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Women Welcome Sexual Offences Act - Other New Laws Blasted
Women and AIDS Support Network (WASN)
Vol 12 WASN News 2002
July 01, 2002

By Matilda Moyo

The last few months have seen the enactment of new laws that have a direct bearing on the work of various organisations and WASN is no exception.

These laws are mainly the slightly positive Sexual Offences Act, the widely criticised Public Order and Security Act (POSA) as well as the Access to Information and Protection of Privacy Act.

The Sexual Offenses Act, promulgated as law late last year, has been hailed as a victory for women and if properly implemented, could go a long way in curbing the spread of HIV. The law seeks to protect women, children and the intellectually handicapped from various forms of sexual abuse.

According to Ruvimbo Masunungure of the Zimbabwe Women Lawyers’ Association (ZWLA), the Act criminalises the deliberate transmission of HIV.

"It is mandatory for persons accused of rape to be tested for HIV, for purposes of sentencing. Accused persons cannot refuse to be tested and results of the test are released on conviction," she said.

In addition, she says, knowledge of HIV status is not only actual, but also that the accused ought to have known that he was HIV positive. Willful transmission of HIV could attract a prison sentence of up to 20 years.

Among its other positive aspects, the Act broadens the definition of sexual offences to include oral sex, such as the licking or sucking of private parts. It also widens the definition of rape beyond penal penetration, to the use of any other objects that are inserted into either the vagina or the anus.

The Act further recognises the existence of and criminalises marital rape, albeit impliedly, and in addition to protecting girl children, it acknowlegdes that sexual offences can be committed against boys.

Furthermore, it suppresses the operation of brothels and criminalises the trafficking of women and young people for the purposes of sexual activities.

Under this law, it is an offence to be sexually involved with persons under the age of 16 years, including indecent assault, fondling, any act or words that have sexual connotations.

However, there are some gaps in the Act, which may affect its effectiveness in some instances.

According to Masunungure, one of the problems with the Act is that the burden of proving that the perpetrator was HIV positive lies with the victim.

"It is not easy to tell whether or not the victim is already HIV positive when the offence is committed against her or whether the accused was positive when he committed the offence. The accused may get infected after the offence has been committed," she pointed out, adding that the Act was also silent on support systems for victims such as the provision of drugs.

Another loophole in the Act is that offenders are tested soon after a charge is brought against them, during which period the offender might still be in the window period if they have just been infected and therefore might test negative when in fact they are HIV positive.

There is no clarity on what happens in the event that both the accused and the victim were positive at the time the offence was committed.

The Act is ambiguous on whether the clause on marital rape includes customary law unions. On the willful transmission of HIV, it is difficult for one spouse to sue as the other may counter sue since both may not know for sure who infected the other and when.

The clause that criminalises the deliberate spread of HIV is very broad resulting in questions such as "what happens to a woman, who knowing her HIV status, knowingly becomes pregnant and transmits the HIV virus to her baby?"

Still on that clause, there were questions about the possibility of suing the Ministry of Health for failing to provide protection for care givers of terminally ill people who were being looked after under Home-based care programmes. These care givers, who are mostly women, risked being infected during the execution of their duties due to lack of protective equipment.

One of the major criticisms against the Act is that it does not create support systems such as free drugs and counselling for victims sexual offences. There is also need for it to acknowledge that even if a survivor of rape is HIV positive prior to the incident, there is still a chance of reinfection as a result of the rape.

In addition to these gaps, it is generally felt that there are also social and cultural issues that may make it difficult to implement the Act. Marital rape, for instance, would be difficult for most women to report, given the cultural meaning of lobola, traditional and religious beliefs as well as the economic dependence of women on their husbands. Furthermore, a woman is not likely to report a partner who has deliberately infected her with HIV as there is no real benefit to it and this may in fact stigmatise her. Also, it is difficult for a woman who has tested HIV positive but is forced to get pregnant by her partner because there are chances that she will transmit the virus to the baby. In addition, what happens if a woman tells a potential rapist about her HIV status and he proceeds to rape her?

All these according to legal experts, are loopholes that could be used against women, who are in actual fact victims.

Despite these concerns, the Sexual Offences Act has been welcomed as a milestone and a good starting point in the battle for women’s sexual and reproductive rights.

Another piece of legislation that was enacted early this year, and could affect the operations of ngo’s is the widely condemned Public Order and Security Act, popularly known as POSA.

According to legal experts, POSA requires that any organisation seeking to hold a public gathering should notify the police of its intention in advance for the sake of public order. To be on the safe side, ngo’s therefore have to follow this procedure, even for a mere health workshop.

According to Section 24 of the Act:‘The organiser of a public gathering shall give at least four clear days’ notice of the holding of the gathering to the regulating authority for the area in which the gathering is to be held.’

"The Act requires that police are notified of meetings and there is no distinction between political and non-political gatherings," says Dr Lovemore Madhuku, a constitutional law expert, adding that as a result, meetings between ngo’s and their constituents are not exempted.

Under the Act, a gathering means a public meeting which is defined as "any meeting in a public place or meeting which the public or any section of the public is permitted to attend, whether on payment or otherwise."

Since the Act does not specify the types of meetings that require police clearance, to be on the safe side, it is advisable for ngo’s to seek clearance in advance and avoid the disruption of their meetings.

In addition, the police reserve the right to deny the organisation permission to host its meeting, if they have reason to believe that it will disrupt public order.

One of the major criticisms against this piece of legislation is the fact that many people perceive it as giving too much power to ordinary police officers, thereby making it open to abuse. For instance, when seeking permission to hold a public gathering, one has to apply to a regulating authority and these authorities include police officers.

Although according to the Act some public gatherings such as weddings, baptisms and funerals, are exempted from some of these regulations, there is no clarity on how far these laws govern the operations of non governmental organisations and their functions.

Of particular concern are sections 5, 6 and 16, which have been criticised as being too wide and all-encompassing.

According to legal experts, the Act outlaws criticism of government or its policies, particularly in a public place and this is could negatively affect advocacy work.

"Under POSA, any criticism of government policy or any action that seeks to change government police will be seen as an offence," warned constitutional lawyer and legal expert, Dr Lovemore Madhuku.

If, at a workshop, a participant asks a question that borders on government policy and a response that attacks government is given, already the person who has given that answer has committed an offence.

The Access to Information and Privacy of Protection Act, although largely aimed at regulating the media, also affects certain ngo’s in that it creates barriers to access to information.

Under this law, anyone requiring information on an issue from any government ministry, has to apply for it in writing to the minister responsible. Further to this, the law states that a fee may be charged for that information, although this has not yet been effected.

If one is denied access to information by the relevant authority, there is still room to appeal to a Media and Information Commission established in Section 38 of the Act.

However, the Act also has one positive aspect in that it creates a mechanism that enables people to access information.

"Without the Act, you have no right to information so it tries to create mechanisms for access to information and this would have been acceptable if it had been done properly. However, it provides restrictions which are such that there is not much difference between what exists now and what existed then," he notes.

In conclusion, Madhuku said these two acts "create a political environment in which it is very difficult to carry out genuine work."

For more information, contact Women and AIDS Support Network (WASN) using email - wasn@mweb.co.zw.

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