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
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