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
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