A week ago, Prosecutor General Johannes Tomana had the opportunity to clarify his controversial utterances about the age of consent on ZiFM Stereo’s programme, The Platform hosted by Ruvheneko Parirenyatwa.
Listen to the interview by clicking the link below:
During the hour-long show, the Prosecutor General made reference to different factors of the law that we should be concerned about. Tomana made sure to emphasize that no matter how unhappy we are about certain laws, the best solution is to change them in parliament through the proper procedures provided in the constitution. Below, is a summary of his remarks on the radio show and our analysis of them that should be considered by activists, legislators, those in the legal field and any responsible Zimbabwean citizen:
- “Simple consent is admitted, in most cases consent is obvious for example where people are married…I want everybody to understand that we are talking rape here and in rape the catch word is consent. Consent simply means ‘yes I want to’.”
The above statement is his explanation on how consent is proven in the court. Tomana seems to mean that marriage is seen as consent to sex all the time thus dismissing the issue of marital rape which has remained a problem for a number of women. In as much as it is recognised that there are conjugal rights that married people are entitled to, there are several reasons why a person may refuse to have sex with their partner and these have been cited in arguments on marital rape. Tomana’s statement seems to insinuate no married woman can claim to have been raped by her partner if there are married.
- “It is accepted that women can start to want to have sex at a a very early age, in some cases as early as nine…and when a woman that young says yes the law is intervening and saying that ‘yes’ is invalid for the purposes of the law…I said that in this country, a woman who is below the age of 12, when she says yes…I guess a woman is also a girl…”
The use of the term woman in reference to a female who is below 12 years is rather misleading as the term woman is believed to mean that the female is and adult. A girl is a child. Failure to acknowledge the difference between a girl and a woman is the whole basis of the argument age of consent. It was important for him to also clarify the use of those terms as a person who holds one of the highest legal offices in the country. Besides being grammatically incorrect, the terms are not interchangeable and need to be used correctly legally.
- “Listen to me, the law knows that they can say ‘yes’ from as early as that age to as late as you want to get to. They can say ‘yes’ and they know what it means and they can say ‘no’ and they know what that means. I am saying that for purposes and in the interest of looking after the girl child, this is how our law has responded to this problem.…girls under the age of 12, the responsibility has been placed on men not to sleep with them. If you sleep with them, the fact that they said ‘yes’, it doesn’t matter how you are able to prove it to what extent you are able to prove it, the law is not going to recognise that ‘yes’. You will be treated like a rapist.”
This was an important point because in various debates, there have been arguments that some girls insist on having sex with older men. Tomana’s statement puts it that whether the girl says ‘yes’ or ‘no,’ it is the responsibility of the man involved to protect the girl from sexual intercourse because her view is null and void. This means that whether a girl consents to have sex with a man, as long as she is under 12, she has no right to have sex whatsoever. Whatever a girl may have said cannot be used in a man’s defence as long as she is under 12. The case will be treated like a typical case of rape.
- “That is the field for law reform…the law as it is today, our obligation is to understand it, to apply it and to uphold it until it has been amended and reformed. People who believe that it is important for us for example to raise the age of consent for argument’s sake to 21 years, if they are able to convince parliament for example, and parliament made a law that says the age of consent is now 21 years…that will become the law and our obligation is to enforce it”
This response only served to emphasize the need for law reforms if we want those charged with rape to get stiffer sentences. This made it clear that as long as there are no reforms, then the 1-year sentences and 60 days of community service handed out for rape are going to continue. Currently, there are over 400 laws that are yet to be aligned to the new constitution and concerns have been raised over the delays.
Recently, concerns were raised on whether Justice Minister Emmerson Mnangagwa will have time for the re-alignment of laws since he is also the country’s Vice-President and sometimes assumes the role of acting President. In another interesting twist, the Constitutional Court has stated that Vice-President Mnangagwa is not the Justice Minister. Rather, he only oversees the administration of the ministry. This means that there is currently no one who is fully responsible for the ministry. It then makes it even more difficult to identify the person who is responsible for the process of re-aligning the laws.
- “If she is below the age of 16 and you know it, you are punished in the manner that actually takes into account that consent to a certain extent, that’s why the sentence is mitigated.…And let me also add that she may actually be below the age of 16, but if the court actually is convinced that the man did not know that she is below the age of 16, this is our law; that man will be acquitted, that consent will be accepted…If we want to change that, we do that.”
This interpretation clearly shows that if a man sleeps with a girl below the age of 16, he is only guilty if he fails to prove his ignorance of the girl’s actual age. This means that any man who knowingly sleeps with a girl below the age of 16 but manages to prove that he did not know, he will not be punished by the law. This means that all girls below the age of 16 are not entirely protected by the law.
Therefore the law also does not protect girls who may not know their actual age because they do not have proper identity documents. The law does not protect girls who may give a false age to men because they want to indulge in sex for different reasons. The law can only protect girls who can prove beyond any reasonable doubt that the accused man knew their actual age. How many girls below the age of 16 are capable of doing that?
These, among other points made by the Prosecutor General on The Platform Radio Show, expose the loopholes that we have in our justice system. It is now clear more than ever that we need to reform statutory rape laws as a matter of urgency if we are to rely on them to protect our girls and women against all forms of abuse.
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