specific pattern that comes out in terms of those that deal with brothels. Our law enforcement agents or our investigators can actually pin-point a specific pattern that this particular brothel, even when investigating it, the young child can actually indicate so and so is the one who picked me up and did one, two, three, four and then this particular person came in. We want to deter people who use their premises for these kind of activities. It is different from two young people who pick each other up and go home. There are those who use their premises for that particular purpose and you can have a specific pattern. We are saying that if the prosecution can prove -- because when you are investigating a case, you pick certain essential elements that will nail them and you will say this particular child said this."
The clause was eventually adopted.
