Introduction
One prevalent crime that
is common not only in Zambia, but Southern Africa and other African countries
is sexual violence against children. This includes offences such as defilement,
indecent assault and sodomy. This article seeks to look at Zambia’s framework
in relation to these offences.
Defilement
Defilement is defined in section
138, as read together with section 131 of the Penal Code, Chapter
87 of the Laws of Zambia, as carnal knowledge of a child below the age of
16. It is worth mentioning that the Penal Code originally provided that defilement
was carnal knowledge of the girl child before it underwent progressive
amendments relating to sexual offences (which shall be discussed in this
article). These amendments were brought about through the Penal Code
(Amendment) Act No 15 of 2005.
Defilement is punishable
by a minimum of 15 years imprisonment, extending up to life imprisonment. Attempted
defilement ranges from fourteen years to life imprisonment.
The 2005 amendments,
which have already been discussed, introduced an offence related to defilement.
This offence being a prescription of defilement as a cure for a disease. It is
proscribed under section 138(3) of the Penal Code, as amended by Act
No 15 of 2005. Thus, should one be discovered prescribing defilement as a
cure for an ailment, they shall face a sentence of no less than fifteen years
and up to life imprisonment. Though not stated explicitly in the provision, the
sentencing provided for one who prescribes defilement of a child adheres to the
principles stated in section 21(1) (d) of one procuring another to
committing an offence (and thus adjudged to be a party to that offence).
In summation, defilement
has the following elements:
1.
Carnal
knowledge, which is defined in the
case of R v Yohani Mporokoso [1939] 2 NRLR 152 as the penetration of the
vagina of a woman or girl
2.
With a
child, who, according to section
131, is below the age of 16.
The question that arises
from this is what the law provides for children that molest their fellow
children. This matter is addressed in section 138(4) of the Penal
Code, which provides that where a child above the age of twelve
has carnal knowledge of another child is liable to community service or
counselling as the court may determine in the best interest of both children.
With that discussed, it
is necessary to look at what defences one can employ when charged with
defilement.
The sole defence to
defilement is reasonable belief that the victim was of the age of 16 or older.
In the Penal Code, before the 2005 amendments, this defence was provided
for in section 138 (2) of the Penal Code. The 2005 amendment removed
that defence. However, the Penal Code (Amendment) Act No 2 of 2011 includes
the defence in the subsection one of the Act. It must be stated concerning this
defence that it is the duty of the accused to show that he or she did indeed
believe that the victim was above 16 years old. Simply being told by the victim
that they are 16 years old is not a valid defence. This is espoused in the
Supreme Court case of Masautso Banda v the People [2024] ZMSC 3. Brief
facts of the case were that the accused defiled a girl below the age of 16. In
his defence, he stated that the girl told him that she was 16 years old. The trial
court, upon looking at the girl, concluded she was below the age of 16. On
appeal, the appellant argued that the court erred in not considering what the
girl told him. The court, in uphold the conviction, stated the following in
pages J6-J7:
“The
provisions of section 138(1) as amended require that a person seeking to invoke
the defence had ‘…reasonable cause to believe, and did in fact believe the
child…was above the age of 16 years.’ In advocating his defence, the appellant did
not testify that he had such a belief and merely was told by the prosecutrix
that she was 16 years old.” (emphasis
added)
Thus, for one to claim
the defence, they must satisfy the court that they did have reasonable cause to
believe that the victim was above the age of 16.
With defilement
discussed, it is necessary to look the offence of indecent assault.
Indecent assault
Indecent assault is
proscribed in section 137 (1) of the Penal Code, as amended by Act
No 15 of 2005. There, it is provided that any person who indecently
assaults a child or any person shall be liable for imprisonment of between
fourteen to twenty years imprisonment. It must be mentioned that when it
relates to indecent assault of a child, as provided for in section 137(2),
one cannot rely on the defence that a child consented to being assaulted. This
provision is worth noting because, as shall be discussed later, indecent
assault only amounts to such when there is no consent. The rationale for
consent not being a defence for children stems from the understanding that
children do not have the mental capacity to consent to sexual activity.
Subsection 3 of the
provision criminalises the act of one going to the veranda or top of a building
for purposes of gazing at a person’s undress or for purposes of indecently
assaulting or annoying a person. The penalty for committing this offence is imprisonment
for one year.
The 2005 amendments
brought one fundamental change when it comes to the definition of indecent
assault. The amendment extended indecent assault to also apply to males. The
Act initially provided that one who indecently assaults a girl or woman.
Through the 2005 amendments, the law is now inclusive of both males and
females.
The Penal Code does
not expressly define indecent assault but that courts of law have taken time to
define what amounts to indecent assault. The elements of indecent assault are
outlined in the case of Aswell Banda v the People [2019] Appeal No 114 of
2018 CAZ, the Court of Appeal outlined the elements of indecent assault. In
page J8-J9, the elements were the following:
1.
An
assault
2.
That is
sexual or indecent
3.
Without
the consent of the victim (if the victim is not a child)
The Court went on to
define assault as touching another person without their consent. Indecency was
elaborated upon in the case of Damian Mwanza v the People [1976] ZR 154 (HC).
In that case, the High Court defined what would amount to indecent assault. Brief
facts of that case were that the accused was a security guard at a mall. He then
did a search on a woman whom he suspected of stealing items from the store. In
searching the woman, he ordered that the woman unclothed herself and that an
investigation be done on her. This led to the accused being charged with
indecent assault. The issue in dispute was whether there was any sexual act
that was done towards her. The Court stated the following,
“I take
the view that ‘indecency’ in this context has a wider meaning than pure sexual
indecency. It is my view that to construe the word "indecency" so
narrowly that an offence under this section cannot be made out unless there is
explicit evidence of what we would call ‘sexual desire’ is to construe the
section wrongly in Zambia today…the
common practice is known that men do not search women just as women do not
search men: To break that custom in Zambia in these circumstances (and probably
in any circumstances) is to my mind indecent.”
Thus, from this case, it
can be construed that indecent assault is an assault that, in Zambian culture,
would be considered inappropriate. The inappropriate act need not be sexual.
All that the law requires is that the act be inappropriate in the Zambian
context.
It must be mentioned that
carnal knowledge is not an element of indecent assault. Where an act of
indecency leads to carnal knowledge, it shall then amount to rape or
defilement. This was held in the case of Grace Manase Ndhlovu v the People
[2015] ZMSC 72, when the Supreme Court quashed the charge of indecent
assault of a boy and replaced it with defilement due to the facts clearly
showing that the accused had carnal knowledge with the boy.
With reference to the Aswell
Banda case (supra), one shall not be liable for indecent assault if they
can show that the other party consented to being touched. This defence, as the
court stated, does not apply to matters in which a child is indecently
assaulted.
With everything
considered, it is necessary to look at the offence of sodomy.
Sodomy and Indecent Acts
between Persons of the Same Sex
The term “sodomy” is not
found in the Penal Code but is a phrase that is used by police officers when
charging one with an offence under section 155 of the Penal Code. Sodomy
is defined in Black’s Law Dictionary (8th edn, Thomson West 2004),
page 4345 as either oral or anal copulation. It goes on further to state
that it can also be referred to as a crime against nature or an unnatural
offence. It is for this reason that the provision in section 155 is
referred to as sodomy.
For purposes of this
article, sodomy shall only be looked at in relation to sexual violence against
children.
Having carnal knowledge
with a child against the order of nature is proscribed in section 155(i) of the
Penal Code. Section 155(ii) and (iii) proscribe one either causing a child
to have carnal knowledge of an animal or allowing a male to have carnal
knowledge of a child against the order of nature. Section 155 further provides
that the penalty for this is imprisonment for a minimum of twenty-five years
and a maximum of life imprisonment.
Prior to the 2005
amendments, section 155 did not provide for sodomy against children. Thus,
there was only criminal liability for sodomy that one adult had with another.
The 2005 amendments brought in offences against children.
The 2005 amendment expanded
an offence which was referred to in the side notes as indecent assault against boys
under the age of 14. Through the amendment, that offence was expanded to cater
for: 1) indecent practices between male adults and children, regardless of age;
and 2) provide for indecent practices between female adults and children. As
stated earlier, the focus will be in relation to children.
Section 158 (1) provides that any male, either in public or private, who
commits any act of gross indecency with a male child or person, or procures or
attempts to procure a male child or person to commit acts of gross indecency
with either himself or another male child or person shall be liable for
imprisonment of a minimum of seven years and a maximum of fourteen years.
Section 158 (1)
proscribes two things. Firstly, it proscribes the public or private acts of
gross indecency with males of the same sex. In relation to children, it
proscribes a male committing gross indecency with a child. Secondly,
it proscribes a male procuring a male child or adult, privately or publicly, to
commit acts of gross indecency either with himself or another male. Concerning
the first instance, a male is actually doing an act of gross indecency with
another male. In the second instance, one procures such acts to take place. To
procure means to initiate certain activities to lead to a particular event. An
illustration of this would be a male adult locking himself in a room with a boy
and doing particular actions to arouse the boy to do certain sexual acts with
him.
Section 158 (2) has the same provisions as subsection one except in
this case, it is where a female does gross acts of indecency with another
female child or adult.
Section 158(3) provides for where the indecent practices occur among
fellow children of the same sex. It provides, similar to the subsection on
defilement, that such children are to be referred to community service or
counselling, depending on what the court deems to in the best interest of the
child.
From what has been
stated, the elements of indecent practices with persons of the same sex are:
1.
The
individuals involved must be of the same sex.
2.
A gross
act of indecency must be committed.
Two authorities shall be
referred to, one of a Zambian jurisdiction and another from Malawi, to best
understand this scenario.
In the already cited case
of Aswell Banda v the People (supra), the accused was charged under
section 137(1) of the Penal Code of indecent assault of males. The
court, in assessing whether it amounted to indecent assault looked at whether
there was lack of consent from the males involved. Upon discovered that the
males in question did in fact consent to the acts, the charge was changed from
indecent assault to indecent practices between persons of the same sex under
section 158(1). The court did not address its mind as to the distinction
between section 137(1) and section 158(1) but it can be inferred that the
latter provision relates to acts of indecency with one of the same sex,
regardless of whether there was consent or not.
There is no Zambian case
that defines what would amount to “gross” acts of indecency. The framers of
section 158, by adding the phrase “gross” to indecency may have intended that
the acts in question are not only indecent but have a high degree of indecency
attached to it.
With all the offences of
sexual violence against children discussed, it is necessary to look at the
necessity of corroboration for one to be considered briefly.
Corroboration
Corroboration, as defined
in the Supreme Court case of Emmanuel Phiri v the People [1982] ZR 77, refers
to any independent evidence that confirms the testimony of a witness that the
offence did occur and that it was the accused that committed it. It was also
held that for all matters relating to sexual offences it must be corroboration
both to the identity of the person as well as the identity of as attesting to
the action itself other.
A lot more can be said
about corroboration but for purposes of this article, corroboration all that
shall be stated is that corroboration of the evidence of the victim must occur
before one is held liable for any sexual offence against a child.
Assessment of Zambia’s
Laws on Sexual Violence Against Children
Now that Zambia’s laws in
relation to sexual violence against children have been discussed, it is
necessary to assess the current law, especially in relation to other
jurisdictions.
Defilement
As noted earlier, the provisions
in relation to defilement were amended in 2005 so as to include boys as victims
of defilement. Though progressive, as discussed earlier, the element of
defilement is “carnal knowledge”. Carnal knowledge is not defined in the Penal
Code but in the case of R v Yohani Mporokoso (supra) carnal
knowledge refers to the penetration of the vagina. This proves problematic for
male victims of defilement in this way. In defilement cases of girls, the girl
is the victim and the one whom penetration of the vagina has occurred to. For
purposes of evidence, she can be assessed to see if there was in fact penetration.
In defilement cases of boys, though the boy is the victim, the one who has been
penetrated is the woman, the perpetrator. Given that the woman would have had
likely more than one sexual encounter as compared to the boy, the high
unlikelihood of the woman giving evidence she was penetrated.
For the law to remedy
this, it would be wise to look at how England has evolved in defining carnal
knowledge, given that our law is based on the laws of England.
The current law that
deals with defilement in England is the Sexual Offences Act of 2003, Chapter
43 of the Laws of England. In section 5 of that Act, sexual activity of a
child below the age of 13 is proscribed. Rather than using the language “carnal
knowledge”, the provision simply states any person who penetrates a child
through the vagina, anus, or mouth is liable for rape of a child.
From the above Act,
sexual activity with a child includes all scenarios and uses the phrase
“penetration” rather than “carnal knowledge” so as to cater for all scenarios.
Another defect with the
law concerning defilement in Zambia is lack of a provisional exception as it
relates to persons who are one year or two years older than 16 who have sexual
relations with someone who is slightly below the age of 16. Though there is the
clause in section 138 which provides reasonable belief in a child being older
than 16 as a defence, it is still insufficient, because defilement is defilement,
regardless of whether the other party consented or not. In the Malawian case of
R v Gondwe (Order on Review) (Criminal Review 3 of 2021) [2021] MWHC 102,
the Malawian High Court, in dealing with a matter where an eighteen year-old
boy was accused of defiling a fifteen year old boy, stated in page 6 that the legislature
should review their provisions in relation to defilement as the offence is
intended to prevent grown men from taking advantage of young girls, and not
punish young boys who are having consensual sex with slightly younger girls. The
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, of
South Africa, provides in section 15 that one will not be liable for child rape
if at the time of the offence, they were less than 16, or were 16 or 17, or at
most, two years older than the alleged victim. It is prudent that Zambia adopt
a similar provision, so as to ensure that the provisions on defilement do what
is necessary in the interest of justice.
A defect also worth
noting as it relates to defilement is concerning a child having sexual relations
with their fellow child. Though it can be argued by some that it is a good
provision in that it protects child perpetrators from suffering harsh
punishment, the provision there undermines a fundamental goal of criminal law,
which, as discussed by learned author Simon Kulusika in his book Criminal
Law in Zambia: Doctrine, Theory and Practice (Chiribwa Publishers,
2020) in page 5 is to protect society from people that are dangerous and protect
the vulnerable. It is well known that some children can mature by the age of 15
and take advantage of girls below the age of 12 for instance. This has been
noted in a study done in South Africa. It was published in the Journal of
Epidemiology and Community Health (1979-), September 2016, Vol. 70, No. 9
(September 2016), pp. 910-916. In there, it was noted that children
reported sexual abuse from peers or intimate partners. Considering that fact,
it would be prudent that law gives the court the discretion to give a custodial
sentence, especially when it is obvious in the facts that the child was very
abusive of the other child.
Indecent assault
The current law, with the
changes the 2005 amendment brought is very progressive in ensuring that children
are protected from indecent assault.
Sodomy and Indecent
Practices with Persons of the Same Sex
The current provisions in
the law were brought forth by the 2005 amendment with the aim of safeguarding
children from sodomy and indecent acts done to them by persons of the same sex.
That being the case, the provisions cater for both consensual and
non-consensual acts between persons of the same sex and sodomy. In jurisdictions
such as England and South Africa, all matters of sexual relations against children
are in one particular section and are all encompassing, as was noted earlier
about how the law in England defines sexual relations with children to include
sodomy and vaginal sex. By doing so, Zambia’s legislation would also provide
for appropriate minimum and maximum sentences.
Conclusion
Zambia has made many
strides as regards protection of children from sexual violence. That being the
case, there is still more that needs to be refined with Zambia’s law if
children are to be protected. Furthermore, there is need to enforce the law if
Zambia is to see a reduction in cases of violence against children.
BIBLIOGRAPHY
Table of Statutes
The Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, South Africa
The Penal Code, Chapter 87
of the Laws of Zambia
Sexual Offences Act of
2003, Chapter 43 of the Laws of England
Table of Cases
Aswell Banda v the People
[2019] Appeal No 114 of 2018, CAZ
Damian Mwanza v the
People [1976] ZR 154 (HC)
Emmanuel Phiri v the
People [1982] ZR 77
Grace Manase Ndhlovu v
the People [2015] ZMSC 72
Masautso Banda v the
People [2024] ZMSC 3
R v Yohani Mporokoso
[1939] 2 NRLR 152
Books
Kulusika SE, Criminal Law
in Zambia: Doctrine, Theory and Practice (Chiribwa Publishers, 2020)
Journal
Journal of Epidemiology
and Community Health (1979-), September 2016, Vol. 70, No. 9 (September 2016),
pp. 910-916
Dictionary
Black’s Law Dictionary (8th
edn, Thomson West 2004)
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