The Penal Code (Amendment) Act, 2005, Does the intention of Parliament Harmonize with the practice of Courts?

Abstract

An increase in reports of child defilement has been described as unprecedented in the history of Zambia. It is an out break to the extent that Civil Society has been advocating for mandatory death penalty for the offenders while courts have resorted to imposing long jail sentences on the convicts. Interestingly, the Supreme Court, in a long time, has upheld a life sentence imposed on a twenty four year old defiler of Mazabuka district, by the Livingstone High Court in Southern Province. Generally speaking, child defilement is recognised only when the child is taken away from the parents or guardians by the accused for the purpose of having canal knowledge with the victim. However, it is common knowledge that many young girls have been defiled in rural areas by way of early marriages. While in the former only one person is directly involved, the later scenario has several parties, each one contributing in one way or another, with the full knowledge that the wife to be is below the legal age for marriage. One wonders whether moral principles bordering on sexual intercourse with the child differ from tribe to tribe or religion to religion because morality is capable of affecting society injuriously and this is what gives the law locus stand in the matter. Therefore, the paper has presented answers to questions such as; what was the major impediment in Judges' not imposing mandatory life sentences^ on the convicts as provided for in the Principle Act before amendment? Why has the Penal Code (Amendment) Act 2005, settled for a specific term of years sentence^ and only makes life imprisonment optional? Has Parliament been clear enough on the need to expressly declare child defilement cases as those of strict liability so that there is no need to establish culpability? Is liability strict to relieve the prosecution of the necessity to prove mens rea in relation to one or more of the elements of the actus reas? Has the Penal Code Amendment Act 2005 lived to its expectations of reducing and eventually eradicating child defilement cases?