Thursday, October 28, 2021

MP wants age of consent increased to 18 years

In the first motion to parliament, the new Specially-elected MP, Bogolo Kenewendo, will ask the government “to amend the age of consent from 16 to 18 in line with the definition of a child as stated in the Children’s Act.”

Botswana laws are a mass of confusion on what a child is. The Children’s Act defines child as any person who is below the age of 18 years and in that regard, a man who has sexual relations with a 17-year old girl would have violated a child. However, that is not the case because if such case were to come before a magistrate court as a criminal offence, the charge would be drawn from the Penal Code. Section 147 of the latter says that “any person who unlawfully and carnally knows any girl under the age of 16 years is guilty of an offence and is liable to imprisonment for life, with or without corporal punishment.” This means that the Penal Code essentially establishes 16 years as the age of consent while the Children’s Act considers a 16-year girl to be a child with whom men cannot have sexual relations with.

The Marriage Act complicates the situation further. While Section 14 of the Act says that no person below the 18 years may marry, Section 15 negates the latter by stating that “No minor or person below the age of 21 years not being a widower or widow may marry without the consent in writing of his or her parents or guardians.” This is where the difficulty arises: parents may give consent for a 16-year old girl to marry while the Children’s Act considers someone that young to still be a child. It is unlikely men who marry underage children wait until they reach the age of majority to consummate the marriage. Within the context of the Children’s Act, minors can’t be sexually abused by their husbands but to all intents and purposes, such abuse is sanctioned by the Marriage Act.

Outside of rationalising and standardising laws, there is the more difficult task of policing paedophiles. Years ago, a community junior secondary school in Shoshong fired a male teacher for sexually abusing under-age girls. A few years later, he fetched up at a Gaborone West supermarket as a shelf-packer, his appetites unaltered. This means that from having access to only a few hundred underage girls at the school, this man now had access to thousands of them on a daily basis.

While traditionally a dirty little secret that society did precious little about, child sexual abuse is now getting the rhetorical and legislative attention it deserves. However, the latest round of public discussion on this matter is misguided in one respect. The most recent lexical import from South Africa is a pair of words (“blesser-blessee”) which refers to sugar daddies and the beneficiaries of their strings-attached largesse. This is the context in which these words are used in South Africa but in Botswana they are often used to refer to paedophiles and their victims. The lumping together of sugar daddies with paedophiles under one label is unhelpful because it allows the latter (who sexually abuse children) to hide behind the former who only engage in consensual inter-generational sex. This is the broader context in which the Leader of the Opposition, Duma Boko, explained this issue when the Gaborone North MP, Haskins Nkaigwa, proposed to parliament that blessers should be castrated. Boko rightly pointed out that legally there is nothing wrong with a 60-year old man (a blesser) having sexual relations with a 20-year old girl (blessee). 

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