THE Constitutional Court has dismissed a case in which Choma Principal Resident Magistrate Exnorbit Zulu wanted it to interpret certain sections of the Penal Code in relation to sexual crimes, which he said were discriminatory against the male child.
ConCourt president Hildah Chibomba, judges Annie Sitali, Mungeni Mulenga, Enock Mulembe and Prof Margarate Munalula have held that the ConCourt had no jurisdiction to determine the matter.
The court adds that this is because the issues raised by Magistrate Zulu relating to the Bill of Rights fall within the jurisdiction of the High Court.
In this matter, Magistrate Zulu wanted the ConCourt to determine sections 14 (3) and 138 (4) of the Penal Code chapter 88 of the Zambian laws in relation to Article 23 of the Constitution.
He stated that the pieces of law appear to be protecting a female child in relation to their age in defilement cases.
However, in a ruling dated July 16, 2020, Prof Munalula said on behalf of other judges that even if the ConCourt had jurisdiction to interpret any provision in the Constitution, that power had been limited by the subjection of Article 128 to Article 28 so that the jurisdiction to determine any issue within the Bill of Rights is reserved for the High Court.
“It is our holding that this court cannot determine the issues that have been raised by the presiding Principal Resident Magistrate as the same hinge on Article 23, which forms part of provisions reserved for the High Court. Our brief guidance to the Subordinate Court is that constitutional questions relating to human rights must be referred to the High Court under Article 28 (2) of the Constitution. Only those referrals relating to the rest of the Constitution, should be directed to this court under Article 128 (2),” she said.
“For the reasons given above, the matter is dismissed in its entirety. In the circumstance, we make no order as to costs.”
In this matter, Magistrate Zulu had referred to a case in which a 13-year-old boy of Choma is accused of defiling a fellow minor aged below 16.
It is alleged that on November 20, 2019, in Choma, the juvenile offender had unlawful carnal knowledge of a child below the age of 16.
When the juvenile offender appeared before Magistrate Zulu in February, the Magistrate said the case needed interpretation.
He then referred it to the ConCourt for interpretation contending that section 131 of the Penal Code defines a child as a person under the age of 16.
Magistrate Zulu stated that unlike offences of rape and indecent assault, which only protects the female gender, section 131 (a) transcends gender and works to protect a child regardless of gender.
He stated 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.
Magistrate Zulu stated that it appeared section 138 (1) described a child as one without sexual capacity and a person as someone with it.
“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,” he said.
Magistrate Zulu stated that the effect of sections 14 (3), 138 (1) and 138 (4) evidently showed that the law clearly works to protect the female gender from the male one.
He added that it was clear that section 14 (3) imposes criminal liability only on males over the age of 12.
“This meticulously tailors the veil of protection conferred on children under section 138 (1) to fit the girl child and not boys. 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 incapability to commit a crime at 16 years?” Magistrate Zulu wondered.
He stated that the provisions raised a cause for concern on the constitutionality of section 14 (3) and the implication of section 138 (4) of the Penal Code.
But the State argued that the questions raised by Magistrate Zulu should be referred to the High Court for determination because the matter was anchored on the Bill of Rights.