What the Bill says . . .

◆ THE Criminal Law (Codification and Reform) (Protection of Children and Young Persons) Amendment Bill, which raises the age of sexual consent from 16 to 18 will confirm amendments made by a Presidential emergency decree that was necessitated by the implementation of the Constitutional Court’s judgment in Kawenda versus Minister of Justice, Legal and Parliamentary Affairs and Others. The President’s intervention was rendered more urgent by a court-ordered release of all offenders convicted of statutory rape.

◆ The Criminal Law (Codification and Reform) Act (commonly called the Criminal Law Code) contains several sections that protect children from sexual exploitation. The sections refer to children as “young persons” — boys and girls under the age of 16 years.

◆ The Constitution, on the other hand, fixes 18 years as the age at which children become adults, so, although the Criminal Law Code protects children under the age of 16, it does not provide protection for children between the ages of 17 and 18. As a result, the Constitutional Court has declared the definition of “young person” in section 61, as well as sections 70, 76, 83 and 86 of the Code, to be unconstitutional and void.

◆ The objective of the Bill is to amend the law in a manner that protects children. Thus, the main purpose of this Bill is to amend the Criminal Law Code by replacing those sections and extending the code’s protection to all children up to the age of 18 years, as required by the Constitution.

◆ The Bill will also amend the Criminal Procedure and Evidence Act to make it possible for children and other witnesses who cannot talk to give evidence in other ways such as through written statements, signs and other augmentative and alternative means of communication.

◆ Clause Three will amend the Criminal Law Code on the definition of “extra-marital sexual intercourse” to make it clear that child marriages are not recognised as valid unions. In this regard, sexual intercourse between a child and an adult will not be legal even if they have gone through a form of marriage.

◆ The new definition of “young person” will extend the code’s protection to cover all children, that is, boys and girls under the age of 18 years.

◆ Clause Four will replace section 70 of the Criminal Law Code, which makes it a crime to have sexual intercourse or engage in other sexual activity with a young person.

◆ The new section will differ from the existing one in the following ways: — It will extend the protection provided by the section to cover boys and girls up to the age of 18 years.

— It will add a provision stating that if the persons who engage in sexual activity are of a similar age — specifically where the difference in their ages is three years or less — the prosecutor-general will have to authorise their prosecution before they can be charged under the section. Before authorising a prosecution, the Prosecutor-General will have to consider a report from a probation officer but will not be obliged to follow the officer’s advice.

— It will add another provision making it clear that the section does not limit the provisions of other laws, for example, the Children’s Act, which deals with the prosecution of children.