The Minister of Justice, Defense and Security Shaw Kgathi’s recent announcement that Government will soon increase the age of sexual consent from 16 to 18 though hailed and welcomed by many has attracted mixed reaction from some members of the public. While some argue that the law is long overdue and will come a long way in protecting mostly the girl child – who are often lured into having sexual relations with men old enough to be their fathers and in most times leading to teenage pregnancies and school dropouts – others argue that 16 year-olds are old enough; that girls that age are often sexually mature and often in need of amenities like family planning advice and methods and the anticipated law they argue may hinder access to all this. Kgathi is expected to table the amendment in the coming November session of Parliament. It is against the law in Botswana for adults (male or female) to engage in sexual activity with a young person (boy or girl) under the age of consent. The offence is called ‘defilement.’ The difference between rape and defilement is even if a child under the age of defilement gives their consent, it is still considered illegal because the child is not able to make such decision. Originally, the age for defilement in Botswana has been 16.
Any person found guilty of this offence shall be sentenced to a term of imprisonment not exceeding 14 years with or without corporal punishment. If the anticipated law gets the light of the day, the age of sexual consent will be increased from 16 to 18. This will also be in line with provisions of the Children’s Act. Botswana has adopted the “Children’s Act” which states the age of defilement to be 18 years of age. Section 25 (2) of the Children’s Act states that, “Any parent, guardian, teacher or other person who, without reasonable excuse fails to report a case of child abuse or exploitation of which he or she is aware shall be guilty of an offence and liable to a fine of not less than P10 000 but not more than P30 000 or to imprisonment for a term of not less than two years but not more than three or both.” And as it is, failure by Botswana to domesticate the act fully created ambiguity and confusion as it made it seem that both ages could be argued in a court of law. Any person found guilty of this offence shall be sentenced to a term of imprisonment not exceeding 14 years with or without corporal punishment.
Peggie Ramaphane- Director Women against Rape
According to Ramaphane, WAR is fully behind the proposed amendment, and had in fact been asking Government to align the Penal Code with the Children’s Act which is guided by the UN charter on the rights of the child. “WAR has been rooting for this,” Ramaphane said. She dismissed assertions that children, especially the girl child would be negatively affected by this development with regard to easy access to health services as they are likely to be discriminated against for being sexually active. This, Ramaphane said, is a non-issue and parents should instead take this as an opportunity to urge their children not to engage in sexual activities before time. “Parents, the community, NGOs and other stakeholders should not shift their responsibilities. Children should be guided and taught and made to see that there is nothing wrong in waiting and delaying in engaging in sexual activities,” she said. She said no child, even those below 18 will be denied access as it goes against the country’s Constitution, which states that no person will be discriminated against because of their age. She also pointed out that government has created youth friendly facilities nationwide to ensure that young people receive efficient service.
Uyapo Ndadi – Human Rights Lawyer
As per his Facebook post, “Several people have solicited my views on the "planned" increase in the sexual age of consent from 16 to 18 years. Well, I have looked for the Bill amending the law but I could not find it. If indeed it is true, we need to ask ourselves what we are seeking to achieve with the proposed law and the consequences of it. The main concern is in my view sugar daddies and mommies using children and not children having sex among themselves. (And yes, they do) Otherwise our prisons may have 17 years old couples detained for defilement as consent is not considered in defilement cases. If I had the powers to make laws, I would leave the age of consent at 16 and have another clause stating that provided the intercourse is not with a person five (5) years older. Then once a person has reached the age of 18, the age difference would not apply. The Public Health Act allows children, 16 years and over, to test for HIV and access health services on their own, raising the age to 18 years may have the effect of changing this achievement and children with raging hormones (and they grow fast children of today) may shy away from accessing services and the health care practitioners may ask them questions like why are you having unlawful sex, and thus turn them away. Eventually, this move may be a public health nightmare.
Thatayaone Gabositwe – Southern African AIDS Trust, Country Director – Botswana
Although he points out that until the actual proposed amendments actually get published in the Government gazette one can only assume, Gabositwe said based on principles of this kind of law in his opinion the proposed law, while it has noble intentions is also counterproductive, and will have adverse consequences on sexual reproductive health of adolescents and young people. This would be regrettable in a country with one the highest HIV/AIDS in the world. “We are in a region (sub-Saharan Africa) where HIV is the leading killer of adolescents. A region where 8600 new infections are recorded among 15-24 years girls per week. By increasing the age of consent to sex, we are making sexual activity illegal under an age where most adolescents are already in practice sexually active. The risk of this is to prevent them from accessing critical sexual and reproductive healthcare and information,” he said. “A little research would have shown that despite progressive policy environment in Botswana that allows unrestricted access to services for sexually active adolescent, the reality, is that access is limited and sometimes denied on the basis of “perceived” unlawful youth sex. “You are too young to have sex, so we cannot give you contraceptives”, is the attitude. This is the problem with this law. Rather than protect young people, it runs the danger of predisposing them to HIV and other undesirable health outcomes.” He further stated that any law on age of sexual consent should make the following considerations to avoid being too high or too low: the age should avoid the over-criminalisation of adolescents’ behaviours and prevent access to services, accordingly, it should respect the evolving capacities of the child and not be set too high and that it should also consider as a criterion the age difference between the partners involved as one indication of the balance of power between them and address cases in which two underage adolescents are involved. “My opinion is that if we test the new proposal against these, it will fail. I think the new law deals with young people having sex rather than “how, and who they are having sex with”, which should be the focus of the law,” he said.