Age of consent: Tomana in climbdown

Mr Tomana

Mr Tomana

Tichaona Zindoga Political Editor
Prosecutor-General Mr Johannes Tomana yesterday made a climbdown on his earlier statements that children under the age of 12 could consent to sex, while marrying was an option for underage girls who were neither going to school, nor work.

The story carried by The Herald and taken from its sister paper, Chronicle torched a massive backlash against the Prosecutor-General, with legal experts and ordinary people questioning the prudence of his remarks.

Mr Tomana said he was “shocked” by the reports and complained that they had the effect of undermining his constitutional office.

Listen to full audio clip of Bulawayo interview here

“When I read the Chronicle I didn’t believe it, but when I read The Herald I was shocked! The Herald is supposed to be the national flagship and carry Government policy in truth. It is supposed to protect Government institutions . . . it is supposed to protect the Prosecutor-General,” said Mr Tomana.

He explained: “The law as it stands, and this is what I explained to her (The Chronicle reporter). If the girl is below the age of 12, whether she agreed, whether she consented or whether you had the so-called affair, which can be established, you will be treated like a rapist. This is the law and I’m supposed to speak about it the way it is in the books and it’s not about what I think.

“Then I said, above the age of 12 to the age of 16, if you knew that they were between the age of 12 and 16 and you slept with them knowing that, the fact that you were going out with her and had a relationship, in the eyes of the law will not matter but not to the extent of the below 12.

“It is only to the extent that morally we say it’s wrong and we have all agreed by law that it is wrong and it should be punished but it is not punished like rape that is why you find that the one who is charged is sentenced to statutory rape and is not sentenced to the rape-years because they are taking into account that this girl was in agreement, this girl was not ravaged; it was consensual. But we are saying it’s wrong to sleep with a girl who is below the age of 16 that is why they are not punished as much as those that sleep with the one who is below the age of 12. That is the law.

“The other part of it is, if you did not know that the girl was below the age of 16 and you reasonably believe that the girl was older and the court can see that she looks old enough and she consented, you will actually be found not guilty and that is the law.

“If I stated the law like that it is the obligation of the paper to communicate it like that because that is what the people must understand. Now, if you choose to tell the people the opposite then that will make the people hate me for not understanding the law and their morals when you are actually factually also wrong. Why would you do that if you are not undermining the institution? Why would you do that when you are not committing a crime? And that’s why the law for criminal defamation is necessary to deal with this type of behaviour,” fumed Mr Tomana.

The Government’s chief legal officer also parried away suggestions that he was protecting perpetrators.

He said he was a father of four girls and would not want to put girls in danger.

He said: “This is my personal view, being a father of four girls I would never want my daughter to end up in a world where she is not respected at all and for that reason I would rather a girl is given an environment that guarantees her that she only sleeps with a man who loves her enough to marry her first. That is my personal opinion and that’s what I think every father and mother would want to see of their daughter and if that’s what we want to invest in I’m the first one to support that because I do have daughters.”

Mr Tomana said there was need to align laws with the new constitution so that courts would apply laws as provided for in the constitution.

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