intercourse unless the contrary is shown on a balance of probabilities.68 There are cases where the Prosecutor General has wrongly authorised the prosecution of boys below the age of 12 years for rape and the courts have continued with trial on the basis of that authority. This has strengthened the need to build the capacity of officials in the justice system. Zimbabwe recently introduced the crime of aggravated indecent assault which can be committed even by any female person who has sexual intercourse with or commits upon a male person any other act involving the penetration of any part of a male person's body or of her own body or commits upon a female person any act involving the penetration of any part of the other female person's body or of her own body with indecent intent without the other person's consent.69 There is no minimum age limit prescribed for this offence yet for rape the legislature has provided for the age of 12 years. This causes discrimination between girls and boys. d. Criminal Capacity of Children Over 14 Years Children above the age of 14 years are presumed to have the capacity to form the necessary intention to commit any crime or, where negligence is an element of the crime concerned, to behave in the way that a reasonable person would have behaved in the circumstances of the crime.70 These children can therefore be tried for offences without the Attorney General’s consent. The onus is upon them to rebut the presumption. 3.4. CRIMINAL PROCEDURE AND EVIDENCE AMENDEMENT ACT, 2016 The Criminal Procedure and Evidence Act was amended in 2016 to align to the Constitution. The Act defines a legal representative in relation to an accused person under the age of sixteen who is assisted by his natural or legal guardian as that particular guardian.71 The court can also permit another person to assist any person who is charged with a criminal offence in his defence.72 This provision can be used to allow a child above the age of 16 years to be assisted by any other person, including his natural or legal guardian. The Act compels the police officer, unless otherwise directed by a Magistrate, upon arresting a person under the age of 18 years to warn the parents or guardians of such to appear in court. However, despite the Constitutional provisions on non-discrimination, this provision still does not apply to a person under the age of 18 years but has been married or emancipated. The parent should be available to offer support to the child during the process of juvenile justice. Section 135 of the CPEA provides for the release of juvenile offenders without bail by a judge, magistrate or police officer. This is in respect of accused persons under the age of 18 years charged with any offence other than murder, treason and rape. The child can be released and warned to appear in court, or released to the care of the person in whose custody he is and warn that person to bring or cause him to be brought to court. The child may also be placed in a place of safety pending his appearance in court. It is undesirable to remand a juvenile in custody except in exceptional circumstances. The police must operate according to a presumption against detention. In terms of the law, a child can be released even where he does not have a guardian but the general practice at the police stations and courts has been to detain all those children without a guardian. In its work providing legal representation to children, JCT noted that police officers even use the offence allegedly committed by the child to determine his age where there is no birth certificate. In the majority of cases children are arrested without the birth certificates. Many children who are alleged to have committed serious offences end up being treated as adults and thereby detained until they appear in court. If the magistrate is not satisfied about the age of the child, estimation by a dentist is required. This has only worked where there are government doctors close by while those children in remote areas languish in remand prisons for inordinate periods awaiting the medical report. This violates the fundamental rights of the child like the right to liberty. 68 Section 63 of the Code Section 66 of the Code 70 Section 8 of the Code 71 Section 2 of the CPEA 72 Section 191(c) of the CPEA 69 17