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The girl child: Premature marriage a cause of concern

In the previous epistle we defined the concept gender and tried to investigate and expose the dark side of gender effects in a society like Zimbabwe, a society deeply rooted in patriarchy. We also realised that the problems affecting the girl child emanate from socialisation and are far from being natural!

This article will discuss some of the corrective measures invoked in an effort to try and address the effects of gender- induced girl child marriages and reference will also be had of comparative analysis with other jurisdictions elsewhere.

What then is the modus Vivendi?  First and foremost members of the community, as i see it, need to be vigilant and report cases of girl child marriages. Remember prior the coming into being of  the Zimbabwean Codification and Reform Act chapter 9:23 (Act 232004)there was a statutory provision that made it an offence to have carnal knowledge of a girl  below 16 years given her mental  immaturity. And the fact that she had given consent was no defence at all then.

Sadly, the current Zimbabwean Codification and Reform Act section 64(2) has made the already bad situation worse by further lowering the girl‘s consenting age to a mere 14 years. That revelation is shocking and not meant for the faint-hearted or those of a nervous disposition lest they collapse!

Admittedly, according to the Zimbabwean Marriage Act (section 22) a person who has attained 16 years can marry but parental consent is a prerequisite. Even then 16 years, as I see it, is too early given that biologically speaking her physical features would still be developing and, besides, it is still a school going age.

As such, one does not need to be a fire-eating or fire-spitting feminist to realise that marrying such a person will be a gross violation of her constitutionally entrenched fundamental right to education. The fact that our family laws allow the Minister discretion to condone the marriage of a girl below 16 years does not help the situation either. (section 22:1 of the Zimbabwean  Marriage Act 5:1 of 1996).

Law makers should therefore elevate the girl’s marriageable age to at least 18 years ,the legal majority age ,and that’s the situation   obtaining in most civilised jurisdictions .Very deterrent  punishments should be imposed on those who violate this law.

The girl‘s consenting age must be in line the constitutionally entrenched marriageable age, that is, eighteen (Section 78 of the Zimbabwean constitution). It is also ironic to realise that married womenbelow the age of 18 cannot exercise their democratic right to cast their votes in elections yet our law of persons provides that when once a person who is below that age gets married she automatically graduates into a major.

That status cannot be revoked even if she gets widowed or divorced. In our country the constitution is the supreme law of the land and, through statutory interpretation, our judiciary should interpret the above section so as to uphold the bill of rights component of the constitution.

Given the limited space and time available, this paper will not venture into the meaning and interpretation of the  wording’—any law that is inconsistent with the constitution will be declared null and void to the extent of those inconsistencies’but underline the words’ to the extent of those inconsistencies’.

As I see it, we need more women in the August House if the gender equation is to be balanced. At the moment we have at most 4 female legislators in Botswana‘s National Assembly. Considering that women do not vote for each other, the quota system net in our law needs to be stretched far and wide to cater for more female legislators in the name of the Affirmative Action. These women will be a check and balance or monitoring mechanism to ensure that the tendency to pass retrogressive legislation recedes into the background and be a thing of the past.

Over and above that, our mindsets, as I see it, need to be changed .Remember the concept  ‘gender ‘ is a social construct and can be deconstructed through education ,both formal and informal. In this age formal education is the chief socialising agent .Informally the elderly at home, who mould or deflower the girl’s virgin mind, must inculcate progressive ideas into the girl’s mind and make her informed about her entitlements.

However, it is quite refreshing to note that Zimbabwe‘s criminal law provides a number of offences and punitive measures regarding those who deliberately infect other people with sexually transmitted diseases, and even HIV (sections 78 – 80 of the Zimbabwean Codification and Reform Act).

This information needs to be disseminated to all and sundry, including both the predator and the prey. It is also heart-warming to note that we have parted ways with the unwritten common law and our criminal law is now written and hence accessible to everyone.

Being forewarned, through this information, is being forearmed in the light of the Latin maxim ”ignoratia juris nomi nem excusat” (ignorance of the law is no defenceexcuse).see section 236(1) (b) of the Zimbabwean Codification and Reform Act.

It is also quite refreshing indeed to note that lawyers, when interpreting pieces of legislation, have to have certain presumptions of statutory interpretation at the forefront of the minds as well. One of them is that the legislature did not intend to go against the constitution. Consequently, they would give an interpretation that harmonises with the spirit and purport of the constitution, though in practice that interpretation might not necessarily have been the one intended by the legislature.

Before concluding this discussion we also need to invoke comparative analysis in order to check how other jurisdictions elsewhere are handling the same problem. For that purpose we are going to explore Botswana law.

Section 14 of the Marriage Act 29:01 of Botswana provides that a person who is below 18 years may not contract a valid marriage. I hope the use of the permissive modal verb ‘may’ is not by design but by accident. What is more, section 147 of this country‘s penal code makes it criminal to have an unlawful sexual encounter with a girl who has not attained 16 years and that crime is called defilement.

The flaw of this provision is that  subsection 5 of the same section provides that it is a valid defence to prove that one is married to the under -aged girl or, alternatively, to prove that one  had reasonable grounds to believe and in fact  genuinely believed that the girl in question had come of age. Here the court would have the unenviable task to investigate and expose the existence or otherwise of both negligence and intension, in which case it would have to invoke both the objective and subjective tests.

Maybe the legislators had in mind a situation where someone instituted such a marriage elsewhere, outside Botswana,  where it is admissible and then eventually came to settle in Botswana.We call this phenomenon ‘a conflict of laws’,(that is, a conflict between the Marriage Act and the penal code).

Mind you, the penal code does not criminalise mere carnal knowledge ,but ‘unlawful carnal knowledge’ and the inclusion of the adjective ‘unlawful’ is not by accident but by design and to produce a desired effect!. (We shall explore this provision next week when we discuss some of the flaws in our penal code when dealing with vulnerable people).

Still on that note, the Botswana customary laws permit a girl who has attained 13 years to marry. At this age she would have attained puberty and, thus, ripe for marriage. This is another example of intra conflict of laws and where customary law clashes with legislation then legislation prevails.


As can be seen, the girl child is in trouble, not only in Zimbabwe and Botswana, but across the globe given that, despite the fact that the concept globalisation is in constant use, there is no universally accepted age at which she can give consent.

In France, for example, the consenting age is 15 while Russia, during the Soviet Union days, considered the attainment of sexual maturity’ and that term is quite promiscuous or relative in nature. Islamic societies lower their consenting age while European nations range from 14 to 16. The United states vary from one state to another. In some states it can be as low as 12 years.

Generally, these differences are influenced by cultural variations in the different locations. On the whole, most societies have fixed the age at 16.And having said that, the world must forge a common age and enforcement of that age must be strictly enforced through international instruments.


What is the position of international law on this issue? The weakness that we have with international law is that it can only be invoked on a state that has ratified any of its Conventions or treaties and non ratification means that that state is not bound to follow that law.

Even if a signatory, the united Nations which has, more often than not  been arm -twisted by America, is only active when American interests are at stake .Furthermore ,member states are not bound to act parrot to the International law but must customise it to suit local political, economic, social, cultural and environmental factors obtaining in that country.

For example, Zimbabwe has ratified the United Nations Convention on the Rights of the Child and the good news is that the Convention defines a child as someone a child who has not attained the age of 18  but its weakness lies on the domestication of the Convention by different countries . Accordingly, the state is at liberty to define majority age according its own domestic legislation.

Suppose according to the domestic law it stood at 14 years? It goes without saying, on that basis, that a country is free to exploit the girl age and the global vision of reducing poverty on the part of women cannot be realisedwill remain a pipedream.


In conclusion, the girl child’s rights, just like those of the Asian tiger, as i see it, are galloping into extinction and must be protected at all costs and our constitution must have express provisions to that effect. In fact the entire legal system (common law, statutes, customary law etc) and, even religion, need a shakeup of earthquake proportions if we are to win the battle against the abuse of the girl child.

As already alluded to, the judiciary, the watchdog for the Bill of rights, must, through statutory interpretation, interpret pieces of legislation and all other sources of law in such a way that they must be intra vires the constitution. Also feminist groups must double their efforts in this fight if it is to be crowned with success. Everyone in the community needs to be educated on the rights of the girl child.  It is never too late to mend. Also it is better late than never.

Kungwengwe-man-ia returns
Charles kungwengwe is a law lecturer at Gaborone University College of law in Botswana and a self styled gender activist.

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Opinions

The Taiwan Question: China ramps up military exercises to rebuff US provocations

18th August 2022

US House Speaker Nancy Pelosis visit to Taiwan has violated the One-China policy, and caused the escalation of tensions across the Taiwan Strait. Experts and political observers across the spectra agree that Pelosis actions and subsequent pronouncements by US President Joe Biden gave impetus to an already simmering tension in the Taiwan Strait, provoking China to strengthen its legitimate hold on the Taiwan Strait waters, which the US and Taiwan deem as international waters.

Pelosis visit to Chinas Taiwan region has been heavily criticised across the globe, with China arguing that this is a serious violation of the one-China principle and the provisions of the three China-US Joint Communiqus. In response to this reckless move which seriously undermined China’s sovereignty, and interfered in China’s internal affairs, the expectation is for China to give a firm response. Pelosi visit violated the commitments made by the U.S. side, and seriously jeopardized peace and stability across the Taiwan Strait.

To give context to Chinas position over Taiwan region, the history behind gives us perspective. It is also important to note that the history between China and Taiwan is well documented and the US has always recognized it.

The Peoples Republic of China recognises Taiwan as its territory. It has always been the case even before the Nationalist Republic of China government fled to the previously Japanese-ruled Island after losing the civil war on the mainland in 1949. According to literature that threat was contained for decades first with a military alliance between the US and the ROC on Taiwan, and after Washington switched diplomatic recognition to the PRC in 1979 by the US One China policy, which acknowledges Beijings position that Taiwan is part of One China. Effectively, Taiwans administration was transferred to the Republic of China from Japan after the Second World War in 1945, along with the split between the Peoples Republic of China (PRC) and the Republic of China (ROC) as a consequence of the Chinese Civil War. Disregarding this history, as the US is attempting to do, will surely initiate some defence reaction on the side of China to affirm its sovereignty.

However, this history was undermined since Taiwan claimed to democratise in the 1990s and China has grown ever more belligerent. Furthermore, it is well documented that the Biden administration, following the Trump presidency, has made subtle changes in the way it deals with Taipei, such as loosening restrictions on US officials meeting Taiwanese officials this should make China uneasy. And while the White House continues to say it does not support Taiwanese independence, Bidens words and actions are parallel to this pledge because he has warned China that the US would intervene militarily if China attacked Taiwan another statement that has provoked China.

Pelosi, in her private space, would know that her actions amount to provocation of China. This act of aggression by the USA seriously undermines the virtues of sovereignty and territorial integrity which has a huge potential to destabilize not only the Taiwan Strait but the whole of the Asia- Pacific region. The Americans know very well that their provocative behavior is deliberately invoking the spirit of separatism masqueraded as Taiwan independence. The US is misled to think that by supporting separatism of Taiwan from China that would give them an edge over China in a geopolitics. This is what one Chinese diplomat said this week: The critical point is if every country put their One-China policy into practice with sincerity, with no compromise, is going to guarantee the peace and stability across the Taiwan Strait. Therefore, it was in the wake of US House speaker Nancy Pelosis visit to Taiwan, that China, in a natural response revealed plans for unprecedented military exercises near the island, prompting fears of a crisis in the Taiwan Strait and the entire Asia-Pacific region. The world community must promote and foster peace, this may be achieved when international laws are respected. It may also happen when nations respect the sovereignty of another. China may be in a better space because it is well capacitated to stake its territorial integrity, what about a small nation, if this happens to it?

As to why military exercises by Beijing; it is an expected response because China was provoked by the actions of Pelosi. To fortify this position, Chinese President, Xi signed a legal basis for Chinas Peoples Liberation Army to safeguard Chinas national sovereignty, security and development interests. The legal basis will also allow military missions around disaster relief, humanitarian aid and peacekeeping. In addition the legal changes would allow troops to prevent spillover effects of regional instabilities from affecting China, secure vital transport routes for strategic materials like oil, or safeguard Chinas overseas investments, projects and personnel. It then follows that President Xis administration cannot afford to look weak under a US provocation. President Xi must protector Chinas sovereignty and territorial integrity, of which Taiwan is a central part. Beijing is very clear on One-China Policy, and expects all world players to recognize and respect it.

The Peoples Liberation Army has made it clear that it has firepower that covers all of Taiwan, and it can strike wherever it wants. This sentiments have been attributed to Zhang Junshe, a researcher at the PLA Navy Research Institute. Zheng further said, We got really close to Taiwan. We encircled Taiwan. And we demonstrated that we can effectively stop intervention by foreign forces. This is a strong reaction from China to warn the US against provocation and violation of the One-China Policy.

Beijings military exercises will certainly shake Taiwans confidence in the sources of its economic and political survival. The potential for an effective blockade threatens the air and shipping routes that support Taiwans central role in global technology supply chains. Should a humanitarian situation arise in Taiwan, the blame would squarely be on the US.

As Chinas military exercises along the Taiwan Strait progress and grow, it remains that the decision by Nancy Pelosi to visit Chinas Taiwan region gravely undermined peace and stability across the Taiwan Strait, and sent a wrong signal to Taiwan independence separatist forces. This then speaks to international conventions, as the UN Secretary-General Antnio Guterres explicitly stressed that the UN remains committed to the UN General Assembly Resolution 2758. The centerpiece is the one-China principle, namely, there is but one China in the world, the government of the Peoples Republic of China is the sole legal government representing the whole of China, and Taiwan is a part of China. It must be noted that the US and the US-led NATO countries have selectively applied international law, this has been going on unabated. There is a plethora of actions that have collapsed several states after they were attacked under the pretext of the so-called possession of weapons of mass destruction illuminating them as threats – and sometimes even without any valid reason. to blatantly launch military strikes and even unleash wars on sovereign countrie

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Opinions

Internal party-democracy under pressure

21st June 2022

British novelist, W. Somerset Maugham once opined: If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.

The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties ruling and opposition.

As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.

We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.

Former President, Festus Mogae once stated that Botswanas democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.

Although many may not publicly care to admit, Mogaes assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values.This has been happening over the years now, and the situation is getting worse by the day.

Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in theBulela Ditswedispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.

Bulela Ditswewas an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.

Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.

We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties ruling and opposition have embraced this position and believe democracy is the hindrance to their political ambitions.

These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.

Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.

The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.

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Opinions

The Big Deal About Piracy

21st June 2022

Piracy of all kinds continues to have a massive impact on the global creative industry and the economies of the countries where it thrives.

One of the biggest misconceptions around piracy is that an individual consumers piracy activities, especially in a market the size of Botswanas, is only a drop in the pool of potential losses to the different sectors of the economy piracy affects.

When someone sitting in Gaborone, Botswana logs onto an illegal site to download King Richard online, they dont imagine that their one download will do anything to the production houses pocket or make a dent in the actors net worth. At best, the sensitivity towards this illegal pirating activity likely only exists when contemplating going about pirating a local musicians music or a short film produced locally.

The ripple effects of piracy at whatever scale reach far beyond what the average consumer could ever imagine. Figures released by software security and media technology company, Irdeto, show that users in five major African territories made approximately 17,4 million total visits to the top 10 identified piracy sites on the internet.

The economic impact of this on the creative industry alone soars to between 40 and 97.1 billion dollars, according a 2022 Dataprot study. In addition, they estimate that illegally streamed copyrighted content consumes 24% of global bandwidth.

As Botswanas creative industry remains relatively slight on the scale of comparison to industries such as Nollywood and Nilewood where the creative industry contributes a huge proportion to West and East Africas respective GDPs, that does not imply that piracy activities in Botswana do not have a similar impact on our economy and the ability of our creative industry to grow.

When individuals make decisions to illegally consume content via internet streaming sites they believe they are saving money for themselves in the name of enjoying content they desire to consume. Although this is a personal choice that remains the prerogative of the consumer, looking beyond the fact that streaming on illegal content sites is piracy, the ripple effect of this decision also has an endless trail of impact where funds which could be used to grow the local creative industry through increased consumption, and revenue which would otherwise be fed back into Botswanas economy are being diverted.

Why cant our local creative industry grow? Why dont we see more home-grown films and shows in Botswana? are questions constantly posed by those who consume television content in Botswana. The answer to this lies largely in the fact that Botswanas local content needs an audience in order for it to grow. It needs support from government and entities which are in a position to fund and help the industry scale greater heights.

Any organisational body willing to support and grow the local creative industry needs to exist and operate in an economy which can support its mandates. Content piracy is a cycle that can only be alleviated when consumers make wiser decisions around what they consume and how.

This goes beyond eradicating piracy activities in so far as television content is concerned. This extends to the importation and trade in counterfeit goods, resale of goods and services not intended for resale across the border, outside its jurisdiction, and more. All of these activities stunt the growth of an economy and make it nearly impossible for industries and sectors to propel themselves to places where they can positively impact society and reinvest into the countrys economy.

So what can be done to turn the tide here in Botswana in order to see our local production houses gain the momentum required to produce more, license more and expand their horizons? While those who enforce the law continue to work towards minimizing piracy activities, its imperative that as consumers we work to make their efforts easier by being mindful of how our individual actions play a role in preventing the success of our local creative networks and our economys growth.

Whether you are pirating a Hollywood Blockbuster, illegally streaming a popular Motswana artists music, or smuggling in an illegal decoder to view content restricted to South Africa only, your actions have an impact on how we as a nation will make our mark on the global landscape with local creative productions. Thembi Legwaila is Corporate Affairs Manager, MultiChoice Botswana

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