CHINTU MALAMBO writes
THE Constitutional Court has been asked to interpret the alleged favouritism of female folks with regards to sexual crimes as proscribed in sections 14(3) and 138(4) of the penal code chapter 88 of the Zambian laws, Article 23 of the Constitution.
Choma principal resident magistrate Exnorbit Zulu has asked the Court to determine the said provisions of the law.
Magistrate Zulu sought the Constitutional Courts intervention in connection to a matter in which a 13 year old juvenile before him is charged for defilement.
It is alleged that the juvenile on dates unknown but between November 20, 2019 in Choma district had unlawful carnal knowledge of a child below the age of 16 years.
Magistrate Zulu said the questions for interpretation are whether section 14(3) of the penal code chapter 87 of the laws of Zambia which relinquishes the doli incapax of a boy child at the age of 12 years while maintaining the protection of the female child of similar age or older, but less than 16 years is discriminatory to the male child on account of sex thereby offending Article 23(1) and (3) of the constitution of Zambia and in the alternative.
He further wants an interpretation on whether section 138(4) violates the spirit of the constitution by imposing criminal liability on a child that has by section 138(1), been said to be incapable of committing a sexual offense.
Magistrate Zulu argued that section 131 A of the penal code defines a child as a person below the age of 16 years and the interpretation of the said provision unlike offenses of rape and indecent assault which only protects the female gender, section 131A transcends gender and works to protect a child regardless of gender.
He stated that section 138(1) of the penal code suggests that the use of the words ‘child’ and ‘person’ could be deliberate as they could have been intended to convey a particular distinction between sexual capacity and sexual incapacity so that a child is one without capacity, while a person is one with sexual capacity.
“The word ‘person’ was loosely used to identify the species and age the law intended to protect. The word person in section 131 A and that in section 138(1) and section 14(3) do not carry the same meaning.
“In my view the net effect of section 14(3) section 138(1) and section 138(4) clearly shows that the law on point clearly works to protect the female gender from the male gender. Section 14(3) clearly imposes criminal liability only on male persons above the age of 12 years. This meticulously tailor the veil of protection conferred on children under section 138(1) to fit the girl child and not boys, otherwise how can one be said to be capable of having carnal knowledge at 13 years and expect him to benefit from a veil that places doli incapax (unable to commit a crime) at 16 years,” Magistrate Zulu said.
He stated that the said provision is stemmed from a stereotypical notion that a male child is predominantly sexually aggressive, while a female child is a prized possession whose chastity must be protected.
He said placing reliance on Article 23 of the constitution which proscribes discriminatory laws on the basis of sex he would wish to see to it that the law protects all children and treats them fairly and section 14(3) of the penal code does not meet such.
Magistrate Zulu argued that the said provisions raised a cause for concern on the constitutionality of section 14(3) and the implication of section 138(4) of the penal code.
