THE Constitutional Court has thrown out the matter in which Choma principal resident magistrate Exnorbit Zulu asked it to determine sections 14(3) and section 138(4) of the penal code chapter 88 of the Zambian laws in relation to Article 23 of the constitution, as the said articles only favour the female folk with regards to sexual crimes.
Constitutional Court president Hildah Chibomba, judges Ann Sitali, Mungeni Mulenga, Enock Mulembe and Professor Margaret Mnalula have held that the Constitutional Court has no jurisdiction to determine the matter as the issues raised by magistrate Zulu relate to the Bill of Rights and fall within the jurisdiction of the High Court.
Magistrate Zulu had referred the matter in which a 13-year-old juvenile is charged with defilement to the Constitutional Court for determination of section 14(3) and section 138(4) of the penal code chapter 88 of the Laws of Zambian vis-a-vis Article 23 of the constitution.
It is alleged that the juvenile on dates unknown but between November 20, 2019, in Choma district, had unlawful carnal knowledge of a child below the age of 16 years.
Magistrate Zulu said that section 131 A of the penal code defines a child as a person below the age of 16 years and the interpretation of the said provision, unlike offenses of rape and indecent assault which only protects the female gender, section 131A transcends gender and works to protect a child regardless of gender.
He noted that section 138(1) of the penal code suggests that the use of the words ‘child’ and ‘person’ could be deliberate as they could have been intended to convey a particular distinction between sexual capacity and sexual incapacity so that a child is one without capacity, while a person is one with sexual capacity.
“The word ‘person’ was loosely used to identify the species and age the law intended to protect. The word person in section 131 A and that in section 138(1) and section 14(3) do not carry the same meaning,” magistrate Zulu said.
“In my view, the net effect of section 14(3) section 138(1) and section 138(4) clearly shows that the law on point clearly works to protect the female gender from the male gender. Section 14(3) clearly imposes criminal liability only on male persons above the age of 12 years. This meticulously tailor the veil of protection conferred on children under section 138(1) to fit the girl child and not boys, otherwise how can one be said to be capable of having carnal knowledge at 12 years and expect him to benefit from a veil that places doli incapax (unable to commit a crime) at 16 years?”
Magistrate Zulu stated that the said provision stemmed from a stereotypical notion that a male child is predominantly sexually aggressive, while a female child is a prized possession whose chastity must be protected.
He said placing reliance on Article 23 of the constitution which proscribes discriminatory laws on the basis of sex he would wish to see to it that the law protects all children and treats them fairly and section 14(3) of the penal code does not meet such.
Magistrate Zulu said that the said provisions raised a cause for concern on the constitutionality of section 14(3) and the implication of section 138(4) of the penal code.
He said the questions for interpretation were whether section 14(3) of the penal code chapter 87 of the Laws of Zambia, which relinquishes the doli incapax of a boy child at the age of 12 years while maintaining the protection of the female child of similar age or older, but less than 16 years is discriminatory to the male child on account of sex thereby offending Article 23(1) and (3) of the constitution of Zambia.
Magistrate Zulu sought an interpretation on whether section 138(4) violates the spirit of the constitution by imposing criminal liability on a child that has by section 138(1) been said to be incapable of committing a sexual offense.
But the State argued that the question should have been referred to the High Court for determination as the matter was anchored on the Bill of Rights.
In her ruling, justice Munalula, on behalf of others, said even if the Constitutional Court had jurisdiction to interpret any provision in the constitution, its power had been limited by Article 128.
“It is our holding that this court cannot determine the issues that have been raised in the first question by the presiding principal resident magistrate hinging on Article 23 which forms part of the provisions reserved for the High Court,” she said.
Justice Munalula stated that constitutional questions relating to human rights must be referred to the High Court under Article 28 (2) of the
constitution and only those referrals relating to the rest of the constitution should be directed to the Constitutional Court under Article 128(2).
She said that there was no merit in the second question on whether section 138(4) violates the spirit of the constitution by imposing criminal liability on a child that has, by section 138(1), been said to be incapable of committing a sexual offence.
“The second question as presented in the alternative does not raise a different issue. The second question does not state which constitutional provision has been or is being contravened by section 138(4) of the penal code but amplifying the first question.
“For the reasons given above, the matter is dismissed in its entirety. No order is made as to costs,” said justice Munalula.