3.3. CRIMINAL LAW (CODIFICATION AND REFORM) ACT The Criminal Law (Codification and Reform) Act60 (the Code) deals with the ages of criminal liability in Zimbabwe. a. Children Below Seven Years A child below the age of seven years shall be deemed to lack criminal capacity to commit any crime. The child cannot be tried or convicted of any criminal offence.61 The Committee on the Rights of the Child has stated that the age of 7 years is way too low and the recommendation has been to increase the age to an absolute minimum of 12 years.62 b. Children between the Age of 7 and 14 Years Children between the age of 7 years and 14 years are presumed to lack the capacity to form the intention or where negligence is an element of the crime concerned, to lack the capacity to behave in the way that a reasonable adult would behave in the circumstances.63 This is rebuttable depending on the circumstances of each case. The onus is on the state to establish beyond reasonable doubt that the accused child was mature and did understand that the act constituting the offence was wrongful. The presumption of immaturity can be rebutted “if, at the time of the commission of the crime for which the child is charged, the child was sufficiently mature to understand that his or her conduct was unlawful or morally wrong; and to be capable to conforming with the requirements of the law.” 64 In deciding whether a child was sufficiently mature to have the required understanding and capacity, the court must take into account the following;  nature of the offence the child is charged with,  child`s maturity and background,  the child`s knowledge, education and experience, and  the child`s behavior before, during and after the conduct which forms the basis of the charge.65 This approach has been criticized because it leaves the assessment of the child's maturity in the sole discretion of judicial officers and may result in confusion and discriminatory practices. 66 This is particularly the case in Zimbabwe where there is a shortage of probation officers and resources for those who are there to carry out assessments of the circumstances of the child and report to the court. It is however pertinent to note that the Code provides that no child under the age of 14 years shall be tried without the authority of the Prosecutor General.67 c. Sexual cases The irrebuttable presumption that a boy below the age of 14 years is incapable of having sexual intercourse does not apply in Zimbabwe for boys who have reached the age of 12 years. There is now a rebuttable presumption that a boy over the age of 12 years but below 14 years is incapable of performing sexual 60 Criminal Law (Codification and Reform) Act Chapter 9:23 Section 6 of the Code 62 General Comment No. 10 (2007) op cit p8 63 Section 7 of the Code 64 Section 230(1) of the Code 65 Section 230(3) of the Code 66 General Comment No. 10 (2007) op cit p8 67 Section 231 of the Code 61 16