Children In Need Network
Law reform in Zambia
The Zambian legal system is composed of judicial officers, law enforcement officers and legal practitioners. Legislation relating to the protection of children from sexual abuse and commercial sexual exploitation is largely contained in the Penal code and there is neither mentioned in the laws of Zambia a definition of child sexual abuse nor commercial sexual exploitation of children. Zambia has a dual legal system propagated by statutory and customary laws. The duo poses serious challenges in offering effective protection to children from sexual abuse and commercial sexual exploitation. The Zambian Constitution recognises the application of customary law.
The existence of child marriages is promoted by cultural practices, which are highly respected and rooted in the African customary law let alone the Zambian customs and traditions. The newly enacted law on combating trafficking in persons which include children seeks to combat child trafficking including their being commercially sexually exploited and sexually abused.
The amendments made to the Penal Code in 2005 address matters relating to child pornography and child marriages. The existence of the dual laws makes it difficult to protect children against commercial sexual exploitation and sexual abuse of children.
Whereas statutory law prohibits child marriages, on the contrary customary law legalizes.
Zambia is signatory to a number of international instruments addressing child sexual abuse, commercial sexual exploitation of children, child trafficking and child pornography. These are all encompassed in the Convention on the Rights of the Child which is a complete document containing the rights of children.
This brief therefore discusses the challenges in the Zambian legal system and laws in addressing sexual abuse and commercial sexual exploitation of children. Below are the sections discussing salient features of the Zambian legal system and legislation relating to sexual abuse and commercial sexual exploitation of children. It also discusses international standards and practice in addressing sexual abuse and commercial sexual exploitation of children.
National legal framework
Currently there is a review of laws relating to children and a number of consultative meetings are taking place. Additionally, comparative study visits have been undertaken abroad in order to study the legal framework with a view of repealing and replacing several pieces of legislation. The comparative studies undertaken include visits to South Africa , Namibia , Lesotho and Ghana . A number of challenges exist in the Zambian legal system and legislation as it relates to the following:
Definition of Child
There are multiple definitions of a child in the Zambian laws and these create disparities in interpretation
The aspects relating to remuneration in the process of marrying a girl child require to be examined in the context of exploitation. Children are involved in marriage in return for basic needs or favors, therefore” remuneration or other form of consideration” should include any form of reward whether promised or given to the child or third party. The “consideration” needs to be able to include food, shelter, drugs, drinks, consumer goods,, etc. These indirect forms of remuneration are crucial, as many children originally become involved in child prostitution because they are homeless, runaways or experiencing substance abuse problems. The consideration of the aspects of remuneration and consideration captures all forms of exploitation in broader sense of interpretation.
The Zambian law does not expressly prohibit child prostitution let alone adult prostitution. There is no definition in the Zambian legislation for child prostitution. If the fight against child prostitution is to be won, there is need for a deliberate enactment of the section in the penal law to strictly define child prostitution .The constitutive elements of the offence of child prostitution should include;
“The use of a child in sexual activities for remuneration or any other form of consideration and this include offering, obtaining, procuring or providing a child for child prostitution” Others are; oral sex, masturbation, sexual touching and fondling, posing and acts relating to the making of child pornography.
Adopting and incorporating the above elements into Zambian legislation would effectively address issues relating to the irrelevance of consent when dealing with involvement of children in sexual acts.The fight against child prostitution rests with the inclusion of addressing demand and supply through criminalizing clients, recruiters, mangers of premises and other intermediaries.
In Zambia , during the law reform consideration must be made to address these ingredients independent of the question of decriminalizing adults.
Deliberate steps must be taken to avoid criminalisation of children involved in prostitution. Children must always be treated as victims and not offenders when found to have been involved in prostitution or other form of commercial sexual exploitation. Criminalising children engaged in prostitution provides their exploiter with the opportunity to use threat of prosecution to coerce the child. In addition children who risk prosecution are unlikely to report the crime of their exploitation to law enforcement agents.
Commercial sexual exploitation
Commercial sexual exploitation of the girl – child is a complex phenomenon that is increasingly prevalent within and between countries. It involves the sexual exploitation of a girl-child in return for money or other valuable considerations to the girl’s parents or other third parties.Commercial sexual exploitation includes child prostitution, sex tourism, trafficking in girls for the purposes of prostitution or forced marriages. It also includes child pornography. Zambia signed and ratified the optional protocol to prevent, suppress and punish trafficking in persons especially women and children.
This is a positive step as government has through the Ministry of Justice introduced before parliament in July 2008, the Anti – Human Trafficking Bill of 2008. Though general, there are some sections, which provide for the protection of children from being trafficked as well as from being commercially exploited.
Child prostitution is the act of engaging or offering services of a child to perform sexual acts for money or other consideration. In sex tourism, the opportunity to engage in sex is offered to potential tourist as part of the tour package. Child trafficking is the procurement and transportation of children for the purposes of prostitution, pornography or forced marriages.
Many girls are at risk and the indications are that commercial sexual exploitation of girls is increasing at an alarming rate. The World Congress Against Commercial Exploitation of children, held in Stockholm in 1996, acknowledges this trend and calls for urgent action at national, regional and international level to combat the practice].
The study found that Zambia has not yet signed the optional protocol on the sale and involvement of children in pornography including sexual abuse and exploitation. This is in itself a risk factor that predisposes children to sexual abuse, as there is no basis under which interventions could be drawn or extracted from.
Extract from the April 2010 law Reform Brief