The
First
Abandonment
In
May
2022,
the
Constitutional
Court
issued
a
judgment [link] declaring
that
the
Criminal
Law
Code
did
not
adequately
protect
children
between
ages
of
16
and
18
from
sexual
exploitation.
For
that
reason,
the
Court
said,
certain
provisions
of
the
Code
–
the
definition
of
“young
person”
in
section
61
of
the
Code
and
sections
70,
76,
83
and
86
–
were
unconstitutional
and
void.
The
Court
however
suspended
its
order
for
12
months
–
until
the
23rd
May
2023
–
to
give
the
Government
time
to
enact
a
law
protecting
all
children
against
sexual
exploitation.
The
Government
did
nothing
to
comply
with
the
Court’s
order,
so
on
the
24th
May
2023
the
provisions
of
the
Code
became
void:
they
ceased
to
exist
in
law.
The
result
was
that
there
was
no
longer
a
law
that
protected
children
adequately
against
sexual
exploitation.
To
understand
what
this
meant,
some
explanation
may
be
needed.
Under
the
common
law
and
under
the
Code,
young
children
are
deemed
to
be
incapable
of
consenting
to
sexual
acts,
and
the
age
below
which
they
cannot
consent
is
currently
fixed
at
12
years.
Hence
sexual
intercourse
with
a
girl
below
the
age
of
12
amounts
to
rape
even
if
she
purported
to
consent
to
it,
because
she
is
incapable
of
giving
consent.
Similarly,
anal
sexual
intercourse
with
a
boy
under
the
age
of
12
is
aggravated
indecent
assault
even
if
he
purported
to
consent.
For
children
above
the
age
of
12
however
the
law
offers
no
similar
protection.
The
provisions
of
the
Code
which
the
Constitutional
Court
declared
to
be
void
did
protect
children
up
to
the
age
of
16
years,
by
making
it
a
crime
to
engage
in
sexual
activity
with
them
even
if
they
consented,
but
after
the
23rd
May
2023
those
sections
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
activity
with
them
was
generally
not
a
crime
if
they
consented
to
it.
Sexual
predators
and
paedophiles
could
operate
with
virtual
impunity.
Government
Takes
Action
Finally,
late
in
2023
the
Government
bestirred
itself
and
took
action.
With
the
assistance
of
Veritas
a
Bill
was
drafted
–
the
Criminal
Laws
Amendment
(Protection
of
Children
and
Young
Persons)
Bill [link] –
to
restore
the
impugned
provisions
to
the
Criminal
Law
Code,
with
changes
that
would
make
them
constitutional.
Because
of
the
urgency
of
the
situation,
the
President
incorporated
the
Bill’s
provisions
in
a
set
of
regulations
under
the
Presidential
Powers
(Temporary
Measures)
Act,
which
were
published
on
the
12th
January
this
year.
The
regulations,
which
can
be
accessed
on
the
Veritas
website [link],
came
into
operation
immediately
and
provided
immediate
protection
to
young
persons,
but
only
temporary
protection
because
regulations
made
in
terms
of
the
Presidential
Powers
(Temporary
Measures)
Act
expire
after
180
days.
In
this
case
the
President’s
regulations
expired
on
the
10th
July
2024.
Meanwhile
the
Bill
was
presented
in
the
National
Assembly
on
the
7th
March
and
began
its
progress
through
Parliament.
No
one
opposed
the
Bill
–
indeed
it
was
applauded
in
the
National
Assembly
and
the
Senate
–
but
its
progress
was
rather
leisurely.
It
passed
its
final
reading
in
the
Assembly
on
the
18th
June
and
in
the
Senate
on
the
9th
July,
just
one
day
before
the
President’s
regulations
expired.
The
Second
Abandonment
And
there,
inexplicably,
things
stopped.
The
next
stages
in
the
Bill’s
progress
–
Presidential
assent
and
publication
in
the
Gazette
as
an
Act
–
have
not
taken
place.
Parliament
should
have
sent
the
Bill
to
the
President
for
assent
immediately
it
was
passed
by
the
Senate,
in
view
of
the
imminent
lapsing
of
the
Presidential
regulations,
but
there
has
been
no
public
notification
that
this
was
done
(as
required
by
section
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
regulations
have
lapsed
and
Bill
has
not
been
brought
into
force
so
the
criminal
law
no
longer
protects
children
against
sexual
predation
except,
as
explained
above,
in
cases
involving
rape
where
there
has
been
no
consent. Veritas
is
approaching
the
Minister
of
Justice
and
Counsel
to
Parliament
to
rectify
this
situation
without
delay.
Conclusion
It
is
appalling
that
children
should
be
left
unprotected
in
this
way.
Last
year,
according
to
the
Minister
of
Primary
and
Secondary
Education,
over
4 500
girls
dropped
out
of
school
after
falling
pregnant
–
and
134
of
them
were
primary
school
pupils.
No
doubt
many
of
them
were
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
inaction
following
the
Constitutional
Court’s
order.
Now
teenagers
are
again
left
unprotected
as
a
result
of
inaction,
this
time
the
Government’s
failure
to
bring
remedial
legislation
into
force.
Addendum
The
Minister
of
Justice
has
replied
to
Veritas
letter
saying
the
Act
will
be
gazetted
this
coming
week.
Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
for
information
supplied.
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