26 Oct 2023

 Ntlo Ya Dikgosi has rejected a motion requesting government to consider amending Section 147 of the Penal Code by deleting subsection 5.

The said section states; defilement of person under 16 years (1) Any person who unlawfully and carnally knows any person under the age of 16 years is guilty of an offence and on conviction shall be sentenced to a minimum term of 10 years, imprisonment or to a maximum term of life imprisonment.

While subsection 5 states; it shall be a sufficient defence to any charge under section if it appears to the court before whom the charge is brought that the person so charged is less than two years older than the person so defiled, not in a position of trust or authority towards the person so defiled, not a person with whom the person so defiled is in a relationship or dependency, and not in a relationship with the person so defiled that is exploitative of the person so defiled.

The motion presentedby Kgosi Rebecca Banika of Chobe, the motion was rejected by 15 members of Ntlo Ya Dikgosi, with eight in agreement, while four abstained from voting and four absent.

 In her submissions, Kgosi Banika said subsection 5 watered down defilement and therefore should be removed.

She said perpetrators tend to use subsection 5 as defence and often get away with crime. “Some perpetrators have stated to courts that the victims looked older and some have submitted cultural elements identifying the victims as their wives,” Kgosi Banika said.

She said defilement caused psychological damage to the victim, which remained as trauma even in their adult life. 

She said victims often experience social stigma both at school and during their adult life. She said defilement had proved to cause physical injuries especially when it happens to infants.

Commentin on the motion, Kgosi Mbao Kahiko of Charleshill said he did not support the motion saying subsection 5 was a guide within Section 147, and therefore said removing it would not help the case of defilement. Kgosi Disho Ndhowe of Okavango also denied the motion saying subsection 5 was meant to assist prosecutors. 

He said if it was not important, it would have been removed when the Act was amended to increase age of defilement from 16 to 18.

In his response, Assistant Minister of Local Government  and rural Development, Mr Mabuse Pule on behalf of Minister of Justice, Mr Machana Shamukuni, he said subsection 5 was meant to be a mitigation, however, government recognised challenges coming with the subsection in respect  of defences which sometime result in acquittals.

He said Directorate of Public Prosecution (DPP) was currently collecting data on how the above provisions have been determined by the courts so as to determine the in-depth in prosecuting the offence of defilement. 

Mr Pule said there might be a need to reflect further on whether the special defences take away from the offence of defilement which was meant to protect young persons age under 18 years from predatory sexual offences.

Furthermore, Mr Pule said government was looking at the prominence of acquittals as a result of subsection 5 with a review to removing some elements. He said this calls for a Defilement Pitso for Batswana air their views regarding removing subsection 5 from Section 147 of the Penal Code. ENDS