Closer to the Dream: 2023 Amendments of the Children’s Act (Chapter 5:06)
INTRODUCTION
The Children’s Act (Chapter 5:06) was adopted in 2001 amending the Children’s Protection and Adoption Act (Chapter 5:06) at the time. This adoption was an effort to domesticate various international standards in as far as the care and protection of children in Zimbabwe is concerned. After 22 years, another milestone amendment is done, being the Children’s Amendment Act No. 8 of 2023. The Amendment not only further strengthens child protection in Zimbabwe, but also aligns the country’s laws with international standards, as well as the changes brought about by the 2013 Constitution of Zimbabwe. A number of developments can be noted from the Amendment, although this article, which is Part 1 in the series, focuses on the introduction of various criminal sanctions, in the spirit of strengthening child protection in Zimbabwe.
CORPORAL PUNISHMEN
The dream is the eradication of all forms of violence against children. In Zimbabwe, a lot has been done; a lot more still needs to be done. A good example is making corporal punishment illegal both at home and in schools. One wonders why this has remained unchanged in our laws, especially when one reflects on the cases below.
“Nobert Majoni aged 14, died in the hands of his mother on 10 December 2015, who accused him of consuming rice that had been reserved by his baby sister for consumption the following day.”
(S v Chipika HB129-17),
“Linda Mutopa aged 8, who died in the hands of her grandmother after she consumed groundnut seed that had been reserved for planting.”
(S v Mutopa HB127-12),
and
“Linda Bongiwe Mnayathela aged 6, who died in the hands of her stepfather after he thought she was missing, looked for her frantically and found her at her uncle’s homestead: the search had caused him to be late at work.”
(S v Sibanda HB67-15)
The above cases demonstrate that there is a lot that still needs to be done in the protection of children’s rights. In a more recent case, S v Mutero HH178-23, the raging debate regarding the administration of corporal punishment on children by parents and guardians resurfaced, and it was acknowledged by the Court that whichever side one takes in the discourse, it is a fact that some of the unintended consequences of that method of instilling discipline in children may be ghastly. Sadly, corporal punishment has not been outlawed to date. However, on a positive note some remarkable strides have been made in the Children’s Amendment Act No. 8 of 2023, introducing various criminal offences which are discussed below.
CORRUPTION OF CHILDREN
This Amendment has retained the corruption of children as a criminal offence, but has departed from the previous maximum fine of level 10 (US$700) and the maximum sentence of 5 years imprisonment.
While the phrase “corruption of children” is not defined in the Act or the Amendment, it should be contextually constructed to mean circumstances where a child’s conduct or behavior is negatively influenced directly or indirectly by an adult.
In terms of section 8(1), corruption of children can be done by “any person”, meaning that a parent, relative, older sibling, teacher, religious leader or any adult other person is capable of corrupting a child and can be liable for criminal prosecution.
The following four criminal offences constitute corruption of children:
a) Allowing a child to reside in or to frequent a brothel. A penalty of a fine not exceeding level 12 (US$2,000) or imprisonment for a period not exceeding ten years or both such fine and imprisonment is preferred.
b) Causing or conducing to the seduction, abduction or commercial sexual exploitation of a child or the commission by a child of immoral acts. A penalty of a fine not exceeding level 13 (US$3,000) or imprisonment not exceeding 15 years or to both has been adopted or both such fine and imprisonment.
c) Causing a child to participate in child sexual abuse material or producing such material. Child sexual abuse material is defined in section 2 of the Amendment to “include any representation through publication, exhibition, cinematography, electronic means or any other means whatsoever, of a child engaged in real or simulated explicit sexual activities, or any representation of sexual parts or of a child for primarily sexual purposes.” A penalty of a fine not exceeding level 14 (US$5,000) or to imprisonment to a period not exceeding 15 years or both is provided for.
d) Participation in child grooming. Child grooming is defined in section 2 of the Amendment to mean “when someone builds an emotional connection with a child to gain their trust for the purposes of sexual abuse, child sexual abuse material, exploitation of the children or trafficking the child in contravention of the Trafficking in Persons Act (Chapter 9:25)”. A penalty of a fine not exceeding level 14 (US$5,000) or imprisonment to a period not exceeding 15 years or both is provided for.
DENYING A CHILD MEDICAL TREATMENT AND MEDICAL ACCESS
The second amendment to note is the one that relates to denying a child medical treatment and medical access. This amendment makes it a criminal offence for any parent or guardian to deny medical treatment or access to medical treatment to a child in their care or who is in need of such treatment. The Amendment imposes a penalty of a maximum fine of level 5 (US$200) and maximum sentence of 5 years imprisonment.
The import of this provision is that, it is not an excuse or defence that the parent or guardian denied the child medical treatment or access to medical treatment on account of religious grounds. However, it is a full defence if the parent of guardian proves that he or she had reasonable cause in breaching this section.
DUTY TO REPORT ABUSE OF A CHILD
The third amendment to note relates to the duty to report abuse of a child. It defines “abuse” as “any action for which under this Act a child would be treated as a child in need of care or protection or both, or in respect of whom there is a reasonable suspicion that any person having custody of the child is committing or has committed any offence specified in the First Schedule (Abduction, Child-stealing, Assault, any Sexual Offence and any offence involving bodily injury to a child).”
The section imposes a positive obligation to persons who are required or likely to interact with children in their professional or vocational capacity for example, medical practitioners, teachers, legal practitioners, ministers of religion, and so on, and become aware or suspect, on reasonable grounds, that a child has been, is being, or is likely to be abused, to report to a police officer or child protection officer.
While failure to report the abuse is not a criminal offence, it attracts the sanction by the professional or vocational body to which the person with a duty to report is a member, for instance the Law Society in case of Legal Practitioners, and the Health Professions Authority for Medical Practitioners. The Amendment thus makes failure to report the abuse a violation of professional ethics, warranting disciplinary proceedings against the member. The professional or vocational body can impose on its member, a fine, or suspension from practice, or expulsion from the professional or vocational body concerned.
CONDUCING TO COMMISSION OF OFFENCE BY A CHILD
The Fourth Amendment relates to conducing a child to commit an offence. The provision makes it a criminal offence for any person, including a parent or guardian, to encourage a child to commit an offence, trains a child in the commission of an offence, knowingly provides a child with facilities to commit an offence or being a parent or guardian fails to take reasonable steps to ensure that the child does not commit an offence. This section can be better understood through the legal maxim qui facit per alium per se which means “he who acts through another does the act himself.”
Again, in this amendment, the section refers to “any person, including a parent or guardian”, meaning that in addition to a parent or guardian, a relative, older sibling, teacher, religious leader or any other adult person can be liable for criminal prosecution for encouraging a child to commit an offence.
In the repealed section, the offender was liable to a fine or imprisonment of not more than 6 months. The Amendment introduces significant changes, which provide that the person, including a parent or guardian, shall be guilty of an offence and liable to the penalties that would have been imposed on him or her, had he or she been guilty of the offence the child committed. The provisions also empower the Court to order the convicted person to pay damages for personal injury or patrimonial loss proved during the course of the trial to have been caused to the injured party by the child.
CONCLUSION
Traditionally, children are regarded key to society, hence, their protection has been an issue of particular concern to communities and Zimbabwe as a nation. This has seen the Zimbabwean government ratifying most child rights instruments such as the United Nations Convention of the Rights of the Child in September 1990 and the African Charter on the Rights and Welfare of the Child in January 1992 among others. These have helped as a guideline for our laws to continue to align with the international standards for the strengthening of Child Protection in Zimbabwe. So much has been done and the changes brought through by the Children’s Amendment Act No. 8 of 2023 are applauded.
