Picture used for illustrative purposes. Source:The India Saga
ZLDC recommendations on sexual related offences
Our first weekly article last week focused on the mandate of the ZLDC, how the law review is undertaken and particularly how the review of the Penal Code Act and Criminal Procedure Code Act was undertaken. Today’s article addresses sexual related offences namely bigamy, rape, defilement, child marriage and abortion. Let’s look at each one in turn.
Bigamy: Before we discuss the offence of bigamy lets us look at the law on marriage in Zambia. One can contract a valid marriage under the Marriage Act or under customary law. A person may marry under statute (the Marriage Act), by giving notice to the Registrar of Marriages and fulfilling other requirements under the Act. Marriages contracted under the Act are voluntary monogamous unions/marriages of one man and one woman. Marriages contracted under customary law on the other hand, follow each tribe’s customary requirements and practices most of which include family negotiations and the payment of dowry. Customary marriages remain potentially polygamous, meaning one (traditionally men) can marry more than one wife. It is an offence under the Marriage Act and under the Penal Code for a person married under the Act to enter into a second marriage whether statutory or cutsomary or for a person married under customary law to later marry a third person under the Act. The offences are punishable with five years imprisonment. In the PC the offence is called bigamy.
In the review the ZLDC observed that similar criminal conduct was provided for in the PC and in other Acts and that this has resulted in conflicting penalties. The ZLDC therefore recommended that all criminal offences save regulatory offences should sit in the PC and duplicate offences such as bigamy should be removed from the PC but the offence remains in the Marriage Act.
Rape: Having sexual intercourse with a woman without her consent or with her consent obtained by force, coercion or personating the husband is a crime with a mandatory minimum sentence of 15 years imprisonment. Some stakeholders submitted that this offence should be extended to the husband-wife relationship. The ZLDC observed that “whilst the need to explicitly criminalise marital rape is recognised, stakeholders were of the view that this would compromise the sanctity of marriage. The ZLDC therefore recommended that sensitisation on harmful cultural practises, and the occurrence and impact of sexual violence within intimate partner relationships should be carried out.”
Defilement and Child Marriage: The law protects children from sexual abuse and exploitation. It prohibits defilement and defines it as having unlawful sexual intercourse with a child below 16 years. Stakeholders expressed concern with the wording of the provision in the PC. The wording in section 138 (1) of the PC states that ‘Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and is liable to imprisonment for life’. It excludes sexual intercourse by a husband with a(his) child bride within a customary marriage from being considered defilement. A position that has been affirmed by the Courts. In the 1949 case of R v Chinjamba (which has not been overturned) in which the Court had to determine if a villager who had married a girl who was under the age of sixteen and the village headman who knew of this development but did not disclose nor report the matter to the authorities should be held liable.The Court affirmed that one cannot defile a girl lawfully married to him under customary law. Stakeholders submitted that this perpetuates early child marriages .and further that Zambia should criminalise child marriage. ZLDC observed that “whilst the need to criminalise child marriage is recognised, there is need to first determine the minimum age for customary and statutory marriage in the Marriage Act.”
Derogatory Terms: The ZLDC found that the PC and CPC use derogatory words and phrases contrary to national and international human rights standards such as the Mental Health Act of 2019 and the United Nations Convention on the Rights of Persons with Disability. The ZLDC therefore recommended that words such as “idiot”, “imbecile”, and others like prostitute, rogue, vagabond be replaced with more appropriate terms.
Abortion: Stakeholders submitted that abortion be decriminalized or changed from a felony (a serious offence) to a misdemeanour (a less serious offence) owing the challenges women face in procuring a lawful abortion in accordance with the Termination of Pregnancy Act. In light of the constitutional provisions on the right to life the ZLDC did not make any recommendations on abortion. It is a question best determined by the Zambian public during the constitutional review process.
Our Article next week is titled ‘Even Using Bad Words is a Crime? Decriminalising petty Offences’ Don’t miss it.
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