In the wake of revelations that courts are progressively lowering the age of consent in Zimbabwe to 12 years from 16 by refusing to send child sex predators top jail, The Chronicle’s Auxillia Katongomara sat down with Prosecutor General Johannes Tomana to get his thoughts on what is a very emotive subject. She started by asking him if he has followed the debate around the shifting age of consent:
TOMANA: The way this issue is being handled is misleading a lot of people. It’s creating the impression that there’s no adequate protection for the girl child. Nobody is really talking to the girl child, everybody is talking on behalf of the girl child.
It’s assumed that the girl child’s independent decisions start at an age that those that are speaking want to fix, but if you go out there you’ll find out that some of them may want to start out in life early.
KATONGOMARA: What’s the age of consent in Zimbabwe?
TOMANA: Simple, 16! No-one who impregnates a 12-year-old gets community service as such. Why? Because below 12, it’s an absolute No! No! At 16, you still can’t consent but it’s been accepted some of the girls would have actually practically consented or they may actually be going out with [dating] the person involved.
But what the law says is that, notwithstanding, we want them go grow older before they engage in sexual activity. That’s why we still punish the boyfriend, but we punish that boyfriend knowing very well that it’s not that aggravated situation where somebody has actually been ravaged and violated, this is a consensual arrangement. But morally, we’re saying ‘stop, don’t do it!’
So you can’t put a 12-year-old and a 16-year-old at the same level because in this case she’s saying ‘yes’, but we’re saying you can’t say ‘yes’ although the evidence clearly shows that yes, these people are agreeable. We’re saying 16 is a bit too early.
KATONGOMARA: Are there any law reforms on the cards? Rights groups say the new constitution offers greater protection to the child. Lawyer Chris Mhike, for instance, says Section 64 of the Code (Criminal Law Codification Act) and Section 81 of the Constitution need to be aligned so that there’s a relationship between the upper limit for the age describing children as given in both pieces of the law, which would be 18 and below.
TOMANA: When you talk of harmonisation, what you’re saying is that the constitution has provided for something new, for example, and then you want the existing legislation to be able to incorporate that new thing in the constitution.
Now, the girl child’s protection and children’s rights and stuff around that, you find them in the constitution but you then also find the implementing statutes under the constitution giving effect to those protections that are given to the girl child.
Your arguments seem to be giving the impression that what the advocates are saying is that below 16 it should just be treated as rape, whether they agreed, whether they consented or not. But I want you to do an exercise to ask a girl child who is in that age group who decides to do that, in order to address the real issues.
If you look at it, we don’t have a framework for example, where we can guarantee that all our girl children are usefully engaged before they get above 18 years, we don’t have that. We have nine-year-olds, 12-year-olds, 13-year-olds who’re not in school, who’re not doing anything for example. What are we saying to them? Then we say you can’t even do this, when the environment is not giving them alternative engagements? What are we talking about?
You need to be able to be holistic about it. If we educate our girl child universally up to, for example, where they get to the age of 18 in an environment where you guarantee that they’re not abused, then we are talking. But to simply say ‘no such and such conduct for any girl say below the age of 16’, I think we’ve not asked ourselves what we’re saying about that girl who would rather prefer to lead their life in the direction of getting married.
What are you saying, should they just sit there wait until they get to about 21 doing nothing? Is that what you’re saying? We must talk to everybody.
As a moral issue, it’s a very important topic but as just a standard that has no moral but you can sell to people, I think you create more problems especially to the same person that you want to protect: the girl child. What are you saying they should do?
For example, you don’t have anything that they should be engaged in while they wait to become the age. What do you want them to do because in some cultures, for example, they value marriage more than anything else because when your girl child is married, you’ve achieved what any father or mother would want to expect in their girl child.
If, for example, we’re able to marry off our child at 15 and she’s married, are you saying that should not happen even where, for example, there’s nothing else that that girl could be doing? Is that what you are saying?
I want to say that’s the reason why the law that we’ve at the moment recognises that they’re actually an adult, they can make a decision, and they can make a real conscious decision about what they want about their own life and when you establish that, there’s no need to go all the way to punish the other person.
That’s why it’s called statutory rape in terms of the old provisions, where for example, instead of sentencing you to 15 years you may then be sentenced to say five for example.
In some cases, if you talk to our prosecutors, the experience is that you find that she would actually demonstrate to you that you’re destroying their life and demand you let that guy go because it’s her own will, she wants to get married to that person.
You’ll also find out that person also wants to get married to the girl. Is it not better to allow them to get married than send this one to jail after she has already been violated, for example, and send her back to society that would not actually look at her as a pure person anymore. Is that better?
We need to look at it in a very practical, wholesome way, and I think it’s important to talk to the girl child. I want to say they’re very sensible people and I know girls develop faster than boys and they mature faster than boys. Are we saying we should continue talking on their behalf when they are there? Do we just change these laws to suit ourselves and our dreams that have nothing to do with addressing the real conditions that they live in?
So, for me, the law has addressed the situation that a girl child would find herself in and the acceptance in the past that let’s make a cut-off at 16 without being as tough as we would be for those that are below 12 for example. At 12, it doesn’t matter whether she said ‘yes’ or not, she’d then be treated as having been raped.
The advocacy that we are having now is that even at 16, let’s just treat them as rape. Now, is that going to achieve the objective that we’re clamouring for the girl child? I think that’s the question that should be answered by everybody who is interested in addressing this situation and I think the girl child herself must talk.
KATONGOMARA: We have established that child molesters getting community service sentences are being sent to perform this community service at schools, where there are hundreds more potential victims. Does that sit well with you?
TOMANA: What do you think? You see, the idea is to embarrass you, when we punish you the idea is to bring you down to mother earth. Now, if a whole man like me for example is seen cutting grass in front of a school and everybody is saying ‘that is a criminal’, don’t you think that reduces me to my correct kind of level? I’m not scary to anyone else because I’ve been reduced to my proper size. I’m no longer a threat to anyone because I’m actually under supervision, you know.
I think let’s look at it from the point of view that this is a punishment that’s serving its purpose because is there any record that if we make them mop in any school they pose any harm? Remember, when we punish people, we also expect to rehabilitate them, do you know that? They’re supposed to be rehabilitated, which means brought back to society and fit into the society as well. So I don’t see any harm in that.