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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.
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
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.
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
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
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
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.
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
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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