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NATIONAL ASSEMBLY HANSARD 28 MAY 2024 VOL 50 NO 55

PARLIAMENT OF ZIMBABWE

Tuesday, 28th May, 2024

The National Assembly met at a Quarter-past Two o’clock p.m.

PRAYERS

(THE HON. SPEAKER in the Chair)

ANNOUNCEMENTS BY THE HON. SPEAKER

ERROR ON THE ORDER PAPER

THE HON. SPEAKER: I have to draw the attention of the House to an error on today’s Order Paper where the date reads as Thursday, 23rd May instead of Tuesday, 28th May, 2024.

SPEAKER’S RULING

ANNOUNCEMENT OF CCC APPOINTMENTS TO VARIOUS PORTFOLIOS

THE HON. SPEAKER:  On Thursday 15th February, 2024, I made an announcement in the House on the appointment of several Members of the CCC Party to various portfolios in Parliament.  The announcement was based on a letter authored by one Mr. Jameson Timba, purporting to be the interim leader of the CCC Party. 

On reflection, I should not have acted upon that letter as facts now thereof  before me show that Jameson Timba had no locus standi to represent a party in such a manner as  I will outline below;

  1. Jameson Timba was recalled from the Senate by the CCC Party on 7th November, 2023, the party which he purported to represent as the acting leader and administrator.
  2. Jameson Timba challenged the recall in the High Court under case number HCH 6684/23 with other former Members of the CCC Party and lost the court case. He was also among the former Members of the CCC Party whom the High Court barred on 9th December, 2023, from contesting the 3rd February, 2024 by-elections under the CCC Party following Sengezo Tshabangu’s application to block them from participating in the polls under the CCC banner. 

Considering that Jameson Timba had been recalled by the same CCC Party he was purporting to represent, and that he was also banned by the courts from contesting under the banner of the same CCC Party, his communication to Parliament and the appointments made thereafter, are therefore null and void.  Accordingly, I am rescinding the announcement on the 15th of February, 2024 and referring the matter back to the CCC Party to make the appropriate appointments. 

SECOND READING

ADMINISTRATION OF ESTATES AMENDMENT BILL [H. B. 3, 2024]

First Order read: Second Reading: Administration of Estates Amendment Bill [H. B. 3, 2024].

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Thank you Mr. Speaker Sir, and good afternoon.  It is a great honour to rise and present my Second Reading speech on the Administration of Estates Amendment Bill.  The Bill before you today is necessary as it seeks to provide for the better and autonomous administration of the office of the Master of the High Court to enable the office to better serve the people of Zimbabwe efficiently and in a decentralised manner.    

          Mr. Speaker Sir, accountability and efficiency are necessary for such an office whose responsibility amongst others is to cater for our widows, widowers and orphans.  Clause 3 of the Bill introduces the setting up of a Board which will govern the Office of the Master.  This Clause provides that the office is an office or record whereby all records are kept and may be transferred to any other place under the direction of the Master, thus ensuring accountability within the office.

          Mr. Speaker Sir, to ensure efficiency through decentralisation, documents which were required to be lodged with the Master can also be lodged with the Assistant Master in provinces, which goes to show that the public outcry has been heard.

          The Clause also provides for a new section, Section 4(a), where the aforementioned Board and the appointment is established.  To that end, I will move certain amendments to that measure to provide for the incorporation of the Deputy Master and one Additional Master into the Board as ex-officio members given the specialised and technical nature of the office’s functions whereby the incorporation of inside senior and experienced members will certainly add value to the Board’s deliberations due to their better understanding of the organisational culture, technicalities and operational dynamics.  Their insight will be valuable to enable better service delivery.

          Mr. Speaker Sir, the functions of the Board are also provided for which include administering and supervising the Office of the Master, the appointment of members of staff and dealing with complaints or grievances made by or against members of the office among others.  In light of the above, the Board is not subject to the control or direction of any person or authority other than for purposes of auditing.  However, the Bill does empower the Minister to give policy directions to the Board in his capacity as a policymaker, but within the scope of the Minister’s Portfolio and subject to the specifications of Section 4D which include the Minister giving the Board general directions relating to the policy, the Board is to observe in the exercise of its functions as the Minister considers necessary in the national interest and not be inconsistent with any provision of the Act and issued in good faith.

          The issue of accountability and transparency is also buttressed in the Bill under section 4 (c) which provides that the office shall submit annual reports to the Minister who shall lay the reports before Parliament.  As oversight is a constitutionally mandated function of the House, this will allow the House to assess and scrutinise the implementation of the Act once enforced as well as the application of the budget and the effective management and administration of the office.  In addition, the appointment of an auditor to examine the office’s books of accounts speaks to the office being held accountable in its operations as failure to produce required documents to the auditor is deemed a criminal offence under the Bill.

          Mr. Speaker Sir, for an office to be operational sources of funds are an integral part and the Bill provides that the office’s source of funds will include funds from Treasury and fees that accrue to the office in the course of its operations.  As a Government we have found it necessary for the Office of the Maser to be administered autonomously and in a decentralised manner to ensure better service delivery nationwide and that no one is left behind in regards to accessing the services the Office of the Master offers.  Thus, within the allocation of funds from Treasury and fees accrued from operations, the burden on the ordinary citizen will not be increased contrary to the general perception.

          Mr. Speaker Sir, currently in the principal Act conditions of service of members and employees of the Master’s Office are governed by regulations made by the Judicial Service Commission.  However, this Bill will now incorporate and empower the Minister with specific power to make regulations as an autonomous office as it would be necessary were this Bill is passed in the House.

          In consideration of the above, I urge the Hon. Members to support the Bill as it is the right step towards innovation and the ease of doing business for better service delivery within the Office of the Master of the High Court.  I now move that the Bill be read a second time Mr. Speaker Sir.

          HON. DR. MUTODI: Thank you Mr. Speaker Sir.  I will present the report of the Portfolio Committee on Justice Legal and Parliamentary Affairs with respect to the public hearings which were carried out in connection with the Administration of Estates Bill.

Introduction

Mr. Speaker Sir, Section 141 of the Constitution requires Parliament to engage the general members of the public in its legislative processes and ensure that all interested parties are consulted about Bills being considered by Parliament. In fulfillment of this constitutional obligation, Parliament, through the Portfolio Committee on Justice, Legal and Parliamentary Affairs together with the Thematic Committee of Human Rights held public consultations on the Administration of Estates Amendment Bill to gather the views of the people from the 6th to the 11th of May 2024.

The Bill which was gazetted on the 1st of March 2024 seeks to amend the Administration of Estates Act to improve the efficiency and independence of the Office of the Master of the High Court, ultimately aiming for a smoother and more streamlined administration process.

Background to the Bill

The introduction of the Bill stems from a desire to address shortcomings in the current system. This Bill proposes a significant reform by establishing a new, dedicated part that introduces a Board consisting of 9 members. This aims to empower the Office with greater autonomy and enhance its administrative efficiency. This transformation will ultimately enable the Office to serve the people of Zimbabwe in a more streamlined and decentralized manner, ensuring a smoother and more accessible process for estates administration.

Methodology

In partnership with SADC Parliamentary Forum, the Committee was split into two teams covering all the country’s 10 provinces making use of 10 venues. Team A covered Mashonaland West, Midlands, Bulawayo, Matabeleland North and Matabeleland South while Team B conducted public hearings in Mashonaland Central, Harare, Mashonaland East, Manicaland and Masvingo. Public hearings were conducted to gather the views from the general members of the public. The Committee also received written submissions from various stakeholders.

Overview of the Consultations

The Committee managed to reach a total of 866 people, with 56.1% men and 44.4% women together with 1.8% of persons with disability. There was low turnout in some places which may be attributed to low willingness of the public to participate during such consultations. However, the Committee managed to get very insightful contributions. The Committee considered and deliberated on the submissions gathered to develop this comprehensive report.

General Submissions

The general public welcomed the Bill as they implored Parliament to continue supporting widows, widowers and orphans. Moreover, the public pleaded for extensive awareness campaigns regarding the mandate of the office of the Master as well as decentralization of the office to all districts to ensure protection of vulnerable groups in cases of inheritance.

Specific Submissions

 Memorandum of the Bill

Majority of the people who contributed towards this Bill applauded Government’s efforts towards improving the efficiency and effectiveness of the Office of the Master. However, some raised concerns that it is not clear how taking the Office of the Master out of the Judicial Service Commission will improve its efficiency since the duties of the office will still remain the same. It was further submitted that the Bill does not have any provisions suggesting that the new Board will be any better than the Judicial Service Commission. Clause 3: Office of the Master 3: Name of the Office Veritas highlighted that according to the Bill the Office will continue to be called the Office of the Master of the High Court whilst High Court will no longer have any real connection with the Office. As such, it was their opinion that when the Bill becomes law, the office should be given another name.

Composition of the Board

Concerns were raised over the composition of the Board being established. Some members of the public submitted that, according to the contents of the Bill, there will be no Judge on the Supervisory Board, though the Chairperson will have to be qualified for appointment as a Judge. It was also submitted that the Bill should clearly state a single figure number of women to be appointed to the Board. Furthermore, it was submitted that the composition of the Board should also take into consideration youth and disability representation.

Independence of the Board.

It was submitted that this Clause provides for the Board to be independent except for the Minister’s power to give it policy directives. Some members welcomed this provision and further submitted that ministerial powers under other statutes should be limited in a similar fashion.

Funds of the Master’s Office

Some members of the public submitted that the Office’s running expenses are most unlikely to be funded by donors, so to meet those expenses the Office will probably continue to rely on fees, charges and fiscus appropriations. It was their opinion that, if the intention of the Bill is to make the Office self-funding, then chances are that the office will have to increase its fees and charges. Since the persons who ultimately have to pay those fees and charges are the beneficiaries of deceased estates, mostly widows and orphans the burden of maintaining the Office may fall on the poorest and most vulnerable members of society. The public therefore recommended for the reduction of Master’s fees and charges.

(iii). Clause 4: Powers of the Board and the Minister.  It was highlighted that there are some anomalies in the Bill regarding the powers of the Board as provided for by section 4B (1) and the powers of the Minister under section 132 of the Administration of Estates Act. It was submitted that according to the Bill, the Board will be responsible for determining the policies and principles under which the Office is administered and supervised yet the Minister will retain power under section 132 of the Act to make regulations for the management and good conduct of the Master’s Office without even consulting the Board. It was therefore submitted that if this anomaly is left uncorrected it will cause confusion and conflict.

Committee Observations

The Committee observed the following:

(i) The public was in support of the amendments being proposed by the Bill as they seek to improve the efficiency of the office of the Master of the High Court.  (ii) The public raised concerns over the number of women in the Board 8.

Committee Recommendations

 The Committee therefore recommends the following:

(i) The Bill should be passed by both Houses taking into consideration the submissions from the public

(ii) That the number of women in the Board be 4 The Board should consist of 1 person with disability, 1 youth male representative and 1 youth female representative

Conclusion

In conclusion, the public welcomed the Bill and applauded it as a positive step towards the management and administration of deceased estates. They submitted as well as voiced out their opinions and hoped these observations will assist the Parliament in its assessment of the Bill. The observations which were met are summarised in this Report.  I thank you Mr. Speaker Sir.

HON. MUSHORIWA: Thank you Mr. Speaker Sir for giving me this opportunity. I want to thank the Hon. Minister for his Second Reading speech as well as the submissions that have been made by the Portfolio Committee on Justice.  My first comment is that these amendments to this Act were overdue. My major worry is that because this is a 1907 Act, and I was hoping that the Hon. Minister, when coming to this august House, was going to come up with a new Bill not a mere amendment.  This is primarily because there are quite a number of the provisions of the current Act which are no longer in sync with the reality that we have at the moment. 

          You notice that in terms of transparency and accountability, the guardian fund for instance, the provision of the current Act says that the guardian fund can be audited by an examiner appointed by the Minister.  Whereas the modern and what we need to see happening in Zimbabwe is to have the Auditor-General having access so that she will be in a position to also audit these funds.  In respect to the provisions that have been put, the Hon. Minister will need to explain to us the benefits of moving the Master of the High Court from the Judicial to a Board or to create a parastatal.  My major concern is that we are creating another layer of expense that may become a burden to the citizens of this nation.  I say this, given and aware that there have been some challenges that we have seen accruing even at the Master of High Court.

 Tied to that Mr. Speaker Sir, what I would want the Minister to then educate us is that once you remove the Master of High Court from the Judicial service and become a stand-alone, will the name Master of High court still suffice now that there is not any relation with the High Court? Is it necessary or it was meant to make sure that at least we come up with other changes that are important?  The other issue that I feel the Hon. Minister will need to clarify to us is in respect of the decentralisation; the current Act as it stands, I did not see any amendment to that. The Master of High Court is domiciled in Harare and Bulawayo and I have not noted any indication in respect to the decentralization, in respect to the other eight provincial headquarters.  I have a challenge that I think is key to the management of the Master of High Court Office.  Here we have been told by the Hon. Minister that we are setting up a board to run the affairs, but if you go through the amendments, they give the Minister some sweeping powers to make certain directions and directives.  The Bill does not contain whether or not the Minister should make those in consultation with the board.  I think we need to ensure that there is a provision that speaks to the fact that when the Minister does that, he makes those under the advice of the board.  I know in practice, the Minister may say, ‘No that is what happens, I cannot then come up with a directive without getting information from the board’.  I think it is prudent that it be contained in this Bill.

          Mr. Speaker Sir, I have in principle, no problem in terms of making sure that we clean the Master of the High Court and we make the Master of the High Court efficient and effective.  We have had challenges in the recent past where many people have had their money frozen.  I know from my constituency, I have had a situation where parents have died because of the corrupt nature and the other things that were happening.  So it is important that this Bill is coming before this august House and we will be supporting it, but it is also crucial when the Minister gives his response, to educate us in terms of the issues that I have raised.  I thank you.

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Thank you, Mr. Speaker Sir. I want to thank the Chairperson of the Portfolio Committee for the report of the Portfolio Committee which was quite comprehensive.  Allow me to respond first by thanking the Committee for the public hearings and gathering the views of the people.  By and large, the majority of those, according to the report, were in agreement that we need the office to be changed from the current structure.

 They advocated for the awareness campaigns on the format that the Office of the Master of High Court is going to take in terms of the decentralisation strategy that we want to implement.  They raised concerns and indicated that it was not very clear why the office was being taken out of the Judicial Services Commission (JSC) and whether that would improve efficiency and make it better than the JSC.

          Mr. Speaker Sir, let me give a bit of background when the new Constitution came into place.  The JSC was created and it was separated from being administered directly by the Minister of Justice, Legal and Parliamentary Affairs. The Office of the Master of the High Court went with JSC, there were several administrative and structural difficulties in that arrangement.  The first one is that the JSC has the Chief Justice at the top and the secretariat is headed by a secretariat that administers the JSC and the Office of the Master was reporting to the judges. 

Now, if anything happens or any consequence happens along the way, it will go before the same people for resolution.  In other words, if anyone within the judicial system manipulates an estate, the report is to the courts, which are again the same people who are administering the Office of the Master. So it was now difficult to say, are these individuals going to get justice in an arrangement where they are complaining to the very same people that are administering the office?  I have received individuals who would come and say, ‘Minister, I lost my house, this is what happened’, and you then wonder whether, even if you are to try and solve that issue, there will be justice. 

So we decided to come up with a policy where we separate the function of the Office of the Master, and forget about the Master of the High Court.  I think we can even choose any word that we want as Zimbabweans to call this, but it is the administration of estates.  So, our position was to separate because there is nothing that the courts are doing, the Master is doing everything.  Let us separate it so that if there are disputes, these can be taken to courts that are independent and are not conflated by the administrative role that they have been playing. 

Therefore, we decided to remove that function from the JSC and it stands alone as an office that will administer estates in Zimbabwe.  It will improve efficiency, it will allow for dispute resolution, and if there are disputes, they will go to court just like any other disputes if they arise.

          So, that was the motivation that led us to move the office from JSC and we hope that once it is being run by an independent board, it will improve efficiency because members of the public will now be confident to approach the courts should there be a dispute about the conduct of the Office of the Master. After all, the Master will be separate from the Judicial Services Commission.

          The other concern was on the composition of the board that there must be a judge on the board.  I do not think it is necessary Mr. Speaker.  We need somebody who is maybe qualified to be a judge, but a sitting judge being on the board is a waste of resources. Again, it will bring that conflation of roles that we are now taking somebody who is supposed to be an independent arbiter and bringing him again into a system that we are saying we want to separate and ensure that it becomes independent.  The proposal was, we have somebody qualified to be a judge and our Constitution is now very clear on gender equality when we appoint boards these days, regard is given to ensuring that we have gender balance. 

          The other issue was the youths and those living with disability; I think we can leave this to the person who is appointed so that they comply with the requirements of the Constitution.

          The other issue that was indicated was on minority section.  I am not sure we can realise that in a small board of about four or six people, but regard has been given.  The Constitution has directed that in making any appointments, regard must be given to regional balance and to all those issues to ensure that there is a fair representation.

          Funds of the Master; the Chairperson spoke about reducing the Master’s fees and in the same vein, indicating that they will not increase resulting in the setting up of this office.  Will it not increase fees?  We believe that going forward, we have a stand-alone board of the Office of the Master, the fees may decrease because there are lots of funds.

 Hon. Mushoriwa spoke about the Guardian Fund, it has a lot of money that is invested, and intelligently enough, the board can have money to run.  What we have realised is, the Office of the Master was subsidising the JSC and they were very comfortable having it because of some of the funds that they could play around with and invest and ensure that they do other things.  I do not think it is something that is of a major concern that we can have an increase in the fees that are being paid.  Rather, we anticipate that going forward, the fees may actually go down if the office is managed efficiently.

There was the issue of board policies being given by the Minister having the power to give policy direction and make regulations.  Again, the Bill is very clear, it says that when making policy directions, the Minister must write to the board to say this is what I intend to do and the board must give the written submissions if they have contrary views to say that we believe that if this is done, it will adversely affect our office and again in the Bill, it says the Minister must not do anything that is inconsistent with what the Act provides.  So it has several provisions that share the powers of the Minister and ensures that there is dialogue when the Minister wants to make those policy directions. 

In terms of regulations, when you have a policy, for that policy to be effective, you now need to turn the policy into law and this process of law-making Parliaments world-wide, including our own Parliament, guard their law-making powers.  It is delegated to the Executive to the extent that not everyone out there who is not cloaked with legislative powers can actually legislate.  So this provision is standard in almost all jurisdictions that you find out that the powers to make regulations are delegated by Parliament to the Executive and to Ministers to do that and the regulations, just like any other Statutory Instrument Bill, they will pass through Parliament. The Parliamentary Legal Committee on behalf of all of us in Parliament, will then scrutinise it and if they believe that it is okay, then Hon. Speaker will announce that, I have received this, they are okay and then they remain operational, but if there are issues, then we debate that particular Statutory Instrument and the House will now make a decision whether to accept or reject it.  The law-making powers of Parliament are then retained in that way.  We must always guard against having so many people with legislative powers when they are not cloaked with the authority from the people to legislate.

Mr. Speaker Sir, coming to Hon. Mushoriwa, I want to thank him.  I think he went through the Act and I agree.  It is a very old Act.  I agree that perhaps it will have been prudent to revamp and come with another Act altogether but what we did is, we decided at that juncture to come up with an amendment Bill.  We can always have that conversation to look at it and see whether there are issues that need to be looked at, but we believe that the Bill addresses more or less the issues that we felt now needed to be addressed and he pointed out the issue that the Minister can appoint an examiner to look at the books of the guardians funds, why not have the Auditor General.  I agree, we can put in there because the thrust is to improve the efficiency in the way the Office of the Master is being run to have accountability and transparencies.  So that suggestion is something we can consider when we reach the Committee Stage to see how we can improve it to ensure that there are no loopholes of abusing that particular fund.

Benefits of moving from JSC, I have already indicated that there was conflation of roles. The final arbitrator of all our disputes is JSC. They were administering the Office of the Master and if something happens, it becomes in-house. The persons who suffer are the beneficiaries and they do not have any recourse because they have to appear before the very same people who they are aggrieved against and we believe that the separation will allow the JSC to carry out its functions unhindered or not being burdened by the Office of the Master.

Creating another layer of expense, I do not think so Mr. Speaker. We looked at it and we have realised that when it was with the JSC, they were actually benefitting immensely from the Office of the Master, not the other way round. Hence, we are now saying let us ringfence that fund and functions of the Master so that we do not have them being used for any other purposes.

On decentralisation, the Bill has it I think on Clause 4, it speaks about creating divisions. Those divisions are now decentralisation. I think it is Clause 4 (a) where it talks about creating additional divisions headed by an additional Master. All this is part of the decentralisation that we were talking about.

Hon. Mushoriwa was concerned about the Minister having sweeping powers. I do not agree. The Minister’s powers are actually limited within the Bill to say that even when the Minister decides to issue policy direction, those directions before they are published, he must consult the Office of the Master to say to the board this is what we want to do, what is your take on this. Before regulations are published, the Minister must again do the same and the Act articulates that the Minister cannot issue policy directions that contravene 1, 2, 3 and 4. I think it is articulated in Clause 4 (d).

I believe that the Bill is a progressive one and will enhance efficiencies in the Office of the Master. We are trying to ensure that beneficiaries are well protected. We will increase efficiencies and ensure that it operates so that the generality of our people benefit. I want to thank the Hon. Members. I am not sure, with your leave Mr. Speaker, they are only two that debated, whether I should move for second reading.

Motion put and agreed to.

Bill read a second time.

Committee Stage: Thursday, 30th May, 2024.  

SECOND READING

 

CRIMINAL LAWS AMENDMENT BILL [H. B. 4, 2024]

 

            Second Order Read: Second Reading: Criminal Laws Amendment Bill [H. B. 4, 2024].

           THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): This is a very short Bill that was occasioned by the need to cure a lacuna that had happened whereby the courts had indicated in a constitutional judgement that children are anyone up to the age of 18.  In our Criminal Law Codification and Reform Act it was up to 16 years and there were those children from 16 to 18 who were not protected by our laws and we had to call upon His Excellency to help us by using the powers vested in him under the Presidential Powers to cure that.  Mr. Speaker Sir, allow me to present my Second Reading speech on the Criminal Laws Amendment that is protection of young children and young persons Bill. 

This is a pertinent Bill which seeks to align Section 61, 70, 76, 83 and 86 of the Criminal Law, Codification and Reform Act with the Constitution of Zimbabwe. It is an alignment Bill.  These sections define a young person as a person below the age of 16 whereas the Constitution of Zimbabwe places 18 years as the age of majority.

      This Bill seeks to confirm the amendments contained in the emergency decree made by His Excellency under Statutory Instrument 2 of 2024.  The Emergency Decree was necessitated by the Judgement of the Constitutional Court in Kawenda vs Minister of Justice and Others.  The President’s intervention was rendered more urgent following a Court order release of all offenders convicted of sexual intercourse with a young person. 

         The Criminal Law Codification and Reform Act Chapter 9.23 contains several sections that protect children from sexual exploitation.  The sections refer to children as young persons and that term is defined as meaning boys and girls under the age of 16 years. However, Mr. Speaker Sir, the Constitution fixes 18 years as the age at which one is considered to have attained adult status.  Although the Criminal Law Court protects the children under the age of 16, it is imperative to note that it does not provide protection for children between the ages of 17 and 18 in the event of sexual crimes being committed on their persons.  As a result, the Constitutional Court has declared the definition of young person in Section 61 as well as Section 70, 76, 83 and 86 of the court to be unconstitutional and void.  This Bill therefore intends to extend protection of children up to the age of 18 as enshrined in the Constitution.

        The Bill will also amend the Criminal Procedure and Evidence Act to make it possible for children and other witnesses who cannot talk due to impairments, to be able to give evidence through other means such as written statements, usage of sign language and other argumentative and alternative communication.  This amendment ensures that people with speech impairments are not left out in enjoying their rights to be heard and participate in all our court proceedings.

        As I conclude, allow me to encourage Hon. Members to support and pass this important law which seeks to enhance the protection of our children against sexual exploitation.  It is also an important law that will promote the inclusion of people with speech impairment in our justice system so that they may be accorded an opportunity to be heard and participate in all court proceedings, thereby giving life to the Government’s mantra of leaving no one behind.  I therefore urge Hon. Members to support and pass this Bill and I now move that the Bill be read for the second time.  I thank you.

         HON. DR. MUTODI:  Thank you Mr. Speaker Sir.  I rise to present the report on the Public Hearing carried out by the joint Portfolio Committee on Justice, Legal and Parliamentary Affairs and the Thematic Committee on Human Rights with regards to the Criminal Law Amendment protection of young children and young persons Bill.  

        Section 141 of the Constitution of Zimbabwe gives Parliament of Zimbabwe an obligation to engage the general members of the public during its law-making procedures and to ensure that all interested parties are consulted on Bills being considered by Parliament to be enacted into law.

         In fulfillment of this constitutional obligation, Parliament of Zimbabwe through the Portfolio Committee on Justice, legal and Parliamentary Affairs in conjunction with the Thematic Committee on Human Rights, held public consultations on the Criminal Laws Amendment Bill to gather the views of the people from the 6th to the 11 of May 2024.  The Bill which was gazetted on the 1st of March 2024 seeks to amend the Criminal Law Codification and Reform Act Chapter 9 Subsection 23.23 and the Criminal Procedure and Evidence Act Chapter 9.07.

          BACKGROUND

          Two applicants who are young Zimbabwean feminists and human rights activists with a special interest and concern for children, gender and women’s socio-economic rights, filed an application to the High Court of Zimbabwe as a public interest application to protect the rights of children.  In their application, they averred that among other things that the current age of sexual consent in Zimbabwe is 16, this age is derived from Section 61 of the Criminal Law Code which defines a young person as a boy or girl under the age of 16 years.  However, Section 81 of the Constitution makes it clear that a child is anyone below the age of 18.  Therefore, according to them, a young person should be defined in the Criminal Law Code to mean a boy or girl under the age of 18 years. 

       The Constitution of Zimbabwe being the Supreme law of the land; any law custom conduct or practice that is inconsistent with the same is invalid to the extent of its inconsistency.  According to them, the Criminal Law Court is unconstitutional as it fails to recognise that a child is anyone below the age of 18 years; more particularly, the Criminal Law Court is unconstitutional in that it defines the age of sexual consent to be 16 years.  That being the case, this Bill will confirm amendments made by the Presidential Emergency Decree that was necessitated by the implementation of the Constitutional Court Judgement in Kawenda Vs Minister of Justice and others where it was ruled that Section 70, 76, 83, 86 of the Criminal Law Code are declared unconstitutional and be set aside. Further, it seeks to recriminalise the deliberate transmission of HIV.

1.     Methodology

In partnership with SADC Parliamentary Forum, the Committee was split into two teams covering all the country’s 10 provinces, making use of 10 venues. Team A covered Mashonaland West, Midlands, Bulawayo, Matabeleland North and Matabeleland South while Team B conducted consultative meetings in Mashonaland Central, Harare, Mashonaland East, Manicaland and Masvingo. Public hearings were conducted to gather the views from the general members of the public. The Committee also received written submissions from various stakeholders mainly through email.

2.     Overview of the Consultations

The Committee managed to reach a total of 866 people, of which 56.1% of them were men while 44.4% were females and 1.8% were persons with disability. There was low turnout in some places which may be attributed to low willingness of the public to participate during such consultations. However, the Committee managed to get very insightful contributions. The Committee considered and deliberated on the submissions gathered to develop this comprehensive report which I now present.

3.     General submissions

The public applauded Parliament in reaching their communities seeking their views pertaining to the Bill which is before Parliament. There was general consensus among the public who expressed that the Bill should seek to protect the rights of all ages in Zimbabwe and leave no one behind. Hence, the majority of the crowd agreed with the alignment of age of consent from 16 years to that of 18 years as provided for in the supreme law of the country, which is the Constitution of Zimbabwe.

4.     Specific Submissions

  1. Clause 3: This clause will amend definitions of “extra-marital sexual intercourse” and that of “young person.”

The public applauded this amendment and agreed to the definitions given in the Bill.

  1. Clause 4: Repeal of section 70 of the Criminal Law Code

There was a general consensus in support of the provisions of this clause. Various organisations representing interests of children and young women submitted that this clause will provide sanctuary for children and young persons, that is to say boys and girls under the age of 18, with the protection to which they are entitled under section 81 of the Constitution. 

It was further submitted that, the introduction of a “Romeo and Juliet” Clause into the Code will make special provision for sexual intercourse between young persons where the age difference between them is no more than three years.  It was their opinion that since such cases will be prosecuted, only with the specific authority of the Prosecutor-General, this means that sexual intercourse between children and teenagers will not be brought automatically before the criminal courts.

The majority of the members of the public argued that without curbing religion and traditional issues, child sexual exploitation will not be remedied.  They went on to further state that religion sects like Mapositori are still practicing child marriages and labelled them as the most perpetrators of this crime in our society. The public further emphasised on the need for awareness campaigns against sexual exploitation of children and young persons and make it known to the public that the penalty for such actions are hefty for purposes of deterrence. 

On Clause 5: Amending Section 73 of the Criminal Law Code to make reference to the new definition of “young person”.  

Some members of the public raised concerns on the wording of the clause and recommended for the rephrasing of the clause as follows:

“Section 73 (“Sodomy”) (3) of the principal Act is amended by the deletion from paragraphs (b) and (c) of “sixteen years” and the substitution with “eighteen years”  

  • Clause 7: Complicity to sexual crimes

There was general consensus in support of this clause. The majority of the public applauded the Bill as it seeks to forbid adults from taking advantage of children and young persons for their personal gains. It was submitted that some parents and guardians are still participating in child marriages, hence they should be brought to book. 

  1. Clause 8: Criminalisation of deliberate transmission of HIV

among the sexually transmitted diseases covered by the Criminal Law Code.  Some members of the public were of the opinion that this clause must be supported.  It was their submission that the provisions of this clause will correct an anomaly whereby it is criminal to infect someone with a sexually transmitted disease such as Syphilis or Gonorrhea, but not with HIV. 

However, some members of the public were against this clause as they argued that during the crafting of the Marriages Act in 2022, the Government agreed to the lobbying of people living with HIV and other support groups and civil society organisations to decriminalise willful transmission of HIV.  It was further submitted that there is no method of establishing the period one may have been infected with HIV and who would have transmitted the virus between the two when the statuses of both were unknown before the sexual intercourse happened. I am not sure if I was very clear there.  Madam Speaker, what they are saying here is that it could not be easily established who infected who. 

It was further submitted that there is need for the drafters of this clause to first explain why they intend to recriminalise the deliberate transmission of HIV, a crime that was repealed just two years ago.

  1. Clause 11: Amendment to section 319A of the Criminal Procedure and Evidence Act.

The public applauded this clause as it seeks to be protecting the rights of children and other persons with hard hearing challenges and will be allowed to give evidence in court in writing or by signs or by augmentative and alternative communications. It was submitted that this is a positive step towards the effectiveness of our judicial service system processes. 

5.     Committee Observations

The Committee observed the following:

  • The public was in support of the amendments being proposed by

the Bill as they seek to protect children and young persons below the age of 18 years.  So the public was generally in agreement with all the provisions raising the age of sexual consent from 16 to 18 years as well as criminalising the deliberate transmission of HIV.

6.     Committee Recommendations

The Committee therefore recommends the following: -

  • The Bill should be passed by both Houses taking into consideration

the submissions from the public;

  1. There should be a provision for abortion where young persons or young girls fall pregnant even when the responsible perpetrator was another minor. This is a very critical one that they actually raised to say, you may have a minor of 13 years who is impregnated by a 16 years old boy. The law is not criminalising as you have seen that there will be a Probation Officer to consider whether the perpetrator must be brought to justice.  Now, the 13 year old girl will still have to live with the pregnancy, but according to the submissions and workshops that we had, it was realised that the pregnancy may actually be a risk to the life of the young girl.  In this case, the Committee recommends that there be mandatory abortion or abortion be allowed in such circumstances.
  2.        The Committee also recommends that the deliberate transmission

of HIV be penalised as stated in the Bill. 

7.     Conclusion  

In conclusion Madam Speaker, the public welcomed the Bill stating that it is a positive step towards the country’s legal system. Not only does it protect all children from sexual predators, it also protects the boy child using the Romeo and Juliet clause against vindictive parents and guardians who are against adolescent relationships. Further, the public welcomed the re-introduction of deliberate transmission of HIV as a crime as it will deter malicious individuals from getting away with infecting others with the chronic illness deliberately. Be that as it may, the Bill as a whole was welcomed along with a few additions and subtractions.  I thank you Madam Speaker Ma’am.

          HON. MUSHORIWA:  Thank you Madam Speaker.  I want to thank the Hon. Minster for bringing the Bill before this House, and I also want to salute the work that was done by the Portfolio Committee on Justice.

          I am aware, Madam Speaker, that this Bill was necessitated by the ruling by our courts and accordingly, I understand the position taken by the Executive, starting from the Presidential Powers (Temporary Measures) and this Bill that the Hon. Minister has brought before us. 

          I have two issues that I just wanted to raise in respect to this Bill.  One of the major challenges, Madam Speaker, is that it is very difficult in a society to come up with a law that actually talks to the relationships that exist between our young children and the adults.  Madam Speaker, I come from a high density constituency where I am aware for a fact that some of our young children, those that are below 18 years are actually actively involved in sexual activities.  We have a challenge in that we have had a series of incidents that have been reported in the media pertaining to these wild parties that they have been engaging in.  It is important that we regulate and make sure that we criminalise especially the old people that want to take advantage of the youngsters.

          The major challenge however, Madam Speaker, is that we live in a world and time where even the 17, 18 year olds have actually mastered the art of deception to an extent that even in areas where no under 18s are permitted, you will find them there under disguise doing all kinds of things.  Then in this Bill, Madam Speaker, it says that one can raise defence to a charge for having been with someone below the age of 18 if he or she can satisfy the court that he or she has reasonable cause to believe that the young person concerned was over the age of 18 at the time of the alleged crime, but it then says provided that the apparent physical maturity of the young person concerned shall not on its own constitute reasonable cause for the purpose of the section.

          I just do not understand, Madam Speaker and need the Minister to educate me in this regard.  What other excuse can someone come up with to then think that maybe this child was actually above 18 because normally, we know men who have lied to say no, because we see the physical make-up.  Like for instance if you see Mushoriwa’s children, they will be big and then you take advantage of the physical attributes, but this Bill stated it correctly to say that we should not allow people that take advantage of the physical make-up of our children.  I want the Minister to clarify to me - can there be any other reason, any basis upon which someone can prove that a person, in their view thought she was above 18 years?

          The other issue that I also have a problem with is the question of punishing someone that could have allowed an under 18 person to actually get into a premises.  I think that this one, Madam Speaker, needs to be relooked into because the burden now places a lot of energy and the onus on hotels, lodges and even other places.  It will create a huge challenge in terms of the administration.  I will give you a good example.  For instance, you are at Rainbow Hotel, a child comes and goes to a room.  The personnel at that hotel may not necessarily know that this child is actually going into Hon. Mushoriwa’s room and that child is actually being abused.  I find it a bit tricky, Madam Speaker, to the extent that we could actually punish the owner of a lodge or owner of a hotel.  It becomes a bit tricky and I think in that issue, the Hon. Minister needs to then explain to us.

          Lastly Madam Speaker, I want to agree with the submissions that were made.  In the last session, the previous Parliament approved during the Marriage Bill debate, to decriminalise the spreading of HIV amongst people.  My initial reading, and what I thought this Bill meant was that it was going to be an aggravating circumstance where an adult like Mushoriwa sleeps with someone who is below 18 years and then it is found that the person I slept with has actually acquired HIV.  That should be an aggravating circumstance, but the manner in which it is coming appears as if even consenting adults are actually affected.

          I have a problem even in the question of saying, how do you define deliberately because I do not foresee any court being able to convict a person for behaving been willfully involved in spreading HIV, or even any STI for that matter because I do not see how the deliberate aspect will be determined by the courts. In my view, it is just like the split we had in the last Parliament when we did the Marriage Bill. I think this clause needs to be removed and ought to be restricted to children under the age of 18 because we need to make sure that we punish the perpetrators that want to feed on young kids whilst there are several men and women above 18 who are seeking companionship. I thank you.

HON. MOLEKELA-TSIYE: Thank you Madam Speaker for the opportunity to debate this Amendment Bill. It is with mixed feelings that I debate this Bill. Firstly, I welcome the Bill as a Child Rights Champion. I am a Member of the Child Parliamentary Caucus on Child Rights or Children’s Rights. I am excited at this Bill and also, I am a Member of the Parliamentary Caucus on Disability. So there is a clause in this Bill that makes me very excited. To that extent, I am happy. I have mixed feelings because I am also very shocked and traumatised and disappointed as a HeforShe Champion, as a well-established and passionate Member of the movement that seeks to promote gender equality in this country.

With regards to Section 78 and 79, I will talk to that later on. Let me go back to where we are coming from. Firstly, I would like to congratulate the Minister of Justice for bringing this Bill. We know that in terms of context, last year the Judiciary made a clear ruling with regards to the age of consent, to say that there is an anomaly situation arising where it is no longer possible to include children who are between 16 and 18 years in the definition of age of consent. So they have that legal lacuna needed to be addressed to say that every person who is below 18 years is a child and they cannot have the capacity to consent for sex.

So it is important that the Executive had to respond to the Kwenda judgement that was done and it took time. I know that Statutory Instrument 2, of 2024 seeks to address that legal situation. I am happy that this Bill has come through and it will respond to the ruling. As a child rights activist, I welcome the inclusion of all children up to 18 years. No person who is below 18 years should be able to give consent to have a sexual relationship with anyone and this should align us with the changes that were made to the Marriages Amendment Bill.

We all know that Zimbabwe has been one of the strongest champions, not just in Africa but also in the whole world, in the fight to end child marriages. Zimbabwe was one of the leading countries in SADC that fought and emerged victoriously to make sure that laws in this region are changed to protect our children from marriages. We still have cases of child marriages in this country, but what we know is that Parliament of Zimbabwe has enacted a law that protects all children.

 To that extent, this Bill is very important for me as child rights activist to say that we are not leaving any child behind.  Everyone who is below 18 years is a child and must not be expected to have a sexual relationship.  I fully support the changes that are being made to protect all children and not even one child should be left behind. It is something that I encourage Parliament of Zimbabwe to make sure that everyone below the age of 18 should not be allowed to give consent to sex. As the disability champion, I am very excited at the Clause that seeks to change the law to make sure that there are alternative ways to give evidence in court.  We cannot afford to leave people behind, especially persons with disability.  I am excited at the least of other alternative forms of giving evidence in court. 

I am even more excited as the disability champion that there is now opinion for those with speech impediment and other forms of disabilities to give evidence in court through other alternative means.  This amendment aligns with other ongoing processes where we are saying we have a Disabled Person’s Bill and we are trying to repeal the law that is as old as 1992, that addresses issues around disability.  As a disability champion, I am very excited that even recently, we endorsed the special charter of protocol on disability, the African one in this very Parliament. It means that this year is already proving to be a very progressive year for those who champion for disability rights.  Parliament of Zimbabwe is proving to be a leader in Africa in promoting the rights of people with disabilities.  So I welcome this Clause and I look forward to the passing of the Disabled Persons Bill Interim Act.

I also wanted to comment on the Romeo and Juliet Clause, the way it has been framed.  It is very important that all of us be very clear that in as much as you say that children cannot be expected to have a consensual relationship in terms of sex, we are also cognisant of the fact that there is overwhelming empirical evidence that in this very country of Zimbabwe, we have a new challenge of teenagers engaging in sex.  I am sure that some of us are not aware, but the truth is that Ministry of Primary and Secondary Education has an annual report of teenage pregnancies.

 We have children who get pregnant at primary schools, secondary schools and also at high schools in this country. That is why the law was changed to protect children who fall pregnant so that they are not left behind.  Today in Zimbabwe, the policy is very clear that once a girl gets pregnant, they are supported by the Ministry itself.  They are supported by the school to make sure that they are not left behind in terms of education. Annually, thousands of children in this country get pregnant. We have a challenge of teenage pregnancies as a country.

The ending of child marriages seeks to address that partially, but we also know that there is enough scientific evidence that there are actual sexual relationships between pupils or students at school. Teenage pregnancy also involves consenting teenagers. We do not know why but biologically, these days if you go there is a campaign right now about sanitary wear. Some of you are not aware, but we are now seeking to provide sanitary wear support for primary school girls. Their sexual debut has changed. They go on periods when they are less than 10 years old.

It is now possible even at primary school or Grade 6 or Grade 7 children to have consensual sex amongst themselves even though adults do not want to admit. In that instance, where a 13-year-old and a 12-year-old have had a pregnancy, that is where the Romeo and Juliet clause arises to say that the law cannot criminalise such a sexual relationship. If the law of this country were to criminalise such a law, then our prison system will have to be changes, especially when it comes to juveniles because we will need to accommodate hundreds if not thousands of such criminal cases, judging by the number of teenage pregnancies, we are having in this country annually.

Therefore, the Romeo and Juliet Clause seeks to come up with a compromise to say that when it happens, we acknowledge that children have made mistakes but that mistake should not be criminalised. We should rehabilitate those children and make sure that they get their lives back on track because we all believe in second chances, we make mistakes and so we cannot say to a 13-year-old person you are a criminal because you had sex.

Some of this happens because they will be experimenting, they will be reacting to the hormonal changers in their bodies and culturally in this country, parents struggle to talk to their children about sex and most of the information that children have about sex, they get it through the internet. So they are able to experiment. That mistake done because someone is reacting to the hormonal changes in their body system cannot be used as a criminal offence. The Romeo and Juliet Clause is a very important intervention to protect our children from being criminalised at 12 years old, because they had sex and now they are called criminals. It also protects our prison system because how many children will we put in jail if we take this law to its logical conclusion that they need to be arrested and criminalised.  So as the Parliament of Zimbabwe, we must support the Romeo and Juliet clause.  We must make sure that we use it to protect our children from being sent to jail instead of being sent back to school. 

          The other issue that I want to comment on is around the clause that seeks to allow girl children who get pregnant before the age of 18 years to be allowed as a special case for termination of pregnancy.  It is a very welcome clause, you cannot force a teenager to have a child.  It is important, especially after it has been proved that it was a statutory rape and if they need to terminate the pregnancy, they are allowed to terminate so that they have a second chance, be allowed to go back to school and have their career outlook supported by the family and everyone else in society.

          My concern about this clause is that it speaks to some other issues that are a big elephant in the room.  In this country, we have a law called the Termination of Pregnancy Act of 1977.  It is one of the oldest laws in this country that is long overdue. It does not need to be amended; it needs to be repealed. The Termination of Pregnancy Act is one of the biggest hindrances we are having right now in promoting gender equality in this country and promoting the rights of women.  It is one of the old patriarchal laws that is hindering the emancipation of women in this country and the promotion of gender equality.  It is possibly violating the Constitution of this country in terms of the clauses that speak to the promotion of gender equality. 

          As Parliament of Zimbabwe, we must use this opportunity to be reminded that we stand guilty every passing day without the Termination of Pregnancy Act being repealed and replaced by much more progressive laws; it means that we are losing a lot of lives. 

A young woman is dying because they had an abortion in circumstances that are not conducive. An elderly person or an elderly woman died because of an unwanted pregnancy that they wanted to terminate.  This country has enough empirical evidence that there is a lot of termination of pregnancies, especially at high schools and university. At community level, women are not being given a choice, once you fall pregnant, you have to bear the consequences.  This excludes a lot of women from having second chances in life. 

          In other countries, they have moved on, and the same Act is based on the same Act that used to be in Britain and South Africa and they were repealed over 20 years ago.  So it is a wake-up call to the Parliament of Zimbabwe that let us not have piece-meal changes to the abortion law of this country.  It is time to repeal the Termination of Pregnancy Act and replace it with a brand new Act that recognises the rights of women in this country and negates the patriarchal interest that the old Act has.

 Some of us who come from a public health advocacy background know that the conditions that are being given for Termination of the Pregnancy Act are very limiting and they disadvantage women and healthcare services workers.  They even criminalise them, so we must change the law on the termination of pregnancy urgently. 

          I also want to comment as a He-for-She Champion about the bad law that the Parliament of Zimbabwe is introducing.  The first thing that I am worried about on Section 83 which talks about procuring; yes we welcome the fact that it seeks to address sex trafficking which is a big challenge we are having in Zimbabwe today.  There is a lot of sex trafficking, but I was horrified that we used the word prostitute.  This word has been discredited across the world.  All people who promote gender equality and women empowerment never use the word prostitute on a fellow human being.  It is a derogatory word that the Parliament of Zimbabwe should be ashamed to be associated with.  The nomenclature that is accepted now is a sex worker.  A prostitute is now called a sex worker.  There is no such thing called a prostitute anymore. A woman who practices this model of business is called a sex worker…

          THE HON. DEPUTY SPEAKER:  Hon. Molokela, your time is up.

          HON. MOLOKELA-TSIYE: Can I please have another five minutes, I have one more point?

          HON. TOBAIWA: I am adding five more minutes to Hon. Molokela.

          HON. GUMEDE: I second.

          HON. MOLOKELA-TSIYE:  I wanted to say that it is an opportunity for the Parliament of Zimbabwe to face another big elephant in the room. Why are you criminalising a huge section of society and calling them prostitutes while the rest of the world recognises them as sex workers, an important social economic structure of this country.  We will need the Parliament of Zimbabwe to have an honest conversation outside this Bill to say when we will recognise the rights of sex workers in this country. 

We claim that we do not want to leave anyone behind, we claim that we want to end HIV/AIDS by 2030 yet we know that some of the key players in the fight to end HIV by 2030 are sex workers.  Sex workers are key players and they cannot be left behind, reduced, and criminalised as prostitutes.  It is the responsibility of the Parliament of Zimbabwe to make sure that we have a debate and we have a new law to address the issue around sex workers, which is something that has been recognised in other countries as a key component of the economy.  In other countries, sex workers are paying tax and we all know that Hon. M. Ncube is struggling with tax in this country and he is losing a lot of income as I speak to you.

          HON. GANYIWA: On a point of order! I think Hon. Molokela is going to the extreme as he has the liberty to debate around the subject matter, but for him to drive to a point where we can also imitate other countries that he keeps referring to that are collecting tax…

          THE HON. DEPUTY SPEAKER: Order Hon. Member! Your point of order is overruled.

          HON. MOLOKELA-TSIYE: Thank you, Madam Speaker.  As a He-for-She Champion, last year I celebrated when the Parliament of Zimbabwe removed a clause called Section 79 that criminalised willful transmission of HIV; it shows that Zimbabwe was serious when it came to promoting gender equality and women's emancipation in this country. 

          This bad law was repealed because it is not possible socially and legally to prove who in a particular relationship was infected first with HIV. Over the years, many countries have repealed this bad law and Zimbabwe was one of the last countries to repeal this law Section 79 where we said we are no longer criminalising alleged willful transmission of HIV. 

          Women are the ones who have been prosecuted under this law and it has been difficult to prove that they committed a criminal offence because we all know that in this country, women are the ones who have health-seeking behaviour, they are the ones who are willing to do HIV tests.  Most men in this country are scared to do an HIV test.  They are less scared of lions and other wild animals than having an HIV test.   I can dare a man in this Parliament to have an HIV test in public and you see the reaction. Most of them will look for the nearest exit door.

          Women are the ones who go to the hospitals and clinics to get HIV tested, they may be the ones who are first to know officially, but it does not mean they are infected.  Most women are being infected because their men are the ones who are infected, but they are not taking tests, they are keeping quiet. 

          Also, the health care services of this country, say if a woman falls pregnant, they are supposed to have an HIV test in line with the prevention of mother-to-child transmission.  It is part of the efforts to end HIV and AIDS.  So women get to know their status even when they get pregnant. Most men pretend they do not know their HIV status and then claim later, start to beat up women saying you infected me with HIV when we know that it is not proven who infected who. 

What I recommend is that instead of reinstating the bad law that we repealed as Parliament, we are supposed to repeal Section 78 which included the list of other sexually transmitted illnesses.  We are not supposed to reinforce section 78 by including HIV. We are supposed to repeal it, that is what I submit.  I thank you.

                    HON. CHIDUWA: Thank you Madam Speaker. I also want to put my voice and welcome the amendments to the Child Amendment Bill which I see is going to be aligned to the Constitution and other laws. Increasing the age of sexual consent from 16 to 18 years, I think this is going to be a positive, especially when I look at it from the economics point of view. This is going to promote efficiency in our education system.

If you look at what was happening, most of our teenagers were now engaging in sex. Some of it because of the drugs that were being supplied even by adults. This negated our education system, especially on the girl-child. I would anticipate now a situation where we are going to see a reduction in child pregnancies and also less school drop-outs, given that the male sexual predators and perpetrators will know that once they are engaged with girls under the age of 18, they will be prosecuted.

Also, what is critical again is criminality is going to be reduced especially on the part of males when they know that there are prosecutions. This is also going to assist us when you look at HIV transmission, criminalising the deliberate transmission will also lower HIV transmission. This is promoting production. As I have said, I will link my arguments to production and economics.

We have also seen cases where from empirical evidence and studies that have been done, aggregate demand is a function of population. If you look at what is in India versus what is here, where we have got higher populations, we also expect high aggregate demand. So we are looking at boosting of our population. I know there are advocacy groups that are saying we need to reduce our population, but for us, studies that we have done have shown that Zimbabwe as a country can accommodate a population of up to 30 million.

So one would say as we navigate towards that figure with a health population where HIV is low, we are looking towards a country that is going to be an investment destination because even for some investors, before they make an investment decision, they also ask what is the population size. Where a country has a very low population size, investors will say there is no demand. So we are looking at that aspect as well.

Then increasing the life expectancy because of low HIV transmission, we have done a lot as a country to lower HIV transmission and I am sure the passage and approval of these amendments will also add to the positives that we have made as a country. We are also looking at improvements in the standards of living of our people as we promote the girl-child; this again is going to add to skills development, and there is going to be a boom for our country.  I applaud the Ministry of Justice for bringing this Bill and also the great work that was done by the Committee.  I support the amendments to the Child Bill. I so submit.

*HON. TSITSI ZHOU: I want to add my voice to the Criminal Laws Amendment Bill and I support this issue because it is a challenge which we are facing. In order to determine what a child is, some people will propose love to girls with big bodies and try and justify themselves saying that she looks big.  The definition of what a child is, which says that a child is someone who is below 18 years of age and this is clear, whether it is the Marriages Act which stipulates that a person can be married after 18 years only. This issue, at one point, spoke about consent at 16 years or dating at the age of 16 or even falling pregnant which becomes a challenge. We know in our culture there are some children or people who are delinquent and who need to be disciplined, but I want to thank the Hon. Minister for bringing this issue to the House. I want to thank His Excellency the President for using his Presidential Powers.  Indeed, it was a challenge because people wanted to use the 16 – 18 discrepancy but we thank His Excellency, President E.D. Mnangagwa.

Clause 3 of the Child Marriages Bill says that there is no child marriage because a child cannot get married and a child is just a child as long as they are below 18. This clearly shows that it supports the Marriages Act. For those who say it is Solo and Mutsai when young children fall pregnant or make each other pregnant, then people arrange a marriage; that is criminal. No child can be married off for whatever reason. If that is seen to have happened, it is a crime and there cannot be a marriage and there cannot be a wedding. So I support Clause 3.

I want to go to the Solo and Mutsai clause which is Clause 4, which is a big issue here. The issue is that after children have made each other pregnant, the girl might be pregnant and gives birth but what happens to the child of this girl and boy-child? The Act says they cannot get married but they would have slept together and made each other pregnant. What should happen is that the girl should go back to school, but what happens to all these children?   I would like to thank our First Lady for the Gota/Nhanga Programme that she is doing, which tries to recreate our cultural norms and values. The role played by the aunties, uncles and our chiefs should come up with such programmes which educate the young so that they preserve their sanctity before getting married.  When they get married, they should do so after preserving themselves.  Children should be taught because if we do not do that, once they test such relationships, they cannot be stopped.  So, clause number four is quite pertinent. 

I implore the House that it should be looked into.  We do not encourage the prosecution of children but they should be helped in such a way that we discourage other children so that they will not also experiment.  They must get married in a proper way having the white wedding and following due process after preserving themselves going to the honeymoon and people will be celebrating.  It is important to have such values where they experience intercourse after marriage. 

Clause number six - Section 75 of the Criminal Law prohibits sex for those who are related, incest in related people; in the Marriages Act it is not clearly defined but here it is clear to everyone that it is not allowed to have an incestuous relationship. You find in social media, a father having a child with his daughter and a mother doing the same with the son.  This is criminal and such people should be arrested.  We know that only animals do that and our culture does not allow that.  We try to prevent in breeding, even in our domestic animals because it results in negative results.  So we try by all means to have one bull in a kraal to avoid such incest in our domestic animals. 

Clause six is quite good because the issue of incest resulting in these relatives having children is quite embarrassing.  It is embarrassing to hear that a son has a child with his mother.  You become a laughing stock in the village.  You cannot procreate with someone who has similar genes because it might result in reproducing a deformed child.  I want to thank you Madam Speaker for giving me this opportunity and indeed, I support this Bill and urge my fellow MPs to support it.  I thank you.

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI):  Madam Speaker, allow me to start by thanking Hon. Mutodi and the Committee for a very comprehensive report that was produced by both the Justice Committee and the Thematic Committee on Human Rights.  Allow me also to thank the Hon. Members that have debated the Bill. 

Firstly, I just want to respond to a few issues that were raised in the report by Hon. Mutodi.  I will start by indicating that this Bill was solely about criminalising sexual intercourse with young persons.  Hence, with my team, we will refine the definition of a young person in the Bill so that we separate those children below 12 whereby having sexual intercourse with them is automatically rape so that in the Bill we will remove excess clauses that were put in for the avoidance of doubt.  We just need to clean the Bill up.  Hence, we clean it and we separate those children that are incapable at all of consenting and then separate them with young persons between the ages of 12 and 18. 

Having said that, we are going to delete reference to extra marital sexual intercourse.  It has nothing to do with that.  What we are criminalising is sexual intercourse with a young person.  There is no need to make that reference, extra marital sexual intercourse; so I have already instructed my team to prepare t          hose amendments so that when we go to Committee Stage, we will effect them accordingly.

I also want to indicate that we have been caught in a scenario where if you go into our criminal court, young people are criminalised.  They have the capacity to commit crimes but we now want to separate general crimes with sexual crimes.  So we do not want, per se, to say they do not have criminal capacity.  Hence, we played around with words to say that we realise that in the Bill, we also have a clause that speaks about those minors or those young people who are more or less having the same ages and we said what do we do if they have sexual intercourse.  We want to refrain as much as possible from legislating issues of morality but we believe that we also want to help the social welfare, the probation officers in the conduct of their duties to deal with these young persons.  Hence, you will see that there is reference that there is need to refer those children that have had sexual intercourse among themselves to a probation officer and that probation officer will then inform the Prosecutor-General who is in charge of prosecution on whether they can be any action that needs to be taken.  Again, we will have a look at it and have further discussion on how we can refine it but we have taken into consideration that issues of morality - we want to refrain as much as possible from criminalising them and we want to ensure that like what other Hon. Members have said.  Hon. Molokele spoke very well that our children experiment and we need to guard against overly legislating and criminalising acts that our children have done. Hon. Mutodi spoke about Clause 8 that spoke about willful transmission of STIs and HIV.

          The way it is couched in the Bill is not correct.  The policy direction from the Executive was; where you sleep with a young person and you have been convicted, it becomes an aggravating factor if you have willfully transmitted an STI to that particular young person.   The assumption that we are coming from is, young persons are not sexually active and it is not very difficult to prove once you have been convicted, medical reports are there to prove that the young person contracted HIV and STIs and it should be an aggravating factor on sentencing. 

So again, we are going to change this so that it does not appear like we have generally reintroduced the clause that we repealed the last time when we brought the Marriages Act. Consenting adults, we are not going to criminalise those actions.   In fact, those that spoke, did so very well that it is very difficult to prove and worldwide studies have shown that criminalising does not reduce transmission levels.  In fact, Madam Speaker, if I may say this from other studies and from my other life.  There are several discordant couples and they can stay for years, the other one not seroconverting.  So if we say we are criminalising, we are saying, per chance, if you manage to contract, you are a criminal, but that one who has not contracted and nothing has happened, we say they are okay, there is discrimination, scientifically it does not mean that if people sleep together, automatically they will have HIV.   

So I want to take it to agree that it is a law that is very difficult to implement, hence the reason why the Executive, the last time when we had the Marriages Act, agreed with the submissions from those within the Ministry of Health and Child Care that we need to repeal it.  We now have an assumption that we have a case where somebody has been arrested for sleeping with a young person and medical reports are there that there has been infection. Those reports will indicate whether that particular young person was sexually active or not, and there we are saying it becomes an aggravating factor if you have infected that particular young person with STIs and HIV. Therefore, that particular clause will be amended accordingly and hence we will be bringing those amendments. 

Hon. Mushoriwa, I want to thank him very much for his contributions.  The other issues, I have indeed responded to. They were also covered by the report that was produced by the Committee.  Again, Hon. Mushoriwa spoke about a clause that I agree with. I said we need to have a look at it where it speaks about the defence that if you did not know that it is a young person, it then goes on to say that the stature or body of that particular individual does not matter and we need to make it clearer. We cannot legislate and leave our legislation vague and not specific.  It must be specific and hence I have instructed them to say, can we refine this in the manner that it is currently in the Bill.  It is very problematic. Therefore, I agree with Hon. Mushoriwa that we need to have a relook at it and ensure that it is corrected accordingly.

I want to go to Hon. Molokela-Tsiye, I want to thank him for his submission.  I did not know he is a rights and disability champion. He spoke very well, he indicated about children engaging in sex.  I think I have responded to that; age of consent, I have spoken about that. 

He spoke also about the Termination of Pregnancy Act. I do not agree Madam Speaker that we need entirely to repeal that particular legislation. Perhaps, we need conversation to say, can we broaden circumstances when termination of pregnancy maybe allowed.  Madam Speaker, there are instances when it becomes dangerous even to the mother to terminate pregnancy.  So you need to have a look at it and say, let us have situations where you say when the pregnancy is at this particular trimester - those in the medical field indicate that it is not safe even for the mother to terminate that particular pregnancy, but I think we need conversations to update our laws and ensure that they speak to who we are and what is obtaining on the ground, but not necessarily to remove it outrightly. 

He also spoke about, why we use ‘prostitute’ not ‘sex worker’?  I do not think it is a big problem, we can even use the word ‘sex worker’, to comply with what he believes is what is obtaining.  I do not agree that as a country we do not follow sheepishly and blindly what other jurisdictions are doing.  We are a country with our own moral values and our own culture.  So we want as much as possible, for somebody when they enter our borders, to say that this is who these people are, and not to necessarily follow everything that other people are doing.

Hon. Chiduwa, I want to thank you.  I have addressed the other issue which he was passionate about, he was very happy that we have brought back the issue of criminalisation of HIV - that is the beauty of democracy.  We have diverging views, but the policy position in this particular Bill was to have it as an aggravating factor when you have sexual intercourse with a young person.

Hon. Zhou was supporting the Bill indicating that there are certain issues in the Bill that have been refined and speaking to us not allowing relatives to have sexual relations. I agree with her that even in our animals like she rightly said, we do not want inbreeding.  

Having said that Madam Speaker, I am going to bring amendments to this particular Bill that speak to some of the issues that have been raised.  I want to thank the Hon. Members who have debated and move that the Bill be now read a second time.  I thank you.

Motion put and agreed to.

Bill read a second time.

Committee Stage:  Tuesday, 4th June, 2024.

MOTION

BUSINESS OF THE HOUSE

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI):  I move that Orders of the Day Numbers 4 to 19 be stood over, until Order of the Day Number 20 on today’s Order Paper has been disposed of.

Motion put and agreed to.

COMMITTEE STAGE

RESUMPTION OF CONSIDERATION OF AN ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON THE DEATH PENALTY ABOLITION BILL [H. B. 5, 2023]

          Twentieth Order read: Resumption of Committee Stage: Consideration of an Adverse Report by the Parliamentary Legal Committee on the Death Penalty Abolishment Bill [H. B. 5, 2023].

          House in Committee.

          HON. I. NDUDZO:  Hon. Chairman, with your leave, allow me to advise the Committee that following my presentation of the Parliamentary Legal Committee’s adverse report on the Death Penalty Abolishment Bill and subsequent discussions in the Committee of the Whole House, the Parliamentary Legal Committee held two meetings on the matter on 23rd and 28th February,  2024.  In these meetings, the Committee considered a draft notice of amendments proposed by Hon. Mushoriwa that intends to address the Committee’s concerns.

          I must report that on 28th February, 2024 in the Committee, the majority of Members of the Committee voted to withdraw the adverse report.  There was one descending opinion.  However, the majority of the Members took the view that the adverse report must be withdrawn as all the concerns raised in the adverse report will be incorporated into the Bill as it can be amended at a later stage.  I have held discussions also with the Hon. Minister of Justice, Legal and Parliamentary Affairs on the issues and he has also taken a view that the Executive does not have issues with the amendments as proposed.

          In the circumstances, I have to advise the House that the adverse report issued by the Parliamentary Legal Committee is withdrawn and the Committee has proceeded to issue a non-adverse report.  These events were duly communicated but due to some factors beyond my comprehension, they were not announced earlier.  I wish to bring this to your attention Mr. Chairman.  I thank you.

House resumed.

Progress reported.

HON. I. NDUDZO:  Thank you Madam Speaker. I now move, with leave, that this House having considered the matter to take note of the withdrawal of the Adverse Report issued by the Parliamentary Legal Committee on the Death Penalty Abolition Bill, and in its place, the Non-Adverse Report that accords that if the Bill would be enacted, would not be in contravention of the Declaration of Rights or some other provisions of the Constitution. I submit.

Motion put and agreed to.

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Thank you Madam Speaker. Hon. Mushoriwa brought this Bill as a Private Member’s Bill. So he is going to do a Second Reading speech. Thereafter, I would then be able to make my interventions.  I thank you.

SECOND READING

DEATH PENALTY ABOLITION BILL [H. B. 5, 2023]

HON. MUSHORIWA: Thank you Madam Speaker. I do move for a Second Reading of this Bill.  The Bill seeks to amend the Criminal Procedure and Evidence Act [Chapter 9:07(4) of the Genocide Act [Chapter 9:20].  The Criminal Law Codification and Reform Act [Chapter 9:23] and Section 3 of the Geneva Convention Act [Chapter 11:6] provide for matters connected with or incidental to the foregoing.  As you may be aware, what we intend to do is to make sure that we remove from our Statutes, the essence of sentencing people to death so that as a country, we move in the right direction.

Members may be aware as we did during our debate through the motion, the reasons that we forwarded in respect to us in terms of moving forward.  We realise that even from a Biblical perspective, Cain was the first murderer when he murdered his brother, but God in his wisdom, did not say that because you have murdered Abel, you should also then die, he did not do that.  We are also aware Madam Speaker that historically, in Zimbabwe, the question of death penalty has not been part of our culture.  We have a restorative justice system.  We are also aware Madam Speaker, that our national heroes and national heroines of the first Chimurenga and second Chimurenga faced this penalty.  We lost Mbuya Nehanda because of the colonial masters who came and tried to use the death penalty as a means and mechanism to instill fear into the hearts of our people. 

          The current President Emmerson Mnangagwa is there today, thanks to a technicality and that talks to the need for us to remove this death penalty.  Imagine, we would not be having President Mnangagwa as President of Zimbabwe today had he been hanged that time – [HON. MEMBERS: Hear, hear.] –

Madam Speaker, the removal of the death penalty

from our statutes is a move in the right direction.  At this juncture Madam Speaker, I want to applaud the support that the Hon. Members of this august House, led by the Government Chief Whip, gave during the motion to introduce the Bill.  More importantly, Madam Speaker, I also want applaud the Minister of Justice, legal and Parliamentary Affairs, Hon. Ziyambi Ziyambi and His Excellency and Cabinet for adopting the principles of this Bill so that we could actually move. 

          To that end Madam Speaker, I therefore move that this Bill be read a second time.  I thank you. – [HON. MEMBERS: Hear, hear.] –

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI):  Madam Speaker, I rise to thank Hon. Mushoriwa for taking the initiative as a Private Member to initiate this process and the Hon. Members in this 10th Parliament for rallying behind him.  Madam Speaker, I think it is a second and a first to have a Bill that ordinarily must be sponsored by the Executive, to be first sponsored by a Private Member and have all the Members in support – [HON. MEMBERS: Hear, hear.] -  I believe that it lays ground work for closer collaboration in terms of nation building, in terms of telling each other that when there are issues that pertain to building our nation, let us have eyes or lenses that are able to remove things that may be used by our detractors to allow us to fight each other and not focus on issues that will allow all of us to benefit.  I want to applaud Hon. Mushoriwa for that. 

          Madam Speaker, the Bill speaks to issues that His Excellency, the President and his Cabinet must be able to answer and because of that, when I do my second reading speech, I will then take over because some of the responses, when we are debating, will require that I answer on behalf of the Executive and Hon. Mushoriwa will not be able to do that.  So, I have agreed with him that he will also debate and support where he thinks that he may answer, but ultimately the responsibility to steer the Bill now rests with me.  This is the reason why, when I went to His Excellency and said we have this Private Bill, I want to bring it to Cabinet so that we put our heads together and say what is the policy direction – do we support it and Cabinet duly supported and in that meeting, His Excellency gave a very touching speech about his experiences on the death row.

Madam Speaker, if I may share with the Hon. Members here.  He actually indicated that when he was on death row, the responsibility to hang other death row inmates were on those that were on death row. They were ordered to go – you know at Harare Central Prison, there is a place where there is a nice lawn, beneath that lawn lie several comrades that were buried by fellow comrades who were on death row.   When he said this, almost all of us in Cabinet were touched. 

Like what Hon. Mushoriwa said, I think all of us were saying; ‘thank God for the technicality’, we have a President who is telling us about the inhumane treatment that the comrades who are still buried at Harare Prison went through.  I urge Hon. Members to support the removal of the sections in our statutes that allow for the death penalty to be executed.  It is not a sentence, it is a penalty, you just take away somebody’s life.  You cannot return the life.

Hon. Speaker Ma’am, I want to thank you, thank Hon. Mushoriwa, the Chief Whip, Hon. Members from this side and that side for the show of unity that you have shown in this august House. I thank you.  Having said that Madam Speaker Ma’am, I move that the debate do now adjourn. 

Motion put and agreed to.

Debate to resume: Thursday, 30th May, 2024.

On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI), the House adjourned at Five Minutes to Five o’clock p.m.

 

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