The law fails its children again

The first abandonment

In May 2022, the Constitutional Court ruled (link) which declared that the Criminal Code did not adequately protect children between the ages of 16 and 18 from sexual exploitation. For that reason, the Court said, certain provisions of the Code – the definition of “juvenile” in section 61 of the Code and sections 70, 76, 83 and 86 – were unconstitutional and void. However, the Court stayed its order for 12 months – until May 23, 2023 – to allow the government time to enact a law protecting all children from sexual exploitation.

The government did nothing to comply with the Court’s ruling, so on May 24, 2023, the Code’s provisions became null and void: they ceased to exist in law. The result was that there was no longer a law that adequately protected children from sexual exploitation.

To understand what this means, some explanation may be necessary. Under common law and the Code, young children are deemed incapable of consenting to sexual acts, and the age at which they cannot consent is currently set at 12. Therefore, sexual intercourse with a girl under 12 amounts to rape, even if she claims to consent, because she is incapable of giving consent. Similarly, anal intercourse with a boy under 12 is aggravated sexual assault, even if he claims to consent. However, the law does not provide similar protection for children over 12. The provisions of the Code that the Constitutional Court annulled protected children up to the age of 16, by making it a crime to engage in sexual activity with them, even if they consented, but after 23 May 2023, those provisions no longer existed in law. After that date, the criminal law treated girls and boys over the age of 12 as if they were adults: sexual acts with them were generally not a crime if they consented. Sexual predators and pedophiles could operate with virtually no impunity.

Government takes action

Finally, in late 2023, the government took action. With the help of Veritas, a bill was drafted – the Criminal Laws Amendment (Protection of Children and Young Persons) Bill (link) – to restore the contested provisions of the Criminal Code, with amendments that would make them constitutional. Due to the urgency of the situation, the President has incorporated the provisions of the bill into a series of regulations under the Presidential Powers (Temporary Measures) Act, which were published on January 12 of this year. The regulations, which can be accessed on the Veritas website (link)went into effect immediately and provided immediate protections to young people, but only temporary protections because the regulations created under the Presidential Powers (Temporary Measures) Act expire after 180 days. In this case, the President’s regulations expired on July 10, 2024.

Meanwhile, the bill was presented in the National Assembly on March 7 and began its progress through parliament. No one opposed the bill – it was even applauded in the National Assembly and the Senate – but its progress was rather slow. It was last discussed in the Assembly on June 18 and in the Senate on July 9, just one day before the President’s regulations expired.

The second abandonment

And there, inexplicably, things stopped. The next steps in the Bill’s progress – presidential assent and publication in the Government Gazette as law – did not take place. Parliament should have sent the Bill to the President immediately after Senate approval, in view of the impending expiration of the Presidential Regulations, but there was no public notice that this had happened (as required by Article 131(5) of the Constitution), so presumably Parliament has not yet sent it.

Whatever the reason for the delay, the result is clear: the President’s regulation has expired and the bill has not come into force, so the criminal law no longer protects children from sexual predation, except, as explained above, in cases of rape without consent. Veritas is approaching the Minister of Justice and the Counsel for Parliament to rectify this situation without delay.

Conclusion

It is appalling that children are being left unprotected in this way. Last year, according to the Minister of Primary and Secondary Education, more than 4,500 girls dropped out of school after becoming pregnant – and 134 of them were primary school pupils. Many of them were undoubtedly impregnated by fellow pupils, but at least some of them must have been victims of sexual predation by older men. Those victims were not protected by the criminal law as a result of the government’s failure to act following the Constitutional Court order. Now teenagers are being left unprotected again as a result of the government’s failure to enact remedial legislation.

Addition

The Minister of Justice has responded to Veritas’ letter and indicated that the law will be published in the Government Gazette next week.

Veritas makes every effort to provide reliable information, but cannot accept any legal responsibility for the information provided.