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Same-sex smooch banned in Zimbabwe law reform
July 10, 2006

ZIMBABWE has expanded the scope of its sodomy laws.

An intimate hug or smooch between people of the same sex may now constitute a crime.

The dramatic changes to the country's criminal law, which took effect last Saturday, are contained in the Criminal Law (Codification and Reform) Act of 2004 passed by parliament two years ago but which only took effect last Saturday.

It creates 15 new crimes, abolishes others and redefines sodomy and rape.

Lawyers, police officers, prosecutors and judges complain that they were not adequately trained or informed about law reforms in the two-year gap between their passage and adoption.

Before the changes to the law, sodomy, under Section 73, referred only to anal sexual intercourse between males. The code has expanded the scope of this crime.

It now includes not only acts of anal sexual intercourse, but also includes any act involving physical contact between males that would be regarded by a reasonable person as an indecent act.

Professor Geoff Feltoe of the University of Zimbabwe, in a commentary on the new criminal code, says a seemingly intimate embrace or hug between two men would presumably be construed as a crime.

Zimbabwe has refused to bow to pressure from gay groups to abolish its sodomy laws. President Robert Mugabe regularly lashes out at gays and lesbians, and once famously called them "worse than dogs and pigs".

The reforms also include the redefinition of crimes of assault, culpable homicide, while new crimes which include unauthorized borrowing, making off without payment, inciting or assisting suicide, computer-related crimes (cyber crimes), threatening to commit specified crimes, obstructing a public official, among others, have been created.

The crime of rape, Section 65, continues to be a crime that is committed by a male who has non-consensual sexual intercourse with a female. However, the crime has been extended to cover a situation where a male has non-consensual anal intercourse with a female.

A new sexual crime, aggravated indecent assault, has been created. This crime is committed where a male or female commits an indecent assault involving non-consensual penetration with intent of any part of the body of the victim or perpetrator. It is more serious than the crime of indecent assault, which does not involve any such penetration.

In his analysis, Professor Feltoe said the crime of assault, which had a distinction between "common assault" and "assault with intent to cause grievous bodily harm", (GBH), has been abolished. All assaults except indecent assaults now fall under the single crime of assault. The seriousness of the assault will now be a matter of sentence.

A new crime, negligent assault (Section 90), has been created. This covers situations where the accused person did not intend to inflict serious bodily harm but was negligent in causing such harm.

Inciting or assisting (Section 50) is another new crime that has been created which consists of inciting another to commit suicide or assisting a person to commit suicide.

The traditional practice of handing over of a female person to settle a debt or delict has seen the creation of a new crime called pledging a female person.

It is now a crime to borrow or use without authorization any property belonging to another. The crime, unauthorized borrowing, used to cover use of a car or boat only but now includes any property.

Another new crime, making off without payment, has been created. This crime will cover situations where "services" rather than "goods" are stolen. Also within the scope of this crime is the consumption of goods for which payment after consumption is required but has not been made: in these circumstances the intention to "deprive another person permanently" of ownership, possession or control is incapable of proof, because it may only have been formed after the goods were consumed and therefore no longer capable of being owned, possessed or controlled by anybody.

Threatening to commit specified crimes (Section 184) is another new crime in the code. A person who threatens to commit such crimes as murder, rape, kidnapping or other crimes specified in the section will be guilty of an offence.

A person commits this crime where he or she threatens to commit the crime, intending to inspire or realising that there was a real risk of inspiring in the person threatened a reasonable fear or belief that the accused would commit the crime concerned.

Theft by false pretences as a crime has been abolished and in future what used to be theft by false pretences would be treated as cases of fraud by the courts.

The crime of stock theft has also been changed. Now there is the continuing nature of theft and stock theft. Previously the law on theft provided that a person continued to commit the crime of theft for as long as the stolen property remains in the possession of the thief, but the code drastically changes this rule to provide that theft or stoke theft continues to be committed, regardless of whether the offender has lost possession of the property. A thief may be tried in whichever magisterial district he/she last possessed the property.

On the uttering (Section 137 (2)), although the Common Law crime of forgery is retained, the code abolished the existing crime of "uttering", which basically is passing off as genuine a forged document and provides that in future uttering will be treated as fraud. If the utterer also forged the document in question, he or she will be liable both for forgery and fraud.

Sections 162 and 168, that deal with computer-related crimes, create a series of new crimes pertaining to the deliberate misuse of computers, credit cards, passwords and personal identification numbers. Such misuse creates the potential for fraud, sabotage and other harm to the public interest. Such crimes are often collectively described as "cyber crimes".

Subornation of perjury is no longer chargeable under Common Law. The Common Law crime of subornation of perjury has been abolished. Instead, if person X incites person Y to commit perjury, person X will be charged with incitement to perjury or if the incitement succeeds and person Y gives false testimony, person X will be charged as an accomplice to the perjury committed by person Y.

The code also caters for the Common Law crime of incest (with modifications) but also now accommodates Customary Law notions of incest under a crime called sexual intercourse within a prohibited degree of relationship (Incest, Section 75).

Other new crimes include corruptly concealing from a principal a personal interest in a transaction, obstructing a public official, impersonating a police officer or public official, deliberately supplying false information to a public authority and negligently causing serious damage to property among others.
Previous crimes like housebreaking, arson and malicious injury to property and contempt of court have either been codified or completely reformulated to become unlawful entry into premises, malicious damage to property, defeating or obstructing the course of justice, respectively.

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