The New "Old" Law

The recent amendments to the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE) have generated considerable discussion and commendation across various sectors, reflecting a collective recognition of the need for legal reform to better protect vulnerable populations, particularly children. The enactment of Act No. 1 of 2024 signifies a pivotal moment in Zimbabwe’s legal landscape, as it specifically addresses the contentious definition of "young person." This amendment not only clarifies the legal status of minors but also reinforces the country’s commitment to upholding the rights of children as enshrined in both the Constitution and the Children’s Act. The amendments aim to eliminate ambiguity in the legal framework, ensuring that all individuals below the age of 18 receive appropriate protections.

When legislative amendments are enacted, there is a fundamental expectation that they will enhance the existing legal framework and providing stronger protections for children. In this context, the amendments are anticipated to directly address critical elements that constitute sexual offenses against children, thereby strengthening the mechanisms in place for their protection. These changes are expected to lead to more effective legal responses to instances of child exploitation and abuse.

However, questions remain about the extent and implications of these changes. What has truly changed in the legal landscape? Are the new provisions “NEW”? Are they sufficient to address the challenges faced by children in today’s society? Moreover, has the legal framework been significantly strengthened to ensure that the rights of children are not only recognized but actively defended? Addressing these questions will be fundamental in evaluating the effectiveness of the amendments and their impact on child protection in Zimbabwe.

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So Whats Changed?

1.?The term “young person” has been substituted by “child” in every provision that it appeared within the Act

2.?The term extra-marital replaced by the term sexual intercourse

3.? Old Law: The definition of young person (persons above the age of 16 but below the age of 18 years) is now repealed

New Law: substituted by the term child defined as any person below the age of 18 years

4.??Old Law (the Romeo and Juliet Clause): Section 70(2a) of the CODE, Sexual Intercourse between young persons who are both over the age of 12 years but below the age of 16 years is not an offence

New Law: The following circumstances shall not be regarded as an offence:

i.?sexual intercourse between children whom the difference in age is not more than three years

ii.?sexual intercourse between a child and an adult who is not more than three years older than the child

5.??Old Law: proving that the young person had consented to the sexual act shall not be a defence

New Law: no change

6.??Old Law: It shall be a defence that the accused had reasonable cause to believe the child was above 18 years

New Law: no change

7.??Old Law: Sexually Transmitted Disease definition excluded HIV (section 78). After the enactment of the new Marriages Act in 2022 which repealed the Deliberate Transmission of HIV (section 79), there was no law which criminalized this.

New Law: Retained the wording which was previously contained in section 78, serve for the fact that the new section is specific to child protection

??????????????i.?????? The title of the section is now specifically to criminalize deliberate infection of STDs to a child

???????????? ii.?????? Definition includes HIV as a sexually transmitted disease among other STDs

???????????? iii.?????? It is not a defense that the child knew the accused was infected or that the child consented to the sexual act.

???????????? iv.?????? The penalty provision has not changed

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So is it New?

The most notable alteration is the replacement of the term "young person" with "child," which aligns the legal definition with international standards by categorizing any individual under the age of 18 as a child. While this change clarifies legal protections, it raises questions about whether these provisions are truly "new" or merely a rephrasing of existing definitions that do not fully address the complexities of adolescent relationships.

The amendments to the "Romeo and Juliet" clause, which allows for consensual sexual relationships between children with a limited age difference, represent a shift toward an understanding of adolescent sexual interactions. However, this provision may still permit scenarios where power imbalances exist, potentially leaving vulnerable children exposed to exploitation. Further, the retention of the clause that negates consent as a defense further emphasizes a commitment to protecting children, yet it may also deter them from seeking help out of fear of legal repercussions. This rigidity could undermine the very protections intended by the law.

While these amendments signify steps in the right direction, they may not be sufficient to fully address the myriad challenges faced by children in today’s society. The legal framework has been modified, but the underlying systemic issues—such as socio-economic factors, cultural attitudes toward consent, and the accessibility of support services—remain unaddressed. Although the amendments reinforce the recognition of children's rights, the question of whether these rights are actively defended in practice still looms large. The effectiveness of these changes will ultimately depend on their implementation and the societal commitment to not only uphold but also advocate for the rights and well-being of children. Continuous evaluation and active engagement with communities will be essential to ensure that the legal framework evolves to meet the needs of children and adequately protects them from harm.

A comprehensive strategy that addresses both legal and social dimensions is necessary. This includes enhancing awareness and sensitivity among law enforcement, providing educational resources about “consent”, and creating supportive frameworks that empower young individuals to seek help. Only through a holistic approach that combines legal reform with community engagement and education can we ensure that all children are adequately safeguarded from harm and exploitation.