THE State V Kwanele MOYO

### Preamble
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HB 210/23
HCBCR 132/23
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THE STATE

Versus

KWANELE MOYO

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 12 OCTOBER 2023

KABASA J:-		The accused, a 26 year old male was charged with contravening section 70 of the Criminal Law Code, [Chapter 9:23].  He pleaded guilty to the charge.

The allegations or the facts agreed on were that on 4 February 2022 the accused, who was in love with the complainant had sexual intercourse with her once with her consent.  The complainant slept at the accused’s home and went back home the following morning.  Her sister-in-law asked her where she had been and she confessed that she had been with the accused.  The matter was then reported to the Police.

The complainant was born on 25 November 2007.  As at 4 February 2022 she was 14 years 3 months.

Section 64 (2) of the Criminal Law Code provides that:-

“(2)	A person accused of engaging in sexual intercourse or other sexual conduct with a young person above the age of twelve years but of or below the age of fourteen years shall be charged with rape … and not with sexual intercourse --- with a young person, unless there is evidence that the young person –

(a)	was capable of giving consent to the sexual intercourse … and

(b)	gave his/her consent thereto.”

I queried with the learned Magistrate why the accused was charged with contravening s70 in light of the clear provisions of s64 (2).  The learned magistrate conceded that it was an oversight on her part.

Section 2 (3) of the Criminal Law Code states that:-

“Where the determination of the age of a person is relevant for the purposes of this Code, a person shall be deemed to have attained a specified age on the commencement of the relevant anniversary of the day of his or her birth.”

It follows therefore that the complainant was 14 years old as she was yet to turn 15.  She was turning 15 on 25 November 2022.  The appropriate charge was therefore rape as defined in section 65 of the Criminal Law Code.

The use of the word “SHALL” is peremptory.  What it means therefore is that the accused must be charged with rape and if it is then shown, through evidence, that the girl could consent and did consent, the conviction would then speak to what was proved.

Whilst this case specifically deals with the appropriate charge where the child is above the age of twelve but of or below the age of fourteen, I  felt compelled to refer to the Constitutional Court decision in Kawenda v Minister of Justice, Legal and Parliamentary Affairs & 2 Others CCZ 3/23 a matter which was brought on appeal against a High Court judgment which dismissed the appellant’s application challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.  The thrust of the argument lay in the definition of a child or young person in that s 61 of the Criminal Law Code defines young persons as those under the age of sixteen, leaving those in the sixteen to eighteen year bracket without the protection accorded to young persons by s70.

In dealing with this appeal the Constitution Court defined the issue before it as:-

“… whether the law in section 70 and other related sections of the Code which create offences prohibiting extra marital sexual intercourse and the performing of indecent acts with young persons, as read with section 61, are in conflict with section 81 (1) and (2), section 70, section 56 and section 53 of the Constitution.  Put differently, the issue is whether the impugned law is inconsistent with the Constitution as alleged or at all.”

The court held that the impugned law was the only law that purports to protect children from sexual exploitation in this jurisdiction.  Section 81 (1) (e) of the Constitution speaks to the protection of every child from sexual exploitation.  By excluding those children between the ages of 16 and 18 s70 fell short of the Constitutional provision as regards the protection of children.

MAKARAU JCC proceeded to say:-

“The effect of the impugned law is not only to fail to protect those children that are between sixteen and eighteen, it particularly fails to protect all children in child marriages.  The impugned law denies some children the protection that the Constitution demands.  It cannot therefore ‘disobey’ the Constitution and hope to remain Constitutional.”

After examining the relevant Constitutional provisions and the import of section 70 of the Criminal Law Code, the learned JCC went on to say:-

“Whilst it presents itself clearly to me that the impugned law is inconsistent with the Constitution, in that it fails to afford any protective cover from sexual exploitation as demanded by section 81 (1) (e) of the Constitution to children between sixteen and eighteen and to children in child marriages the appropriate relief to grant in this appeal caused me some anxious moments.”

I am of the considered view that these anxious moments were due to the fact that the learned JCC acknowledged that:-

“The protection that is afforded to all children below sixteen, whilst it can be improved upon, is not unconstitutional.  It must be saved in any new law that the respondents will have to put in place to obey the demands of the Constitution.

On the other hand, the law that affords a defence to persons accused of having sexual intercourse with children on the basis that they are married to such children is unconstitutional and unconscionable and must be struck down immediately.  It cannot be saved even if the respondents are given time before the order of the constitutional invalidity takes effect.”(italics my emphasis)

The learned JCC could however not save and preserve one part of the law and declare part of the same law immediately invalid.  It was not severable.

Having said that the court went on to say:-

“The adjustments required to align the provisions of the Code with section 81 (1) (e) of the Constitution appear to be fairly straight forward.  They would entail, firstly, the amendments of the definition of “young persons” in section 61 of the Code to include all children as defined in the Constitution and secondly, the deletion of the word “extra-marital” in section 70 (1) (a) of the Code.”

Allowing the appeal against the High Court judgment, the Constitutional Court proceeded to make the following order:-

“(1)	…

(2)	The definition of “young person” in section 61 of the Criminal Law Codification and Reform Act [Chapter 9:23] is unconstitutional and is hereby set aside.

(3)	Section 70, 76, 83 and 86 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are declared unconstitutional and are hereby set aside.

(4)	The orders of Constitutional invalidity made in paras (2) and (3) above are hereby suspended for 12 months from the date of this order to enable the respondents to enact a law that protects all children from sexual exploitation in accordance with the provisions of section 81 (1) (e) of the Constitution of Zimbabwe.” (italics my emphasis)

Section 70 was therefore declared unconstitutional and set aside but such was to be held in abeyance for 12 months so the respondents could address the cause of such invalidity.  With the expiration of those 12 months section 70 as well as the other sections affected were unconstitutional and set aside.  Put differently there was to be no section 70, 76, 83 and 86 unless the respondents acted within the 12 month period, and consequently a conviction or a charge could not competently stand on a provision that was set aside.

The respondents did not heed the court’s call.  The order was granted on 25 May 2022.  Twelve months lapsed in or around May 2023 and with that the order declaring section 70 unconstitutional became effective.  Section 70 of the Code was accordingly set aside.

Whatever the reasons for not attending to the issue clearly articulated in the Constitutional Court’s order are, the inescapable reality, sad though it is, is that after May 2023 a charge under section 70 is not competent.  How can one be charged under a non-existent law?  This in itself becomes unconstitutional.

The learned JCC agonised over the order to grant and ultimately opted to suspend its operation for a period of 12 months so as to ensure the protection afforded to the under 16s was not affected in between the setting aside of section 70 and the amendments to be effected in order to bring the law within the ambit of section 81 (1) (e) of the Constitution. The protection of the children already covered in s61 of the Criminal Law Code would not have been removed but the required amendments would have now included the other children who had hitherto been excluded. Sadly the very scenario MAKARAU JCC wanted to avoid has happened due to the inertia by the respondents in failing to timeously attend to the required amendments in order to bring the provisions of the Criminal Law Code within the ambit of the Constitution and thereby removing the cause of the complaint leading to the declaration of the invalidity of ss70, 76, 83 and 86 of the Code.

Had the 12 month period been observed the quandary that judicial officers are faced with would have been obviated. Quandary it is as the police are still arresting and charging offenders under s70 well after the expiration of the 12 month period. There is no other interpretation or construction to what the Constitutional order provides that would allow section 70 to stand and for “offenders” to face charges under the said section beyond the 12 months following the Constitutional Court order.

Regrettable as the consequences of non-action certainly are, the reality cannot be wished away.  The solution lies in the respondents doing that which the court said ought to be done and thereafter allow for the prosecution of offenders who sexually exploit young persons, whose ages would then be provided for in such amendment.

I felt compelled to consider the Kawenda decision because whilst the accused in casu was supposed to face a rape charge, if evidence showed ability to consent and that consent was given, the court would not be able to return a guilty verdict under section 70 if the offence was committed after the lapse of the 12 month moratorium accorded by the Constitutional Court. It may not be so in casu, given that the offence is said to have been committed in February 2023, about 2 or so months shy of the 12 month moratorium.

With that said, for purposes of the matter I am seized with, the proceedings are not in accordance with real and substantial justice and in terms of section 29 (2) (b) (ii)  of the High Court Act [Chapter 7:06] I propose to quash the proceedings.

In the result I make the following order:-

1.	The proceedings be and are hereby quashed.

2.	The matter be and is hereby remitted to the court a quo for a trial de novo before a different Magistrate.

Kabasa J………...................................................................

Dube-Banda…………………………………………….. I agree