Namibia -- Age of Sexual Consent
Includes info on Zimbabwe also
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LAWS: 1. Male homosexuality is illegal.
2. Namibia's Labour Code (Clause 107) explicitly prohibits discrimination based on sexual
orientation in the workplace.
NOTE: 1. President Sam Nujoma says homosexuals must be condemned and rejected in our
2. Finance Minister, Helmut Angula, is very anti-gay.
3. Home Affairs Minister, Jerry Ekandjo, is extremely anti-gay.
4. Jeremiah Nambinga, Deputy Home Affairs Minister, is extremely anti-gay.
COURT:1. The High Court in Windhoek on June 24 reaffirmed a German lesbian's right to
permanent residence status based on her relationship with her Namibian partner. Judge
Harold Levy found that since heterosexual couples are recognized for common-law
relationships -- "universal partnerships" -- then, given the
"equality provision in the Constitution and the provision against discrimination on
the grounds of sex, I have no hesitation in saying that the long-term relationship between
the applicants in so far as it is a universal partnership, is recognized by law."
ZIMBABWE LAWS: 1. Homosexual activity is illegal, punishable by up to 10 years in
NOTE: 1. On August 1, 1995, president Robert Mugabe called homosexuality an
abhorrent offense against nature. He is extremely anti-gay.
2. Norbert Makoni, a member of Parliament, advocates the whipping of
homosexuals. He is very anti-gay.
3. Patrick Chinamasa, Attorney General, is very anti-gay.
Namibia - Namibie - Namibia
I. Ages for legal purposes
Age of simple majority The legal age of majority is twenty-one (21)
years (Age of Majority Act 57/1972).
Age of consent for sexual activity
A girl under the age of twelve (12) years can not legally consent to sexual intercourse.
legal age of consent for a boy is seven (7) and older, even if the girl has in fact given
sexual intercourse, the act is considered rape.
If a girl aged between twelve (12) and sixteen (16) consents to sexual
intercourse, the accused is not
guilty of rape, but guilty of an offence described in Section 14.
Age of consent for marriage
Under normal circumstances, a person under the age of twenty-one (21) years can consent to
marriage. But over eighteen (18) years of age in the case of a boy, and over fifteen (15)
years of age
in the case of a girl, they can enter into matrimony provided that both parents are
" Rape consists in a male having unlawful and intentional sexual intercourse with a
female without her consent. "
According to the English Law, the emphasis has been placed on the absence of valid
consent to intercourse on the part of the female. The act consists in the penetration
of the females sexual organ by that of the male. The slightest penetration is
sufficient and it is immaterial whether semen is emitted or whether the female
Rape can be committed only by a male against a female. Rape can be committed only
if the intercourse takes place without the womans consent. There is an arbitrary
age limit below which a girl is irrefutably presumed to be incapable of consenting
to sexual intercourse. This limit is the completion of the girls twelfth (12) year.
Intercourse with a girl under the age of twelve (12) is therefore rape, even if she
has consented. And it can only be committed intentionally.
III. Other forms of child sex abuse
Sexual offences with girls under sixteen (16) years, Section 14 of the "
Combating of Immoral Practices Act
" (1) Any male who-
a) has or attempts to have unlawful carnal intercourse with a girl under the age of
sixteen (16) years ; or
b) commits or attempts to commit with such a girl an immoral or indecent act ;
c) solicits or enticessuch a girl to the commission of an immoral or indecent act,
-shall be guilty of an offence and liable on conviction to imprisonment
for a period not exceeding
six years with or without a fine not exceeding three thousand rand in addition to such
(2) It shall be a sufficient defence to any charge in terms of this section if it appears
to the court -
a) that the girl at the time of the commission of the offence was a prostitute, that the
person so charged was at the said time under the age of twenty-one (21) years and
that it is the first occasion on which he is so charged ; or
b) that the person who charged was at the said time under the age of sixteen (16)
years ; and
c) that the girl or person in whose charge she was, deceived the person so charged
into believing that she was over the age of sixteen (16) years at the said time. "
The Sexual Offences Act 23 of 1957 creates a number of offences relating to sexual
sexually indecent acts, as well as related conduct, such as keeping a brothel, procuring
the purposes of intercourse (procuration) and prostitution. Before 1988, the Act was known
Immorality Act, renamed the " Sexual Offences Act " in 1988. Some forms of
conduct prohibited by
the Act were also prohibited under the common law as particular ways of committing the
known as " stuprum ". It should be borne in mind that the expression "
intercourse ", as employed in the Act means " carnal intercourse otherwise than
and wife ".
Indecent assault consists in unlawfully and intentionally assaulting another with
the object of committing an
The crime can be committed by either a male or a female, and the same applies to the
whom the crime is committed. Just as in rape, a girl below the age of twelve (12) years is
irrefutably presumed to be incapable of consenting to an indecent assault. X must have the
intention not only to assault Y but also to assault her indecently. Attempted assault is
IV. Child prostitution
Generally speaking, " procuration " is any act by which a woman (usually a young
woman or girl),
is procured to become a prostitute. The procurer is usually somebody who, in a variety of
ways, such as persuasion, cunning, fraud, or even coercion, induces a girl to place her
body at the
disposal of men (other than the procurer). The underlying reason for the prohibition of
is to protect women and particularly girls (often poor and desperate to earn money),
unscrupulous exploiters of their bodies.
Any person who " keeps " a brothel is guilty of an offence. According to the
definition in the act,
" brothel " includes any house or place kept or used for purposes of
prostitution or for persons to
visit for the purpose of having unlawful carnal intercourse or for any other lewd and
GENDER AND THE LAW: THE AGE OF CONSENT (part 2)
UNDER existing law, girls under the age of twelve and boys under the
age of seven are considered to be too young to give meaningful consent to sexual
intercourse. A draft rape statute proposed by the government would make the age of
consent 12 for both boys and girls, provided that the perpetrator is at least three
years older. This provision would be supplemented by the lesser offence of
"statutory rape", which makes it illegal for males to engage in sexual activity
with girls under the age of 16, regardless of consent. The previous column discussed
data on when boys and girls in Namibia actually begin sexual activity and pointed to the
alarmingly high incidence of forced sex among boys and girls. This column looks at other
aspects of the issue.
Date: Fri, 2 Jun 2000 13:58:29 +0200
June 2, 2000 | The government of Zimbabwe reiterated its stance that
homosexuality is illegal this week when it sentenced the country's
former president to prison on charges of sodomy and sexual assault.
The 64-year-old disgraced politician -- with the unfortunate name of
Canaan Banana -- was convicted in 1999 on 11 counts, which included
the carrying out of "unnatural acts" with male members of his
presidential staff. Banana appealed the convictions, asserting they
violated privacy rights granted by Zimbabwe's constitution, but to
no avail. He is due to turn himself in to authorities for a yearlong
Banana became prominent in Zimbabwean politics after the country's
independence in 1980, and served as ceremonial president from that
time until 1987, alongside then Prime Minister Robert Mugabe, now
the executive president.
During that time, according to court records, Banana abused his
power to force himself sexually on male staff members. Chief
Justice Anthony Gubbay said that Banana used "his immense superiority
of status to beat down the resistance of a young and inexperienced"
police bodyguard, whose description of Banana's sexual assaults
Gubbay termed "a horrifying tale."
The judge added that the cook and gardener at Banana's official
residence were afraid that if they rebuffed his advances, they would
be arrested and killed.
According to the Associated Press, authorities arrested Banana after
a deadly shooting involving one of his conquests. A police bodyguard
snapped under the pressure of Banana's repeated sexual advances, and
shot and killed a fellow policeman who had called him "Banana's wife."
The bodyguard was sent to prison, and Banana ended up in court in
a scandalous 1998 trial that rocked the country.
Zimbabwe's government maintains a harsh view of homosexuals. Mugabe
has called them "lower than pigs and dogs." During Banana's trial,
the country's five Supreme Court judges split their opinions on the
matter. Should consensual sodomy by homosexuals continue to remain
illegal? According to Gubbay, a majority of the judges accepted Africa's
conservative attitudes toward homosexuality, and the court ruled that
the law should stand.
After a two-year trial and his sentencing, Banana still insists the
case against him was fueled by his political opponents. A Methodist
minister and former diplomat, Banana mediated in factional fighting
in the 1980s and in the Liberian civil war.
He has no plans to change his name at present.
|Ten-Year Jail Term for Child Rapist
August 12, 2002
A 23-year-old Windhoek resident, Nelson Naftali Hailaula, was
sentenced to 10 years' imprisonment last week after he was found guilty of raping a
10-year-old girl in the capital. Magistrate Dinnah Usiku sentenced Hailaula in the
Windhoek Regional Court last Tuesday, at the end of a trial in which she heard testimony
that Hailaula had offered small amounts of money to the girl to persuade her to have sex
with him. He was charged with three counts of rape, which were allegedly committed
at the Katutura Single Quarters on April 14, 15 and 16 last year. Hailaula was
convicted on only one charge of rape, though, since there was no clear evidence to show
exactly when the alleged offences were committed, the Magistrate indicated in her
Magistrate Usiku further noted that it appeared from the evidence
that the girl agreed to have sexual intercourse with him after he paid her small amounts
of money. The girl mentioned amounts of N$10 and N$5. But this apparent consent
could not be used as a defence, the Magistrate stated, because a girl as young as the
complainant in this case was, in terms of Namibian law, held to be incapable of consenting
to sexual intercourse.
OTHER AGE MILESTONES
In general, our laws recognise the onset of different stages of
maturity for the purpose of different kinds of decision-making. The legal age of consent
for sexual activity should fit logically into this spectrum.
Boys and girls legally become adults at age 21. This is the age of
majority for the purpose of legal acts such as signing contracts and bringing court cases
independently. It is also the age at which parental authority over a child legally comes
to an end. Persons must be 21 in order to be elected to public office.
The UN Convention on the Rights of the Child defines a
"child" as a person under the age of 18. In terms of the Namibian Constitution,
boys and girls acquire the right to vote at age 18. They are treated as juvenile offenders
under the criminal law if they are under age 18. A person must be at least 18 years old to
purchase alcohol legally. Boys and girls under the age of 21 need the consent of their
parents in order to marry, and boys and girls under the age of 18 need the consent of the
state as well.
Boys and girls are considered competent to make wills and to apply for
licences for firearms at age 16. Children under the age of 16 enjoy Constitutional
protection against economic exploitation and hazardous employment
The law makes an assumption that children under the age of 14 are
incapable of wrongdoing. This means that a child under the age of 14 can be convicted of a
crime only if the state can prove that the child knowingly intended to do wrong and
understood the consequences of his or her actions. The Labour Act makes it illegal to
employ a child under the age of 14 for any purpose.
No child under the age of seven can be convicted of a crime under any
AGE OF CONSENT IN OTHER COUNTRIES
There are a number of countries with situations similar to the existing
position in Namibia - a common-law age of consent for rape, supplemented by an offence of
"statutory rape" with a higher age of consent.
For example, in South Africa, the age of consent in respect of the
common-law crime of rape is the same as in Namibia at present - 12 for girls and seven for
boys - although reform is expected in future. This position is supplemented by a Sexual
Offences Act which makes it an offence for men or women to have sexual intercourse with
persons of the opposite sex who are under the age of 16 years, regardless of consent. The
relevant age in respect of homosexual contact between two males or two females is 19. No
age gap is specified for either offence.
Similarly, in Zimbabwe, the common-law age of consent for rape is 12,
but is supplemented by "statutory rape" which covers persons under the age of
A different approach has been taken in Canada, which has been a world
leader in rape law reform. There, the general age of consent is set at 14 for both boys
and girls. However if the victim is between the ages of 12 and 14, consent can be a
defence to a charge of simple sexual assault if the perpetrator is between the ages of 12
and 16, is less than two years older than the victim, and is not in a position of trust or
authority towards the victim.
This narrowly-circumscribed possibility of consent as a defence does
not extend to the more serious offences of sexual assault with a weapon and aggravated
sexual assault. It is no defence to any of these charges that the accused believed that
the other party was over the age of 14 at the time, unless the accused took all reasonable
steps to discover the actual age of the complainant. There has been some recent protest
about the existing legal position in Canada, and a petition arguing that the age of
consent should be raised from 14 to 16 is currently being circulated.
The age of consent is 16 in most states in the United States, although
this has been modified in many states by the introduction of rules about age gaps between
the two parties. In many cases, the age gap between the complainant and the perpetrator
determine not only whether a crime has been committed, but also the seriousness of the
offence. Where there are such age gaps, they are typically 3-4 years.
For example, in New York it is an offence of first degree rape for a
person of any age to have sexual intercourse with a child under the age of 11. An offence
of second-degree rape is committed if the victim is under the age of 14 and the
perpetrator is 18 or older, and an offence of third-degree rape is committed if the victim
is under the age of 17 and the perpetrator is 21 or older.
In other states the age rules are simpler. For example, in Montana,
sexual assault is committed if the victim is under 16 and the perpetrator is three or more
In Australia, there are different laws on sexual offences in the
different provinces but the age of consent for heterosexual intercourse is 16-17 years in
most parts of the country.
POLICY ISSUES TO CONSIDER
Historically, laws on sexual offences in many countries have given
greater protection to young girls than to young boys. One difficulty with attempting to
extend equal protection to boys and girls is determining who is exploiting whom when there
is no evidence of force or threats. For example, suppose that a law makes it illegal for
any person to engage in sexual intercourse with any other person under the age of 16. In
such a case, two 15-year-olds who have consensual sexual intercourse would both be guilty
of a crime.
This is one reason why age gaps have been introduced. Where youth is
the only factor pointing to sexual exploitation, the law assumes that the older and more
mature person is taking advantage of the youth and immaturity of the other party. It would
not seem to serve any useful social purpose to criminalise innocent sexual experimentation
between persons who are roughly equal in age and experience. Age may not be a very precise
measure of experience, but laws do use age as the basis for rules for all sorts of rights,
privileges and protections -- for lack of any better options.
Another policy issue to consider is whether the law should create
overlapping crimes with different degrees of seriousness. For example, consider two cases
involving 13-year-old girls: one where the perpetrator is a 30-year-old man and one where
he is a 15-year-old boy. Should there be different crimes to cover these two situations,
or should the differences in maturity be taken into account only in respect of the
sentences which are imposed?
It must be remembered that age will be irrelevant whenever force or
threats are present. For example, suppose the age of consent for the crime of rape is 12
as proposed. A schoolteacher who threatens to fail a 13-year-old girl unless she sleeps
with him could still be found guilty of rape. The function of the age of consent is to
make it illegal to engage in sexual intercourse with a person below that age even if there
are no threats and no use of force. The idea is that it is simply not possible for a child
below a certain age to understand the implications of sexual intercourse, or to understand
how to deal with a "request" for sexual relations.
A PROPOSAL FOR NAMIBIA
I would propose that sexual intercourse with a child under the age of
14 by a person who is at least two years older be treated as rape. This seems more
consistent with the other age milestones than the proposed age of 12. For example, if the
law assumes that a person below the age of 14 does not know the difference between right
and wrong and is not old enough to work, surely that same child is not old enough to give
meaningful consent to sexual intercourse. This also seems more consistent with the data
discussed in the previous column on the ages at which girls and boys begin to engage in
sexual intercourse, by taking setting the age of consent at an age slightly below the most
common age for the beginning of sexual activity.
I would also propose that the crime of rape be supplemented by the
lesser crime of "sexual exploitation of a minor" which would protect all boys
and girls under the age of 16 from being taken advantage of by any person who is at least
three years older. Such a crime should replace the existing crime of "statutory
rape" in the Combating of Immoral Practices Act. It would differ from the existing
provision on "statutory rape" by extending protection to young boys, and by
introducing an age gap to ensure that only the behaviour of the more mature party was
Why have two different crimes? Firstly, the new law on rape proposes
stiff minimum sentences which will ensure that rape is treated with the seriousness it
deserves. This makes it especially important to ensure that only situations which warrant
treatment as rape are included in the definition of the crime. Secondly, the overlap
between the two offences would give prosecutors and courts discretion to turn to the
lesser offence in cases where this is warranted by the circumstances - such as cases where
the parties fell within the required age groups but were not so actually far apart in
maturity. Thirdly, the two-tier approach would reflect the fact that children between the
ages of 14 and 16 are still vulnerable to exploitation, but perhaps not so easily taken
advantage of as children under 14.
This proposal put forward here is similar in principle to the
government's proposal. However, it suggests raising the age of consent for rape proposed
by the government and narrowing the requisite age gap, in an effort to give children a
greater degree of protection.
It is very difficult to decide upon appropriate ages for laws on sexual
activity. Individual children reach physical and mental maturity at different ages.
Different families and communities also have differing ideas about when children are old
enough to make their own decisions about sex. This is why wide public debate on the
question will be helpful. The proposed law on rape should be coming before Parliament this
session. Consider the issue and make your own input.
August 29, 1997