DISSERTATION - Michelle Mumba - LLB-2022

SCHOOL OF LAW
THE EFFICACY OF THE LAW ON INCEST IN ZAMBIA: A COMPARATIVE STUDY

WITH SOUTH AFRICA
By
MICHELLE MUMBA
LLB1712556
An obligatory essay submitted to the University of Lusaka in partial fulfillment of the

requirement for the award of the Bachelor of Laws [LLB] Degree
2022
i
ii
DECLARATION
I, MICHELLE MUMBA, do declare that this dissertation titled “THE EFFICACY OF THE
LAW ON INCEST IN ZAMBIA: A COMPARATIVE STUDY WITH SOUTH AFRICA”
which is hereby submitted to the School of Law at the University of Lusaka as part of the
requirements for the award of the Bachelor of Laws (LLB) degree, is my original work and has
not previously been submitted for the award of a degree at this or any other tertiary institution.
The sources that have been used or quoted have been indicated and duly acknowledged as
complete reference.
Signature .............................................
Date ....................................................
iii
SUPERVISOR’S RECOMMENDATION
I, KAWAMA MWAMFULI, do recommend that this dissertation titled “THE EFFICACY OF

THE LAW ON INCEST IN ZAMBIA: A COMPARATIVE STUDY WITH SOUTH
AFRICA” authored by MICHELLE MUMBA, done under my supervision, be admitted by the
university. I have checked it carefully and I am satisfied that it meets necessary requirements
pertaining to the format laid down by the university regulations.
.........................................................
MS KAWAMA MWAMFULI
(Supervisor)
......................................................
(Date)
iv
DEDICATION
This research is dedicated to my dear parents, Nelson Mumba and Juliet C. Mumba, for always
believing in me. Thank you for your unconditional love, support and encouragement. Making it
this far would not have been possible without you. I will forever cherish you.
v
ACKNOWLEDGEMENTS
This paper would not have been possible had it not been for the people listed below that rendered
me their assistance at my greatest point of need. In no particular order;
To my undergraduate research supervisor, Ms Kawama Mwamfuli, who made herself available

to supervise my work and was always quick to respond and give feedback, I am grateful for your
guidance, patience and commitment throughout my pursuit to complete this study.
To my sisters, Metrinah Mumba and Amanda Chikabala, and to my dearest friend, Mpesa
Chisulo, I express my sincere thanks for taking the time and making the effort to review my
work and give constructive criticism, you have been of great help and support.
To my friends, Kapakala Changwe and Nkandu Mwanza, I acknowledge my indebtedness and

gratitude for stimulating suggestions, proofreading my work, correcting my mistakes and for
always making themselves available to help throughout this study, you have been reliable and
supportive.
To my aunt, Hope Kabaso, my sisters Mandy Mumba and Mya Mumba, and my brother,
Loveday Nelson Mumba, thank you for your spiritual and emotional support, you have been
uplifting, I am beyond grateful.
To my best friend, my husband Dhruv Darji, who has been there for me from the start, equally
believed in me, prayed with me, strengthened me, and encouraged me when I was at my lowest, I
appreciate you.
To all my other friends, fellow classmates and family who pushed me, encouraged me and
supported me all the way, I am beyond grateful.
All and above, I give all glory and honor to the Lord Almighty through whom all things have
been made possible.
vi
LIST OF ACRONYMS
YWCA – Young Women Christian Association

WLSA – Women in Law in South Africa
AD – Anno Domino (In the year of the Lord)
BC – Before Christ
SA – South Africa
GBV – Gender Based Violence
vii
ABSTRACT
This research will be discussing the law on incest in Zambia and comparing it to the law
on incest in South Africa.
In Zambia, incest is prohibited under Chapter 87 of the Laws of Zambia commonly

known as the Penal Code. The penal code does not explicitly define the word “incest,”
however, it has classified incest to be in two forms, namely “incest by males” under
section 159 of the penal code and “incest by females” under section 161 of the penal
code.
The above provisions are not clear as to whether the relationship between two people
should be by way of consanguinity or by way of affinity or to both, or if this prohibition
also extends to adoptive children or relations between cousins. Further, it does not
provide for the nature of acts that constitute incest other than carnal knowledge. This
has left the provision to a wide interpretation because it is not clear or precise when
addressing the issue of incest and to who it is limited to or extended to, hence it may be
assumed that it is limited only to the male and female persons related through
consanguinity as provided for by the Act, and additionally, that certain acts of incest can
go unpunished.
In South Africa, the law on incest is provided for under the Criminal Law (Sexual
Offences and Related Matters) Amendment Act No 32, 2007, under section 12
subsection 1 and 2 of the Act. The law on incest in SA has clearly articulated the extent
of its prohibition. People who are related by blood and are ascendants and descendants
in the direct line are not allowed to have carnal knowledge even if they consent to the
act.
In analyzing the law on incest in SA in comparison to the law on incest in Zambia, it is

established that the Law on incest in SA goes an extra mile to prohibit acts of carnal
knowledge amongst family members related to each other either by blood or through
viii
marriage and deem them to be incest regardless of how remote they are. Thus, the law
on incest in Zambia should be amended to include relations not only through blood, but
also through marriage and adoption, and further provide for acts other than carnal
knowledge. There’s great need to extend the definition of incest to family members who
are related either by blood, marriage or adoption, and ascend and descend in the same
line either by marriage or by blood. Thus, recommendations have been made at the
close of this study to seal this gap in the law on incest in Zambia.
ix
Table of Contents
DECLARATION.......................................................................................................................................ii
SUPERVISOR’S RECOMMENDATION..............................................................................................iii
ACKNOWLEDGEMENTS......................................................................................................................v
LIST OF ACRONYMS.............................................................................................................................vi
ABSTRACT.............................................................................................................................................vii
CHAPTER ONE........................................................................................................................................1
INTRODUCTION..................................................................................................................................1
1.1 BACKGROUND OF STUDY...................................................................................................1
1.2 STATEMENT OF THE PROBLEM..............................................................................................3
1.2 OBJECTIVES OF THE STUDY..............................................................................................3
1.4 RESEARCH QUESTIONS............................................................................................................4
1.5 SIGNIFICANCE OF THE STUDY................................................................................................4
1.6 SCOPE OF STUDY.......................................................................................................................4
1.7 DEFINITION OF TERMS..............................................................................................................5
1.8 LITERATURE REVIEW.................................................................................................................5
1.9 METHODOLOGY...........................................................................................................................8
1.9.1 Research approach..............................................................................................................8
1.9.2 Data collection technique(s)..............................................................................................8
1.9.3 Methods of gathering secondary data.............................................................................9
1.9.4 Data analysis..........................................................................................................................9
1.10 ETHICAL CONSIDERATIONS..............................................................................................9
CHAPTER TWO.....................................................................................................................................10
EFFECTIVENESS OF THE LAW ON INCEST IN ZAMBIA.............................................................10
2.0 INTRODUCTION..........................................................................................................................10
2.1 DEFICIENCIES IN THE LAW GOVERNING INCEST............................................................10
2.2 ELEMENTS...................................................................................................................................13
2.3 PROHIBITED DEGREES......................................................................................................14
2.3.1 Consanguinity................................................................................................................14
2.3.2 Affinity.............................................................................................................................15
2.3.3 Other relationships.......................................................................................................17
2.4 CUSTOMS AND BELIEFS....................................................................................................18
2.5 OTHER REASONS WHY CERTAIN ACTS OF INCEST GO UNPUNISHED................19
2.5.1 Social and Procedural Obstacles..............................................................................19
x
2.5.2 Customary Law..............................................................................................................20
2.6 Conclusion.............................................................................................................................21
CHAPTER THREE.................................................................................................................................22
THE EFFECTIVENESS OF THE LAW ON INCEST IN SOUTH AFRICA.....................................22
3.0 INTRODUCTION..........................................................................................................................22
3.1 ORIGIN OF THE LAW.................................................................................................................22
3.1.1 Influences of the church: medieval Europe..................................................................23
3.2 CURRENT LAW ON INCEST....................................................................................................24
3.3 PROHIBITED DEGREES OF THE OFFENCE........................................................................26
3.3.1 Consanguinity......................................................................................................................26
3.3.2 Affinity...................................................................................................................................28
3.3.3 Adoptive relations...............................................................................................................29
3.4 UNLAWFULNESS.......................................................................................................................29
3.5 INTENT..........................................................................................................................................31
3.6 CONCLUSION..............................................................................................................................31
CHAPTER FOUR...................................................................................................................................33
COMPARISONS BETWEEN THE LAW ON INCEST IN ZAMBIA AND SOUTH AFRICA.....33
4.0 INTRODUCTION..........................................................................................................................33
4.1 LEGAL FRAMEWORK OF THE LAW ON INCEST IN ZAMBIA AND SOUTH AFRICA. 33
4.1.1 Elements...............................................................................................................................34
4.1.2 Intent......................................................................................................................................35
4.1.3 Prohibited Degrees.............................................................................................................36
1. Consanguinity.......................................................................................................................36
2. Affinity.....................................................................................................................................37
4.1.4 Unlawfulness.......................................................................................................................39
4.1.5 Other relations.....................................................................................................................39
4.2 CONCLUSION..............................................................................................................................40
CHAPTER FIVE......................................................................................................................................42
CONCLUSIONS AND RECOMMENDATIONS..................................................................................42
5.0 INTRODUCTION..........................................................................................................................42
5.1 GENERAL CONCLUSIONS.......................................................................................................42
5.1.1 Chapter One.........................................................................................................................42
5.1.2 Chapter Two.........................................................................................................................42
5.1.3 Chapter Three......................................................................................................................43
5.1.4 Chapter Four........................................................................................................................43
xi
5.2 RECOMMENDATIONS...............................................................................................................44
5.2.1 Expansion of The Definition of Incest......................................................................44
5.2.2 Expansion of The Elements of Crime.......................................................................44
5.2.3 Inclusion of Adoptive Children..................................................................................44
5.2.4 Clear Illustration of Prohibited Degrees..................................................................45
5.2.5 Flexibility of the Law on Incest..................................................................................45
5.2.6 Removal of Certain Procedural Requirements......................................................45
5.2.7 Awareness Campaigns................................................................................................45
5.2.8 Provide Limitations on Cultural and Religious Practices on incest.................46
BIBLIOGRAPHY....................................................................................................................................47
xii
CHAPTER ONE
INTRODUCTION
The term ‘Incest’ is defined as sexual intercourse between persons so closely related
that they are forbidden by law to marry 1. Chapter 87 of the laws of Zambia, also
known as The Penal Code, provides for the term ‘incest’ and what it encompasses. It
does not define what incest is per say, but rather provides for what constitutes incest.
This paper will thus analyze the restriction of the classification of incest as per Chapter
87 of the laws of Zambia, as well as make a comparison with the law of incest in South
Africa.
1.1 BACKGROUND OF STUDY
The Bible is one of the earliest references that have cited the law of incest. The New
Testament prohibits and condemns any sort of relations between a male and his father's
wife2. Before ratifying the old covenant in Genesis, God evidently allowed marital
relationships among family, and in fact blessed His people who were involved in such a
relationship. For instance, Abraham married Sarah, his half-sister 3, while Abraham's son
(Isaac) married Rebekah (his second cousin) 4, and Jacob (Abraham's grandson)
married his first cousins (Rachel and Leah) 5. Protestant Christians (Christians that
begun a movement in northern Europe in the early 16th century as a reaction to
medieval Roman Catholic doctrines and practices 6) view Leviticus 18:6-20 as part of the
“moral law” and still being applicable which strongly prohibits and condemns any type of
sexual/marriage relations between a male and his mother, sister, step-sister, step
mother. Leviticus further condemns relations between a man and the daughter of his
1
https://www.merriam-webster.com/dictionary/incest
2
1 Corinthians 5:1-5
3
Genesis 20:12; Genesis 17:15-16; 22:17
4
Genesis 22:20-23; 24:4,15
5
Genesis 24:29; 29:15-30
6
https://www.britannica.com/topic/Protestantism
1
wife or any other woman he may be having relations with, including the sister of the
woman he had/has sexual relations with while the first sister of that woman is still alive 7.
We can see that these moral laws from the Bible, are a reflection of the statutory laws
that govern us today.
From a scientific point of view, there have been scientific beliefs and reasons behind the
advancement of the origin of the incest “taboo” which form some of the rationale behind
the laws governing incest. It has been construed that a child born as a result of an
incestuous relation is born with a physical or mental defect 8, this is because incestuous
relations increase the passing of congenital family defects to offspring 9.
Other reasons for incest being prohibited include the protection of family units and the
protection of society. Regarding the protection of family units, the US Supreme Court
recognized that most values, morals and culture are passed down to our offspring 10.
Most of our daily practices, principals and morals are defined by the principles laid down
by our ancestors. When we talk about protecting society, it means that sanctions had to
be put in place to avoid incest from becoming an accepted norm in society.
Incest is a sexual offense under the penal code, even if the act was consensual by both
parties. The Penal Code does not explicitly define the word ‘incest,’ however, it has
categorized incest into two forms, the first being incest by males as per section 159 of
The Penal Code and incest by females as per section 159 (2) of the penal code.
Section 159 (1) of the Penal Code states that; “any male person who has carnal
knowledge of any female person who is to that person’s knowledge his grand-mother,
mother, sister, daughter, grand-daughter, aunt or niece commits a felony and is liable,
upon conviction, to imprisonment for a term of not less than twenty years and may be
liable to imprisonment for life.”11 Section 159 (2) further provides that, “ any female
person who has carnal knowledge of a male person who is to that person’s knowledge
her grand-father, father, brother, son, grandson, uncle or nephew commits a felony and
is liable, upon conviction, to imprisonment for a term of not less than twenty years and
7
Holy Bible, Leviticus 18
8
D. WALTERS, PHYSICAL AND SEXUAL ABUSE OF CHILDREN: CAUSES AND TREATMENT 112 (1975)
9
https://reproductive-health-journal.biomedcentral.com/articles/10.1186/1742-4755-6-17
10
Moore v City of E. Cleveland, 431 US. 494, 503-04 (1977)
11
Chapter 87 of the Laws of Zambia, section 159 (1)(2)
2
may be liable to imprisonment for life. Section 159 (3)12 further provides that it is
immaterial that the carnal knowledge was had with the consent of the other person.
Similar to the first category, this section basically entails that a female person aged or
above the age of 16 who agrees to have sexual relations with a person she knows is
her grandfather, father, brother or son, grandson, uncle or nephew is guilty of the
offense of incest.
1.2 STATEMENT OF THE PROBLEM
The Penal Code provides for the offense of incest and classifies what constitutes incest.
However, the provisions do not include or classify any adoptive relationship that person
may have with the other party. The Zambian Constitution also recognizes customary
law as a source of law in Zambia which frowns upon relationships between cousins.
Therefore, sexual relations between cousins can be classified as incest, in some
jurisdictions this is the case. However, the provisions of the Penal Code are silent on
that matter, they do not include relationships between cousins.
The Penal Code is also silent on the nature of the sexual acts that constitute incest
other than “carnal knowledge” (sexual intercourse). It does not provide for any other
form of sexual act.
With the recent development of same sex relationships growing rampant in Zambia,
there is no law prohibiting incest of same sex relationships in Zambia.
Thus, the Penal Code is restricted and has therefore left room for ambiguity. It does not
provide sufficient clarity when the matter of incest is being addressed. Hence, it may
even be implied that it is only limited to the persons mentioned under sections 159 (1)
and 161 of the Penal Code, i.e., females and males of blood relations/consanguinity,
and that certain sexual acts do not constitute incest.
1.2 OBJECTIVES OF THE STUDY
● To analyze how effective the law of incest is in Zambia;
● To analyze the effectiveness of the law of incest in South Africa; and
12
Chapter 87 of the Laws of Zambia, section 159
3
● To compare the effectiveness between the law governing incest in Zambia and
South Africa.
1.4 RESEARCH QUESTIONS
This study is based on the legal questions below:

1) Whether or not the law of incest is effective in Zambia;
2) How effective the law governing incest is in South Africa; and
3) Which law in comparison is more effective between that which governs incest in
Zambia or South Africa.
1.5 SIGNIFICANCE OF THE STUDY
The law on incest was enacted so as to generally prevent taboo and maintain moral
standards in society. However, if the law that prohibits incest has restrictions in
classifying persons who fall under it, it may lead to serious implications. Thus, this
research will enable us to understand why it is important to have a high degree of
prohibition, i.e. to have a broader classification of acts of carnal knowledge that
constitute incest; and further determine the extent of the implications, for instance,
leaving such loopholes could easily give the unclassified individuals the liberty or
justification to commit the offense of incest. This study will therefore effectively make an
impact on the current legislation and could possibly lead to the amendment of the
provisions in question and thus close the current gap in that law in Zambia.
1.6 SCOPE OF STUDY
This research will focus on the analysis of section 159 (1) and 161 of Chapter 87 of the
Laws of Zambia - the Penal Code. The research will make a critical analysis on what the
law classifies as incest and examine what happens when persons of affinitive relations
or blood relations not mentioned under the above sections have carnal knowledge. This
research will also make comparative analysis from section 12 (1) and (2) of the Criminal
4
Law (Sexual Offences and Related Matters) Amendment Act No 32, 2007 of South
Africa.
1.7 DEFINITION OF TERMS
“Affinity,” relationship by marriage between the husband and the blood relations of the
wife, and between the wife and the blood relations of the husband; 13
“Ambiguous,” unclear, vague, confusion as to the meaning of something or that which
can be open to various interpretations;14
“Carnal Knowledge,” an act of especially illegal sexual intercourse; 15
“Consanguinity,” kinship; blood relationship; the connection or relation of persons
descended from the same stock or common ancestor;16
“Consent,” to give assent or approval;17
"Knowingly," used in connection with any term denoting uttering or using, implies
knowledge of the character of the thing uttered or used; 18
1.8 LITERATURE REVIEW
The definition of Incest and its implications to various aspects of the society has been a
topic that has been written by numerous authors in the past. As stated by Maureen
Wright in an article, “the complexity of the topic shown by its relationship to sociology,
psychology, anthropology, philosophy, law, religion and history 19 makes incest a topic
that ought to be clearly understood by practitioners of Law and society.”
In general, Laws and definitions/classifications of Incest vary considerably between
jurisdictions and are based on determinants such as the type of sexual activity, sex of
the involved parties, as well as nature of the relationship between them. For example,
Richard M. Sarles wrote in an article on sexual abuse of children, discussing the
13
https://dictionary.thelaw.com/affinity/
14
https://dictionary.thelaw.com/ambiguous/
15
https://www.merriam-webster.com/legal/carnal%20knowledge
16
https://dictionary.thelaw.com/?s=consanguinity
17
https://www.merriam-webster.com/dictionary/consent
18
Chapter 87 of the Laws of Zambia, section 4.
19
https://journals.sagepub.com/doi/10.1177/000841748104800307.
5
persons to whom incest extends to – such as stepchildren and adopted children.
Furthermore, he related the act of incest to cover not only sexual intercourse, but
merely having “sexual intent” which could be in the form of fondling to genital contact. 20
According to an article by RB Weeks, Incest (defined by Weeks as “sexual activity
between consanguineous family members”) constitutes one of the three (3) major forms
of sexual abuse suffered by children 21. Baris Sancak MD in an article titled “Mother–
daughter incest”22 alluded that incest does not only entail sexual intercourse but any
form of sexual behavior among family members which include touching. Baris further
stated that incest is a traumatic stressor that causes long-term psychological sequelae.
The severity of psychological consequences of abuse depends on many factors such as
starting age, duration of abuse, presence of coercion, violence, penetration, and
closeness to the perpetrator. Having stated this, according to D. A. Batten, because of
the psychological impact of incest, acts of incest are barely reported because disclosure
may lead to rejection and as a result, victims are troubled by guilt, shame and fear of
reprisals23. Louw, in a book called “Human Development” 24 alluded that parenting skills
play an important role in a child’s development. There are different parenting styles, and
each could have an effect, positive or negative, on the child’s decision to disclose incest
with his father, and also on the maternal response upon discovery.
It is worth noting that there are different ranges of factors that may contribute to the
development and maintenance of incest. Faller25 and Reege26 stated that the probability
of sexual abuse can be increased by the range of complex factors that include the
individual, which in this case can be the victim, the perpetrator or the mother; family
20
https://pedsinreview.aappublications.org/content/2/2/51
21
https://scholar.google.com/scholar_lookup?hl=en&volume=69&publication_year=1976&pages=848-
850&author=R.B.+Weeks&title=The+sexually+exploited+child
22
Sancak, Barış et al, Mother–daughter incest: A brief review of literature and case report. Journal of Forensic
Sciences 66 (2021): n. pag.
https://www.semanticscholar.org/paper/Mother%E2%80%93daughter-incest%3A-A-brief-review-of-and-case-
Sancak-Tasdemir/df8eb63a0bcc06323c57ee2d7a538e88417ab7e5
23
Med. Sci. Law (1983) vol. 23, No. 4. Page 245
https://journals.sagepub.com/doi/abs/10.1177/002580248302300404
24
Human development By D. A. Louw, D. M. Van Ede, A. E. Louw, A. Botha, 1998, 2 nd edition
25
Faller, K. C. (1988). Child sexual abuse: An interdisciplinary manual for diagnosis, case management, and
treatment. Columbia University Press.
26
https://wiredspace.wits.ac.za/server/api/core/bitstreams/b1f82245-7e02-4c34-9dfd-af3d385bf090/content
6
factors and the environment27. Other authors refer to these as factors that increase the
risks for incest to occur, and according to Friedrich28 each factor increases the risk by
10-20%29. Furthermore, Nakashima and others explain incest as being one of the
strongest and most consistent taboos in both primitive and highly developed cultures 30.
Bixler31 adds more context in which we see that incest has layers of meaning such as
the specific relationship between the individuals; age differential; degree of sexual
activity; consent; and duration of the sexual relationship. However, having said this,
there is a definitional confusion that occurs. For instance, according to the Oxford
Dictionary of Public Health, incest is defined as “Sexual intimacy between close blood
relations; i.e., siblings, parent and child, uncle-niece, aunt-nephew” 32. Yildirim report
that father–daughter incest is the most common version, followed by brother to sister
versions. Incest also includes sexual activities between adult members of a family who
are not in a partnership (e.g., husband and wife) relationship. This can include adult
children, close relatives and people who have blood ties with each other 33. Green
further alludes that all incest involves intra-familial perpetrators including those who are
tied by blood and those tied by contractual relationships 34.
Most researchers offer a more limited view, such as the requirement for sexual
intercourse35. Therefore, it becomes pertinent for any Jurisdiction to have clear laws
and definitions of Incest.
Thus, unlike, most researchers that have only focused on one aspect of incest, such as
Richard. M. Sarles whose study only covers children, this research will analyze the
27
ibid
28
William N. Friedrich, Sexual victimization and sexual behavior in children: A review of recent literature Child
Abuse & Neglect, volume 17, Issue 1, pages 59 - 66
Sexual victimization and sexual behavior in children: A review of recent literature.
https://www.sciencedirect.com/science/article/abs/pii/014521349390008S
29
https://wiredspace.wits.ac.za/server/api/core/bitstreams/b1f82245-7e02-4c34-9dfd-af3d385bf090/content
30
https://journals.healio.com/doi/abs/10.3928/0090-4481-19790501-06
31
Ray H. Bixler, The Incest Controversy, vol 49, issue 1.
https://journals.sagepub.com/doi/10.2466/pr0.1981.49.1.267
32
Oxford Dictionary of Public Health, “2007, oxford press 2nd ed”
33
Yildirim, Ali, Erdal Ozer, Hasan Bozkurt, Sait Ozsoy, Ozgur Enginyurt, Durmus Evcuman, Riza Yilmaz, and Yunus E.
Kuyucu: Evaluation of social and demographic characteristics of incest cases in a university hospital in Turkey 2014
34
Green, Stuart P. (2019). Incest. In Larry Alexander & Kimberly Kessler Ferzan (eds.), The Palgrave Handbook of
Applied Ethics and the Criminal Law. Springer Verlag. pp. 337-357.
https://philpapers.org/rec/GREI-61
35
C. Peter and S. Radha, A need to Act: Incest as a crime given low priority- a review with India. 2021 p3
7
entire current law pertaining to incest in Zambia and will aim to justify the importance of
having a higher degree of prohibition i.e., to have a broader classification of the acts of
carnal knowledge that constitute incest, and further determine the extent of the
implications of incest. This research will be looking at all aspects of incest such as
definitional differences. As seen in the articles cited above, most researcher’s work
often extends only to sexual intercourse, while other researchers regard sexual
intentions such as inappropriate touching to amount to the act of incest, other authors
such as Bixler, talk about duration of the sexual relationship in considering what
constitutes incest and this brings about one of the major definitional differences and
confusion as to what exactly constitutes incest and who the perpetrators that fall under
the classification of incest are.
Therefore, this research will aim at closing this definitional gap so as to cover a much
broader spectrum of the law of incest and not leave room for ambiguity when matters of
incest are being addressed. At the close of this study, it is expected that this research
will make an effective impact on the current legislation and close the current gap in that
law in Zambia.
1.9 METHODOLOGY
1.9.1 Research approach
This research will use the qualitative approach through desk study as its aim is mainly
to analyze the classification of incest under the penal code. This particular approach will
be ideal as the study is focusing on critical analysis of the classification of incest under
the Penal Code of Zambia, while making a comparison to the classification of incest in
the Criminal Law (Sexual Offences and Related Matters) Amendment Act of South
Africa.
1.9.2 Data collection technique(s)
The information that will be used in this research will be obtained strictly from experts in
this area of study or related study, books, websites, journals, articles and statutes
written on this particular study
8
1.9.3 Methods of gathering secondary data
Secondary data collection will be obtained from books, articles, statutes, journals and e-
sources, cases, etc.
1.9.4 Data analysis
Information that will be gathered for the purposes of this research will be critically
analyzed through consultation of literature such as journal articles, cases, books,
dissertations, Acts of Parliament, international instruments, credible internet sources,
etc.
1.10 ETHICAL CONSIDERATIONS
Authorization to conduct this research will be attained from the University of Lusaka’s
Ethical committee who will give ethical clearance of the study. Secondary information
will be obtained from published documents of different credible authors.
9
CHAPTER TWO
EFFECTIVENESS OF THE LAW ON INCEST IN ZAMBIA
2.0 INTRODUCTION
This chapter will concern itself with the discussion on the present status of the law on
incest in Zambia. This chapter will elucidate on the deficiencies of the law of incest in
Zambia in order to demonstrate how effective the law on incest is in Zambia.
2.1 DEFICIENCIES IN THE LAW GOVERNING INCEST
The Penal Code chapter 87 of the Laws of Zambia is the primary statute that governs all
sexual offences in Zambia, offences such as Rape, Defilement, Incest, Indecent
assault, to mention a few, are all covered by the Penal Code 36 and these offences are
generally referred to as offences against morality.
Throughout history, societies have circumscribed certain forms of intimacy in the family
setting. Transgression has been punished by force of ecclesiastical rules and
government statutes. However, no single definition of incest is widely accepted 37.
According to the English dictionary, “incest is the crime of two members of the same
family having sexual intercourse”38.
This definition of incest in law is too abstract because it is not specific enough to outline
the type of family relations it is referring to, is it; relations of consanguinity, affinity, direct
descendants of the blood line or adoptive relationships at best. The penal code under
sections 159 to section 164 establishes the crime of incest and sets out its definition
and it’s prohibited degrees by setting out the relations.
36
Penal Code chapter 87 of the Laws of Zambia
37
Incest. Its causes and repercussions - PubMed (nih.gov)<accessed-on-26th-feb-2022>
38
Incest definition and meaning | Collins English Dictionary (collinsdictionary.com)<accessed-
on-28-feb-2022>>
10
Section 159 provides:
“(1) Any male person who has carnal knowledge of a female person who is to that
person’s knowledge his grandmother, mother, sister, daughter, granddaughter, aunt, or
niece commits a felony and is liable, upon conviction, for a term of not less than twenty
years and may be liable to imprisonment for life
(2) Any female person who has carnal knowledge of a male person who is to that
person’s knowledge her grandfather, father, brother, son, grandson, uncle or nephew
commits a felony and is liable, upon conviction, for a term of not less than twenty years
and may be liable to imprisonment for life.
(3) For the purposes of this section, it is immaterial that carnal knowledge was had with
consent of the other person.
(4) Any person who attempts to commit incest commits a felony and is liable to
imprisonment for a term of not less than ten years and not exceeding twenty-five
years.”39
“On the conviction before any court of any male person of an offence under section one
hundred and fifty-nine, or of an attempt to commit the same, against any female under
the age of twenty-one years, it shall be in the power of the court to divest the offender of
all authority over such female, and, if the offender is the guardian of such female, to
remove the offender from such guardianship, and in any such case to appoint any
person or persons to be the guardian or guardians of such female during her minority or
any less period”
39
Act Number 15 of 2005, Chapter 87 of the Laws of Zambia
11
“(1) Any female person of or above the age of sixteen years who with consent permits
her grandfather, father, brother, uncle, nephew, son or grandson to have carnal
knowledge of her knowing him to be her grandfather, father, brother, uncle, nephew,
son or grandson, as the case may be, commits a felony and is liable, upon conviction, to
imprisonment for a term of not less than twenty years and may be liable to
imprisonment for life: Provided that a female child commits an offence under this
subsection is liable to such community service or counselling as the court may
determine in the best interests of the child.
(2) Any male person of or above the age of sixteen years who with consent permits his
grandmother, mother, sister, aunt, niece, daughter or grand-daughter to have carnal
knowledge of him knowing her to be his grandmother, mother sister, aunt, daughter or
grand-daughter, as the case may be, commits a felony and is liable, upon conviction, to
imprisonment for a term of not less than twenty years and may be liable to
imprisonment for life”40.
“In sections one hundred and fifty-nine and one hundred and sixty-one, “brother” and
“sister”, respectively, include half-brother, half-sister and the provision of the said
sections shall apply whether relationship between the person charged with an offence
and the person with whom the offence is alleged to have been committed is or is not
traced through lawful wedlock”
“(1) If, on the trial of any information for or charge of rape, the court is satisfied that the
defendant is guilty of an offence under section one hundred and fifty-nine, but is not
satisfied that the defendant is guilty of rape, the court may acquit the defendant of rape
and find him guilty of an offence under section one hundred and fifty-nine, and he shall
be liable to be punished accordingly. Conviction of incest lawful on charge of rape
40
ibid
12
(2) If, on the trial of any information for or charge of an offence under section one
hundred and fifty-nine, the court is satisfied that the defendant is guilty of an offence
under section one hundred and thirty-eight or one hundred and thirty-nine, but is not
satisfied that the defendant is guilty of an offence under section one hundred and fifty-
nine, the court may acquit the defendant of an offence under section one hundred and
fifty-nine and find him guilty of an offence under section one hundred and thirty-eight or
one hundred and thirty-nine, and he shall be liable to be punished accordingly”.
“No prosecution for an offence under section one hundred and fifty-nine or one hundred
and sixty-one shall be commenced without the sanction of the Director of Public
Prosecutions”
An analysis of these provisions shows that the Act criminalizes the act of incest and
sets out the elements of the crime and the extent of the prohibited degrees of the act.
However, an analysis of the provisions criminalizing incest shows some deficiencies;
starting with the elements of the crime itself.
2.2 ELEMENTS
As stated above in section 159 (1) and (2) 41, this section stresses out the first element
for the crime of incest which is carnal knowledge.
Carnal knowledge has been defined by Blacksmith law dictionary to mean, the act of
having sexual intercourse between the man and the woman 42.
This element can cause controversy because it does not include other forms of sexual
activity such as lip kissing between brother and sister, fondling of genitals between
brother and sister, or between mother and son, or between father and daughter.
Further, it also does not cover certain acts against the order of nature such as same sex
sexual activities. Although the law under the penal code indirectly prohibits
41
Penal Code Chapter 87 of the Laws of Zambia
42
Black's Law Dictionary (10th ed. 2014)
13
homosexuality,43 there’s been a visible increase in homosexual conduct in Zambia and
the world at large. Thus, it may be of importance to include and provide for same sex
acts of incest. These other sexual activities do not involve the penetration of the female
vagina by the male penis thus falling outside the scope of carnal Knowledge. Such acts
are frowned upon by society at large but have no legal backing for prosecution,
meaning that sister and brother, aunt and niece (same sex), and even parents with their
children can engage in these activities and go unpunished.
2.3 PROHIBITED DEGREES
This refers to a degree of affinity (relation by marriage or sexual relationship) or

consanguinity (blood relatedness) that makes certain conduct between people illegal. It
is known as a banned degree of kinship in law 44.
2.3.1 Consanguinity
The laws governing things such as rules of descent and property distribution, the
degree of relationship between which marriage is prohibited under the laws pertaining to
incest, and a basis for determining who may serve as a witness all have consanguinity
as their foundation45.
Initially, there are two types of consanguinity, lineal consanguinity and collateral
consanguinity. A direct relationship, such as that between a parent, child, and
grandmother, is referred to as lineal consanguinity. Either upward, as in the case of a
son, father, or grandpa, or downward, as in the case of a son, grandson, or great-
grandson, can be ascertained.46
43
Penal Code Chapter 87 of the Laws of Zambia, section 155.
44
https://familypedia.fandom.com/wiki/Prohibited_degree_of_kinship
45
Consanguinity legal definition of consanguinity (thefreedictionary.com)<<accessed-on-28-06-
2022>
46
ibid
14
A more distant relationship known as collateral consanguinity describes individuals who
share a common ancestor but are not descended from one another, such as cousins
who share the same grandparents 47.
According to the definition of incest provided under sections 159 of the Penal code 48, it
is clearly noted that it is lineal consanguinity with only a little incorporation of collateral,
this is evident from the wording of the provision and it only makes mention of;
a) grandmother;
b) mother;
c) sister;
d) daughter;
e) granddaughter;
f) aunt;
g) niece;
h) grandfather;
i) father;
j) brother;
k) son;
l) grandson;
m) uncle; and
n) nephew.
The provision does not include much on the collateral, this is due to the fact that it does
not make mention of relationships between cousins but only makes mention of uncle,
nephew, aunt and niece, making sexual relations between cousins outside the definition
of incest provided for by the Act.
2.3.2 Affinity
Affinity refers to a person's connection to a spouse's blood relatives as a result of their

marriage.
47
ibid
48
Act No. 15 of 2005
15
The maxim of canon law that a husband and wife become one via marriage served as
the foundation for the notion of affinity. Affinity comes in three different forms. There’s a
direct affinity between the husband's and wife's blood relatives, or between the wife's
and husband's relatives. A secondary affinity exists between a spouse and the married
relatives of the other spouse. Between a spouse and the relatives of the other spouse's
family, there is collateral affinity. The finding of affinity is crucial in a variety of legal
situations, including assessing whether to charge someone with incest or exclude a
juror due to bias49.
The figure below will help in describing and understanding affinity relationships:
Figure 1
With reference to the figure above, the first form of affinity, which is direct affinity, entails
that all members or relatives on the left from the father’s side are in an affinity relation
with the mother on the right. This entails that all members on the father’s side such as
grandparents, will regard the mother as their daughter, or their niece in the case of
uncles and aunties and vice versa.
49
Affinity legal definition of affinity (thefreedictionary.com)<<accessed-on-27-06-2022>>
16
Secondary affinity is the relationship between a husband/father and all members on the
right (wife/mother’s relatives, this includes other married members of the wife’s/
mother’s relatives thereby extending the family system, and a wife/mother and all
members on the left (husband/father’s relatives, including other married members of the
husband/father’s relatives as well).
The definition of incest provided for in the penal code does not include affinity
relationships. It is silent on that aspect.
2.3.3 Other relationships
Adoptive children: “Adoption is the social, emotional, and legal process in which children
who will not be raised by their birth parents become full and permanent legal members
of another family while maintaining genetic and psychological connections to their birth
family.”50 Section 200 (1) of The Children’s Code Act further provides for persons who
are eligible to adopt a child and extends this criterion to persons who are related to the
child51. The Children’s Code Act, however, prohibits certain individuals from applying to
be adoptive parents. These include:
“(a) a single man in respect of a female child and a single woman in respect of male
child;
(b) a person from whose care a child has been removed under this Act;
(c) a person who is excluded from taking care of a child under this Act;
(d) a person convicted of an offence and sentenced to a term of imprisonment

exceeding six months without the option of a fine; and
(e) a person who has been convicted of an offence under this Act.” 52
50
https://www.childwelfare.gov/topics/adoption/intro/
51
The Children’s Code Act No. 12 of 2022, section 200 (1) (b)
52
The Children’s Code Act No. 12 of 2022, section 200 (3)
17
In as much as this provision reduces the risks of matters to do with defilement or rape
and even incest to an extent, there are still many questions that one would raise, for
instance, is an adoptive parent allowed to marry their adoptive child in an event that a
couple divorces or one of them dies? Can adoptive children marry or have sexual
relations with their non-biological siblings, cousins, aunties, uncles or grandparents?
Questions such as these would not be raised if adoptive relations were provided for in
the definition of Incest.
The penal code in section 162 alludes to the aspect of half-brother and half-sister and
that’s as far as it goes. There’s a very clear distinction between half siblings and
adoptive children in the sense that half siblings have some form of biological relation as
they are related through one parent, whereas an adoptive child can or cannot be
biologically related to either of the parents as provided for in section 200 (1) of
Children’s Code Act. In an article by RB Weeks, 53 incest is said to constitute one of the
three major forms of child abuse. Additionally, according to the annual GBV statistics for
the year 2021 in Zambia54, it was revealed that a total number of 2,238 cases of child
defilement equating to 72.6% were recorded, of which 2,219 were girls and 19 were
boys, representing 99.2% and 0.8% of all the reported cases.
Therefore, it is very important that children are in every way protected by the law
regardless of whether or not a child is in an identical position to that of a legitimate child.
The definition of incest in the Penal Code, however, is silent on relations between
adoptive parent and adopted children.
The general definition of incest given by the Penal Code, though seemingly
comprehensive, is not comprehensive enough.
2.4 CUSTOMS AND BELIEFS
53
https://scholar.google.com/scholar_lookup?hl=en&volume=69&publication_year=1976&pages=848-850&author=R.B.
+Weeks&title=The+sexually+exploited+child
54
http://www.zambiapolice.gov.zm/index.php/112-news/390-gbv-data-2021#:~:text=A%20total%20of%202%2C238%20cases,of
%20all%20the%20reported%20cases.
18
The Constitution of Zambia in its preamble recognizes the “multi-ethnic, multi-racial,
multi-religious and multi-cultural character of our Nation.” 55 Further, Article 19 (1) of the
Constitution provides:
“Except with his own consent, no person shall be hindered in the enjoyment of his
freedom of conscience, and for the purposes of this Article the said freedom includes
freedom of thought and religion, freedom to change his religion or belief, and freedom,
either alone or in community with others, and both in public and in private, to manifest
and propagate his religion or belief in worship, teaching, practice and observance.” 56
This provision of the law entails that individuals have been accorded the right to freely
practice their beliefs without hinderance. Additionally, the Marriage Act of Zambia57
has explicitly excluded customary law from its purview. This means that individuals who
practice certain cultural, religious or traditional rites that allow incest can get away with
getting into incestuous marriages as a form of practicing their beliefs which is a freedom
granted to them by the Constitution.
Therefore, there’s great need to place explicit limitations in line with incest on this
freedom so as to curb the increasing rate of incest in Zambia.
2.5 OTHER REASONS WHY CERTAIN ACTS OF INCEST GO UNPUNISHED
2.5.1 Social and Procedural Obstacles
Despite having some deficiencies in the law governing incest, these are not the only
reasons as to why acts of incest go unpunished. According to the research conducted
by Young Woman Christian Association (YWCA) and Women in Law in South Africa,
incest is largely unreported in Zambia and the research findings show that this is due to
the social and procedural obstacles that are faced by victims of incest in Zambia 58.
These procedural obstacles where apparent in an unreported case that involved a
55
The Constitution of Zambia No. 2 of 2016, preamble.
56
The Constitution of Zambia No. 2 of 2016, section 19 (1).
57
The Marriage Act, Chapter 50 of the Laws of Zambia.
58
Times of Zambia “Unreported sexual offences worrying women’s law body”, 3rd May 2001
19
young girl who had allegedly been raped by her father 59. Due to the pressure of being
subjected to a public hearing, the girl failed to testify. The judge thus dismissed the case
as a result of the girl being unable to testify under oath and further declared that she did
not seem sufficiently intelligent for the court to accept her written statement 60. This case
clearly shows how perpetrators of incest go unpunished.
Additionally, due to the sensitive nature of the offence, it being subject to public hearing
makes other family members unwilling to take such cases to court even where they
know that children are being abused.
2.5.2 Customary Law
The recognition of customary law as a source of law in Zambia and its influence also
plays a role in the unreported cases of incest. Article 23 (4) (c) and (d) of the
Constitution of Zambia61 recognizes the application of customary laws in certain
matters impacting human rights, especially those of women and children. Customary
law and practice place women in an inferior position to men with respect to property,
inheritance and marriage, which contradicts various constitutional and legislative
provision. It is this subordinate position of women to men that causes some women not
to report cases of incest. Also, the research conducted by Young Women Christian
Association showed that the fact that the person committing incest is the economic
provider of the family serves as a disincentive to reporting this crime as members of the
family are afraid of losing their only source of income.
Incest is an inescapable problem in Zambia, this is according to the research conducted

by the Young Women Christian Association (YWCA) and those by Women in Law in
Southern Africa (WLSA)62. According to the annual GBV statistics for 2021, 64 cases of
59
“Seven year old girl contracts syphilis” The LRF News, No. 25, march 2001. www.lirf.org.zm/Newsletter/march 2001
60
Charles Mubambe, “Droits-zambia: Un jugement clement provoque. I indignation des defenseurs des droits de I Homme”,
International Press Service, 9 january 2001.
61
Constitution of Zambia Act No. 2 of 2016
62
Times Zambia, “unreported sexual offenses worrying women’s law body”, 3 may 2001
20
incest were recorded in which 17 victims were girls, 45 were women and two were
men63.
2.6 Conclusion
This chapter has endeavoured to highlight the deficiencies within the law regarding
incest in Zambia in order to show the extent to which the law is effective in regulating
this inescapable problem. The chapter has shown the deficiencies within the elements
of the offence, as well as the prohibited degrees. It has further shown other reasons
why the offence of incest goes largely unreported thus becoming an ever-growing
problem.
63
http://www.zambiapolice.gov.zm/index.php/112-news/390-gbv-data-2021#:~:text=74%20attempted%20rape%20cases,women
%20and%20two%20were%20men.
21
CHAPTER THREE
THE EFFECTIVENESS OF THE LAW ON INCEST IN SOUTH AFRICA
3.0 INTRODUCTION
This chapter will endeavor to highlight the extent to which the law of incest is effective in
South Africa. It will begin by outlining the origin of the law of incest in south Africa, then
highlight the current law on incest and illustrate the extent to which it is effective.
3.1 ORIGIN OF THE LAW
From the onset, it is important to note that the South African common law governing the
offense of incest is of Roman Dutch Law origin, uninfluenced by English common law. 64
Intermarriage relationships or relationships with close relatives was disapproved from

the earliest of time65. Early laws like the lex lulia de Adulteris (18 BC) were only intended
to forbid marriages between blood relatives. Law of Rome differentiated between
incestus iuris gentium, which was forbidden for the reasons that such behavior was
contrary to moral principles and incestus iuris civilis, which the ius civilium merely
forbade. In the present, according to South African law, incestus involved interpersonal
sexual relations, of whom, because of their close level of relationship, were prohibited
from being married. The union of ascendants and descendants, regardless of whether
they were blood relations (cognatio) or related by adoption (agnatio) were prohibited66.
64
N. Mary, “A case study in determining the optimal use of criminal sanction” 2003 p83
65
66
ibid
22
Collaterals who were only two degrees or fewer apart from a common ancestor and
within four degrees of one another were forbidden from being married. These guidelines
apply to blood relatives, adoption-related relationships, and marriage-related
relationships (adfinitas).67
3.1.1 Influences of the church: medieval Europe
Incest committed against church law or canon law must be distinguished from incest
that is punishable as a crime. Certain consanguineous relationships and specific types
of affine sexual activity were prohibited by the Old Testament 68.
These restrictions served as the foundation for the Christian Church's conception of
marriage, but they also significantly broadened the scope of interactions that were
considered to be incest69. The Roman emperors outlawed incest beginning in the fourth
century AD and continuing till today in part as a reaction to the retention of pagan
practices since it was thought that pagans were more prone to licentious behavior and
sexual depravity, including incest. Brundage hypothesizes that rules against incest were
intended to give the Church financial advantages 70.
The incest restriction increased the possibility that the Church would inherit property
from wealthy individuals by decreasing their likelihood of using interfamilial marital
alliances to maintain control of ancestral estates within the kinship group 71.
By the ninth century AD, Pope Gregory the Great's Responsa Gregori had established
new standards for consanguinity and affinity and forbade marriages between blood
relatives within seven degrees of separation. 72 The idea that blood relatives of the
respective spouses were regarded to be related to one other through consanguinity and
were therefore subject to the prohibition against marriage also arose from the fact that
Christian marriage was seen as a "oneness" of the couples 73. Marriage between
godparents and godchildren, godparents and all other adults in the godchild's family,
67
Milton SA Criminal Law & Procedure: Common Law Crimes 237 and the Roman-Dutch authorities quoted there.
68
69
ibid
70
ibid
71
ibid
72
ibid
73
ibid
23
and godparents of the same child were all prohibited. It's interesting to note that even
unintentional incest, in which the parties were unaware of their relationship within the
prohibited degrees, was prohibited.
However, once the couples were married, the Church rarely permitted divorce on
grounds of consanguinity or affinity due to the clerically imposed theory of dissolubility
of marriage74.
The Political Ordinance 1 of April 1580 served as the source for the definition of incest
used in South African law, which was derived from Roman-Dutch law. There are now
both more and fewer groups of people for whom having sexual contact with one another
constitutes incest. The Marriage Act 25 of 1961 somewhat narrowed the prohibition on
sexual activity between affinity relatives while maintaining the prohibited degrees of
consanguinity.75
3.2 CURRENT LAW ON INCEST
Common law Incest is described as the illicit and purposeful sexual activity between
(male and female) individuals who are not permitted to wed due to their degree of
consanguinity, affinity, or adoption relationship. It is a dynamic offense in that the private
law regulations governing the levels of consanguinity and affinity beyond which a man
and woman cannot get married are reflected in its definition (as well as any statutory
provisions regarding when marriage between two persons in an adoptive relationship is
forbidden)76. As more people are added to the list of those who cannot be married
because of close blood, marriage, or adoption links, the group of people between whom
incest is possible either grows or shrinks.
The South African law on incest is not codified in one single piece of legislation but in
several pieces of legislation. For instance, the general prohibition of the offence is found
under section 12 of the Criminal Law (sexual offences act and related matters)
amendment act 2007 which states that:
74
ibid
75
ibid
76
24
“(1) Persons who may not lawfully marry each other on account of consanguinity, affinity
or an adoptive relationship and who unlawfully and intentionally engage in an act of
sexual penetration with each other, are, despite their mutual consent to engage in such
act, guilty of the offence of incest.
(2) For the purposes of subsection (1)—
(a) the prohibited degrees of consanguinity (blood relationship) are the following: (i)
Ascendants and descendants in the direct line; or (ii) collaterals, if either of them is
related to their common ancestor in the first degree of descent;
(b) the prohibited degrees of affinity are relations by marriage in the ascending and
descending line; and
(c) an adoptive relationship is the relationship of adoption as provided for in any other
law.
(3) (a) The institution of a prosecution of a person who is a child at the time of the
alleged commission of the offence referred to in subsection (1) must be authorized in
writing by the National Director of Public Prosecutions.
(b) The National Director of Public Prosecutions may not delegate his or her power to
decide whether a prosecution in terms of this section should be instituted or not.”
This provision sets out the general prohibition of the offence and defines its degree and
sets out its element. The only behavior that is now penalized as incest is sexual
intercourse (defined narrowly as penetration involving the male placing his penis into
the female's vagina). Although the fact that the parties have cohabited after the
celebration of a (putative) marriage can be used to infer sexual intercourse, marriage
within the forbidden degrees without evidence of intercourse is insufficient 77.
Homosexuality in South Africa is not prohibited by law. Meaning same sex sexual
conduct and marriages are permitted in South Africa. However, The Criminal Law
(sexual offences act and related matters) amendment act 2007 of SA does not include
77
25
same sex acts in its definition of incest despite the ever increasingly rampant
homosexual conduct in South Africa.
As comprehensive as definition of incest may seem, the law in South Africa generally
does not prohibit same sex relations. This makes this aspect a deficiency since the law
does not cover or include such relations in its definition.
3.3 PROHIBITED DEGREES OF THE OFFENCE
Intercourse does not constitute incest when marriage is prohibited for reasons other
than a close blood, marital, or adoptive relationship, such as when one person is
already married. No distinction is made between children born in wedlock and those
born out of wedlock in evaluating whether parties are connected within the prohibited
degrees of consanguinity or affinity. In a similar vein, it is irrelevant whether the parties
are full or partial blood relatives.78
3.3.1 Consanguinity
There is a consanguinity or blood link between individuals who share an ancestor.

Consanguinity can occur in the collateral line or in the direct line. The only blood
relatives who are related in the direct line are those who are each other's ascendants
(ancestors) or descendants (offspring), such as a father and daughter or a grandfather
and granddaughter. All other blood relatives, such as an uncle and a niece, siblings, or
cousins, are collaterals. Blood relatives who are ascendants and descendants in the
direct line ad infinitum may not marry, and if they have sexual relations with one
another, they shall commit incest. Incest is the term used to describe sexual activity
between collaterals who are related to one another in the first degree of descent. 79
78
ibid
79
Thus this category includes brother and sister (eg R v Troskie 1920 AD 466); uncle and niece (but only where they
are related by blood - see RvD 19572 SA 74 (E)) or grandniece (eg R v M 1957 2 SA 73 (E)) and aunt and nephew,
but excludes first cousins
26
The proximity or distance of the relationship is measured in degrees of separation
between two individuals. The chart below serves as guideline in determining degrees of
separation and prohibited degrees.
Figure 2
The chart shows us that there is one degree of separation between a child and parents.
There is also one degree of separation between us and our children. We are directly
descended from our parents and our children are directly descended from us. Because
we are not the direct descendant or direct ancestor of our siblings, but share one or
both parents in common, there are two degrees of separation between us and our
siblings.80
80
https://www.legacytree.com/blog/consanguinity-explained
27
Further, there are four degrees of separation between us and our first cousins, three
degrees of separation between our grandparents and aunt/uncles and so on. In simpler
terms, one degree of separation means one person away from you. For instance, our
parents are separated from us by one degree, and our grandparents are separated from
us by two degrees. Thus, our first cousins are separated from us by four degrees
because they are four people (including yourself) away from you (i.e., for example, a
mother, her brother, her brother’s child).
“Once removed” simply means that one of you is a generation removed from the
generation of the other. “Twice removed” means that you are on the same generational
level as that person’s grandparents or grandchildren, 81 meaning that person’s
grandparents or grandchildren could be for example close in age to yours.
3.3.2 Affinity
An individual develops affinity bonds with their spouse's blood relatives. Despite the fact
that according to sections 2 (1) and 2 (2) of the Recognition of Customary Marriages
Act 120 of 1998, customary unions are supposedly treated equally to civil unions for all
purposes, however, it seems that only legally recognized civil law marriages result in a
connection of affinity. As stated in section 3 (6) of the aforementioned Act 82, "the
prohibition of a customary marriage between persons on account of their relationship by
blood or affinity is decided by customary law," this is the case 83.
Even if the marriage is terminated by death or divorce, relations by marriage in the

ascending and descending line cannot marry, and any sexual activity between them is
consequently incest.
In terms of marriage relations in the collateral line, there is significant ambiguity

regarding the legal situation. On the one hand, it is evident that the Roman-Dutch law
rule that forbade a man from being married to his (dead or divorced) wife's
consanguineous relatives, whom she would not have been allowed to wed had she
81
82
Customary Marriages Act 120 of 1998
83
28
been a man (and vice versa), has been eliminated. On the other hand, if someone
engages in sexual activity with a collateral related via affinity before their marriage to
their spouse is dissolved due to death or divorce, that activity technically constitutes
incest.
It could be argued, nevertheless, that such behavior is more appropriately classified as

(non-criminal) adultery than as incest. Smyrna and Milton concur with this viewpoint;
hence it is asserted that the incest restriction relating to affinity only prohibits those in
the ascending and descending line, not collaterals 84.
3.3.3 Adoptive relations
The Child Care Act 74 of 1983's Section 20(4) forbids adoptive parents from wedding
their adopted children. This clause implies that any sexual interactions between such
persons constitute incest. However, there is no law against adopted children getting
married or having sex with their adoptive parents' relatives.
3.4 UNLAWFULNESS
Sexual activity within the prohibited ranges must be illegal, meaning there must be no
defense. Duress (a type of necessity) is an illustration of a defense that, in the instance
of incest, excludes unlawfulness. Although consent is not a defense to an incest
prosecution, it does not mean that the sexual activity will be criminalized as incest, as
opposed to rape, which would be committed if the woman had not given her consent 85.
It is suggested that sexual activity between an adult and a child under the age of sixteen
who is connected to the adult within the banned degrees should never be prosecuted as
incest, despite the fact that this issue has rarely been brought up. The legal system
recognizes that permission to sexual activity given by a girl under the age of twelve is
inadmissible in any case, whereas male partners who give consent to sexual activity to
a girl between the ages of twelve and sixteen are still subject to criminal prosecution 86.
84
85
ibid
86
ibid
29
Rape charges should be brought against the male participant in "consensual"
incestuous sexual activity with a girl under the age of twelve. or statutory rape should be
preferred if the girl is between the ages of twelve and sixteen 87.
Whenever there is any uncertainty as to whether the sexual activity was actually
voluntary, whether because of the age of the female party or for any other reason, it will
be contended that it would be proper and just for an incestuous male partner to be
prosecuted with rape. It would be more accurate to describe such behavior as rape
rather than incest because it would represent the true nature and gravity of the offense.
A conviction for incest would still be conceivable even if lack of consent could not be
shown beyond reasonable doubt, but sexual activity within the banned degrees might 88.
It is possible for someone accused of rape to be found guilty of incest, but the reverse is
not possible since a court would not contemplate convicting someone of a crime that is
more serious than the one they have been accused of. This means that even if the
evidence supports a conviction of rape, a court cannot find an accused person guilty of
it if the only charge against them is incest 89. A charge of rape and incest should always
be filed by the state when warranted. The peculiar case law that supports the idea that
the male partner of an incestuous sexual connection with a girl under sixteen can be
found guilty of incest instead of rape may be explained by the charge sheet's inept
preparation90.
It follows that it would be desirable to only charge incest in situations where both
individuals are related within the banned degrees and are at least sixteen years old. It is
necessary to determine whether both family members actually consented, even though
they are legally capable of giving a legitimate consent 91. Rather than being classified as
intercourse within the restricted degrees, it's possible that much of the behavior
currently punished as incest could really fall under the purview of the crime of rape. The
87
ibid
88
89
90
91
ibid
30
background of the South African Law Commission's revision of the concept of rape
makes this argument much more persuasive.92
3.5 INTENT
Common law incest is a crime that includes the element of intent. Not only must both
parties intend to engage in sexual activity, but they also need to be aware that their
degree of blood, marital, or adoptive relationship is within the boundaries of what is
prohibited. Criminal culpability is excluded when there is ignorance or error concerning
the relationships that gave rise to the restriction, even though it is absurd 93.
3.6 CONCLUSION
The law governing incest in south Africa provides for a comprehensive definition of the
crime under section 12 of the Criminal Law (sexual offences act and related matters)
amendment act 2007, this is alluded by the fact that it has encompassed almost every
form of family relationship, that is through marriage; affinity, expressing defining
ascending and descending blood lines Blood relations; consanguinity, adoptive
relationships as well.
However, in as much as the law has alluded to the above mentioned, giving regard to
affinity, the fact that through section 3 (6) of Customary Marriages Act 120 of 1998 the
prohibition of customary marriages between persons on account of their relationship by
blood or affinity is decided by customary law, demonstrates that where in some cultures
it is accepted for affinity relationships to wed, this can cause controversy among the
populace.
This chapter has endeavored to elucidate on the effectiveness of the law of incest in
south Africa, it has analyzed the definition of incest provided by south African law and
has thus shed light on the prohibited degrees. It has also given a brief back ground of
the law of incest in south Africa.
92
93
31
CHAPTER FOUR
32
COMPARISONS BETWEEN THE LAW ON INCEST IN ZAMBIA AND SOUTH
AFRICA.
4.0 INTRODUCTION
Incest is forbidden and is frequently referred to as a "universal" taboo. In fact, almost all
societies throughout history had forbidden intrafamilial marriage or at least some type of
intrafamilial sexual interactions. Judges, lawmakers, anthropologists, philosophers, and
legal pundits have all offered justifications for the ban. Genetic concerns stemming from
the possibility that consanguineous couplings can result in deformed children, protection
of the family as a whole by avoiding intrafamily sexual rivalries and jealousies, and
adherence to religious tenets are the most obvious and typical examples of these.
Incest is a common problem among many jurisdictions around the world and thus every
jurisdiction has different laws pertaining to the act of incest. Therefore, this chapter is
aimed at comparing and contrasting the law on incest in the Zambian jurisdiction to the
law pertaining to incest in South Africa.
4.1 LEGAL FRAMEWORK OF THE LAW ON INCEST IN ZAMBIA AND SOUTH

AFRICA.
Comparative research aids in developing a thorough and analytical approach to

applying legal mind. It aids in differentiating the implementation of the law according to
place and culture. A focus on such comparisons also aids in developing new policies
with greater scope and effectiveness.
The law in both jurisdictions define the crime of incest and sets out its elements,
however, these definitions and elements are not the same;
the Zambian law, as per the Penal code under section 159 94 of the Zambian law
stretches out carnal knowledge as the main element of the crime of incest, it falls short
from other sexual activities, which individuals with a certain degree of relation can
engage in. As opposed to the south African law, the definition of incest does not only
94
Act No.2 of 2005
33
include sexual intercourse or carnal knowledge but also the prohibition of marriage
between family members related within the prohibited degrees of consanguinity and
affinity and adoptive relationships as well.
The definition of incest in the South African law though seemingly more comprehensive
than the Zambia law, is not comprehensive enough. Both the Zambian and South
African law on incest do not expressly set out other forms of sexual activities other than
sexual intercourse or carnal knowledge that individuals with a certain level of relation
can engage in.
4.1.1 Elements
In terms of the elements of the act of incest, the main element given in the Zambian law,
Penal code Act No.15 of 2005 is carnal knowledge. Carnal knowledge is the act of
having sexual intercourse between a man and a woman, whereas in the South African
law, there is an aspect of unlawfulness. Unlawfulness entails that sexual activity within
the prohibited ranges must be illegal, meaning there must be no defense. Duress (a
type of necessity) is an illustration of a defense that, in the instance of incest, excludes
unlawfulness. Although consent is not a defense to an incest prosecution, it does mean
that the sexual activity will be criminalized as incest, as opposed to rape, which would
be committed if the woman had not given her consent 95. Despite the fact that this topic
has rarely been raised, it is recommended that sexual conduct between an adult and a
child under the age of sixteen who is related to the adult within the prohibited degrees
never be prosecuted as incest. While male partners who consent to sexual activity with
a child between the ages of twelve and sixteen are still liable to criminal prosecution, the
legal system understands that consent to sexual activity given by a girl under the age of
twelve is inadmissible in any circumstance. The male who engaged in "consensual"
incestuous sexual behavior with a girl under the age of twelve could face rape charges.
If the girl is between the ages of twelve and sixteen, it is preferable to use statutory rape
instead.
95
ibid
34
It can be argued that it would be appropriate and just for an incestuous male partner to
be prosecuted with rape whenever there is any doubt as to whether the sexual activity
was genuinely voluntary, whether due to the age of the female party or for any other
reason. In order to accurately convey the true nature and seriousness of the offense, it
would be preferable to refer to such activity as rape rather than incest.
Taking into consideration that sexual acts between same sex members are said to be
acts against the order of nature and the legal definition of incest in Zambia entails that
actual penetration of the vagina by the penis occurs (carnal knowledge), it means that
the law on incest in Zambia leaves out such type of sexual relations. However, the law
in Zambia prohibits homosexuality of any sort 96, thus, guilty parties would be charged for
that as opposed to incest, meaning any form of sexual activity between people of the
same sex is prohibited in Zambia under a different section of the Penal Code. It would
however be helpful to include this aspect within the prohibition of the offence of incest,
as it would clearly set out the prohibition of the offence.
South Africa on the other hand, permits homosexuality. However, the definition of incest
does not include same sex members, thus paving way for incestuous acts of the same
sex members of the family.
4.1.2 Intent
With the South African law, there is an aspect of intent as well as an element of the
offense of incest. This element entails that not only must both parties intend to engage
in sexual activity, but they also need to be aware that their degree of blood, marital, or
adoptive relationship is within the boundaries of what is prohibited. Criminal culpability is
excluded when there is ignorance or error concerning the relationship that gave rise to
the restriction, even though it is absurd 97. This element can arguably be the aspect of
mens rea of the crime of incest in South Africa.
96
Chapter 87 The Penal Code Act, section 155
97
35
In contrast with Zambia, most of the criminalized crimes have the aspect of mens rea
clearly outlined on the sections that prohibits the crime itself. For instance, under
chapter XIX of the Penal Code 98 a chapter relating to murder and manslaughter,
specifically under section 20499, this section provides for what is known as malice
aforethought which is the mens rea aspect of murder and manslaughter. However, the
law relating to incest in the penal code 100 is not clear on this aspect compared to the
South African law that has the aspect of mens rea clearly outlined in its elements of the
crime of incest
4.1.3 Prohibited Degrees
For incest to occur, in many jurisdictions there is an aspect of prohibited degrees, and
these prohibited degrees have a general definition and different definition according to
each jurisdiction, these prohibited degrees include;
1. Consanguinity
In general, consanguinity means relations by blood and can either be direct or indirect
blood line. In the Zambian law pertaining to incest, the prohibited degree of
consanguinity only relates to direct blood line. According to the definition of incest
provided under section 159 of the Penal code, 101 it is clearly noted that it is lineal
consanguinity with only a little incorporation of collateral, this is evident from the wording
of the provision, and as earlier stated, it only makes mention of;
a) grandmother;
b) mother;
c) sister;
d) daughter;
e) granddaughter;
f) aunt;
g) niece;
98
Chapter 87 of the Laws of Zambia
99
100
Chapter 87 of the Laws of Zambia
101
Act No. 15 of 2005
36
h) grandfather;
i) father;
j) brother;
k) son;
l) grandson;
m) uncle; and
n) nephew.
The provision does not include much on the collateral, this is due to the fact that it does
not make mention of cousin relationships but only makes mention of uncle, nephew,
aunt and niece, making sexual relations between cousins outside the definition of incest
provided by the Act.
In contrast with the south African law, the only blood relatives who are related in the
direct line are those who are each other's ascendants (ancestors) or descendants
(offspring), such as a father and daughter or a grandfather and granddaughter. All other
blood relatives, such as an uncle and a niece, siblings, or cousins, are collaterals. Blood
relatives who are ascendants and descendants in the direct line ad infinitum may not
marry, and if they have sexual relations with one another, they shall commit incest. This
also extents to collaterals, that is, cousins, uncle and niece, aunt and nephew
relationships102.
2. Affinity
Affinity in general means relations through marriage. With the South African law, there
is a prohibition of people who are related through marriage to marry and engage in
sexual activities, despite the fact that according to sections 2 (1) and 2 (2) of the
Recognition of Customary Marriages Act 120 of 1998, customary unions are supposedly
treated equally to civil unions for all purposes, it seems that only legally recognized civil
law marriages result in a connection of affinity. As stated in section 3(6) of the
aforementioned Act103, "the prohibition of a customary marriage between persons on
102
Thus this category includes brother and sister (eg R v Troskie 1920 AD 466); uncle and niece (but only where
they are related by blood - see RvD 19572 SA 74 (E)) or grandniece (eg R v M 1957 2 SA 73 (E)) and aunt and
nephew, but excludes first cousins
103
Customary Marriages Act 120 of 1998
37
account of their relationship by blood or affinity is decided by customary law," this is the
case104. Even if the marriage is terminated by death or divorce, relations by marriage in
the ascending and descending line cannot marry, and any sexual activity between them
is consequently incest.
In terms of marriage relations in the collateral line, there is significant ambiguity

regarding the legal situation. On the one hand, it is evident that the Roman-Dutch law
rule that forbade a man from being married to his (dead or divorced) wife's
consanguineous relatives, whom she would not have been allowed to wed had she
been a man (and vice versa), has been eliminated. On the other hand, if someone
engages in sexual activity with a collateral related via affinity before their marriage to
their spouse is dissolved due to death or divorce, that activity technically constitutes
incest.
In contrast with the Zambia law, there is no prohibition of sexual activities between
people related through marriage as they fall outside the scope of the definition provided
for under section 159 (1) and (2) respectively which states that;
“(1) Any male person who has carnal knowledge of a female person who is to that
person’s knowledge his grandmother, mother, sister, daughter, granddaughter, aunt, or
niece commits a felony and is liable, upon conviction, for a term of not less than twenty
years and may be liable to imprisonment for life
(2) Any female person who has carnal knowledge of a male person who is to that
person’s knowledge her grandfather, father, brother, son, grandson, uncle or nephew
commits a felony and is liable, upon conviction, for a term of not less than twenty years
and may be liable to imprisonment for life”105
Looking at these provisions, there is no mention of any relation of affinity.
4.1.4 Unlawfulness
Sexual intercourse within the prohibited degrees in the South African law must be
unlawful, i.e., there must be no room for justification. An example of such a defense
104
105
Act No. 15 of 2005
38
excluding unlawfulness applicable to incest would be duress (a form of necessity).
Consent is, however, not a defense to the charge of incest on the contrary, consent
indicates that the sexual intercourse will indeed be punishable as incest, as opposed to
rape.
In contrast with the Zambian law, it does not clearly outline whether the carnal
knowledge is unlawful or lawful regarding incest. With other sexual offenses such as
rape the law is clear that for the offense of rape to occur the carnal knowledge must be
unlawful however for incest the law is silent.
4.1.5 Other relations
Among prohibited degrees, there is an aspect of adoptive relationships. In the Zambian

law, we have the Children’s Code Act which prohibits certain individuals from adopting
children106 and therefore acts as a protective measure for children and reduces risks
that are sexual in nature. However, it does not provide for relations between adoptive
children and other members of the family, and whether sexual relations between them
would amount to incest. The law is silent on this aspect. It does however make mention
of half-brother and half-sister in section 162 of The Penal Code 107. It does not, however,
state that carnal knowledge of a parents and their adoptive children will amount to
incest.
In contrast to the South African law, such relationships have been clearly prohibited by
the Child Care Act 74 of 1983's Section 20(4) which forbids adoptive parents from
wedding their adopted children. This clause implies that any sexual interactions
between such persons constitute incest. However, there is no law against adopted
children getting married or having sex with their adoptive parents' relatives.
In Zambia for a person to be prosecuted for the offence of incest, there must be consent
obtained from the Director of Prosecution (DPP) known as sanction of the DPP. This
relates to the power of the DPP to issue written consent for the commencement or
106
The Children’s Code Act No. 12 of 2022, section 200 (3)
107
Penal code Act No.15 of 2005
39
continuance of prosecution for certain selected offenses, without which the trial is
rendered a nullity108. This is according to section 164109 which provides that;
“No prosecution for an offence under section one hundred and fifty-nine or one hundred
and sixty-one shall be commenced without the sanction of the Director of Public
Prosecutions.”
In contrast to the south African law, authorization by the DPP to prosecute the alleged
office is only required where the person who is alleged to have committed the offense is
a child. This is provided for by section 12(3) which states that;
“(3) (a) The institution of a prosecution of a person who is a child at the time of the
alleged commission of the offence referred to in subsection (1) must be authorized in
writing by the National Director of Public Prosecutions.
(b) The National Director of Public Prosecutions may not delegate his or her power to
decide whether a prosecution in terms of this section should be instituted or not” 110
4.2 CONCLUSION
This chapter has endeavored to allude to the similarities and differences within the law
governing incest in Zambia and South Africa. Among the similarities, it can be noted
from this chapter that in both jurisdictions, there is an element of sexual intercourse,
prohibited degrees, as well as involvement of the DPP when it comes to prosecution of
the offence of incest, however, the differences as noted from the chapter come in;
firstly, from the level of inclusion of the prohibited degrees, the South African law covers
more relations than the Zambian law on that aspect.
Secondly, the authorization of the DPP, for the South African law this only applies if the
offense of incest has been allegedly committed by a child, whilst in Zambia it is required
for the prosecution of any individual who has allegedly committed the offense of incest.
108
Liyongile Muzwando vs the People
109
Ibid
110
Criminal Law (Sexual offense and Related matters) Amendment Act, 2007
40
Thirdly, unlawfulness is another distinction that can be noted from this chapter, in South
African the sexual intercourse must be unlawful for the crime of incest to occur but in
Zambia it does not matter whether the intercourse was lawful or unlawful.
The comparative study discussed in this chapter shows that both the incest laws in
South Africa and Zambia are not comprehensive enough, although the law governing
incest in South Africa is more comprehensive than that of the law governing incest in
Zambia. It can therefore be concluded that in both jurisdictions there is need to
incorporate certain aspects such as:
(i) The inclusion of other sexual activities

(ii) Inclusion of other relations in the prohibited degrees.
CHAPTER FIVE
CONCLUSIONS AND RECOMMENDATIONS
5.0 INTRODUCTION
41
The aim of this chapter, like any other concluding chapter in research is to draw some
conclusions from the finding of the research and based on those conclusions provide
some pertinent recommendations on the topic at hand with the aim of changing the
situation prevailing at the moment.
This chapter consequently draws conclusions from the discussion on the current law on
incest in Zambia and South Africa and whether this law is comprehensive enough to be
in touch with reality in dealing with the offence of incest.
This chapter further makes recommendations as to how the situation in Zambia can
change with regard to the prevailing situation.
5.1 GENERAL CONCLUSIONS
5.1.1 Chapter One
Chapter one introduced the study, it brought out the background of the study, it
identified the statement of problem, and within the statement, it brought out aspects
such as the exclusion of other sexual relationships from the definition of incest provided
by the Penal Code - the exclusion of other relationships, such as cousins and adoptive
children. It also brought out the aim of the study which is to analyze the Law governing
incest in Zambia. The objectives that have been highlighted in chapter one have been
addressed in the substantive chapter of the study.
5.1.2 Chapter Two
Chapter two analyzed and highlighted the effectiveness of the law on incest in Zambia.
It highlighted the deficiencies and short comings pertaining to the definition provided in
the Penal code111. It concluded that the law governing incest in Zambia is not very
comprehensive because a lot of aspects have been left out from the elements as well
as the definition of the crime itself.
111
Act No 15 of 2005
42
5.1.3 Chapter Three
Chapter three analyzed the effectiveness of the law on incest in South Africa. It
concluded that the law governing incest in south Africa provides for a comprehensive
definition of the crime under section 12 of the Criminal Law (sexual offences act and
related matters) amendment act 2007 as it covers almost every form of family
relationship, that is, through marriage; affinity, expressing defining ascending and
descending blood lines Blood relations; consanguinity, adoptive relationships as well.
5.1.4 Chapter Four
Chapter four compared and contrasted the law on incest in South Africa and that of
Zambia. It alluded to the differences and the similarities of the definition of the crime of
incest provided in the respective statutes of both jurisdictions. The similarities where
that in both definitions, carnal knowledge is an element in the crime of incest, and the
differences where that the definition of incest provided by the Penal Code 112 only brings
out one element which is carnal knowledge while in the South African law, it brings out
intent and unlawfulness.
This Chapter also brought out the differences in prohibited degrees. The South African
law places emphasis on both affinity relationships and consanguinity relations, while the
Zambian law emphasis is only placed on consanguinity, thereby paving way for a
lacuna where a sexual activity has taken place between cousins.
5.2 RECOMMENDATIONS
As established, the definition of incest provided for by the Penal Code leaves room for
ambiguity. Thus, in order to seal the established loopholes and enhance the
effectiveness of the law on incest, the following recommendations have been made:
112
Act No15 of 2005
43
5.2.1 Expansion of The Definition of Incest
The definition of incest provided for in the Penal Code be amended to include all family
relations that are created, through consanguinity and affinity, that is relations of
consanguinity should extend to collateral blood lines of cousins. Relations by affinity
should also be added as well, that is all relations that are created through marriage.
This will improve the law governing incest as it will encompass all family relations in the
crime without leaving room for a lacuna.
5.2.2 Expansion of The Elements of Crime
The Penal Code should also expand on the elements of the crime itself to include other
sexual activities and not only be limited to carnal knowledge. At present, the definition
provided in the law has excluded any other form of sexual activity other than carnal
knowledge. These other sexual activities may include kissing, fondling of genitals, so on
and so forth. It should also include other elements such as malice and unlawfulness to
the carnal knowledge, this is because the law at present has left blanks on both these
aspects. It does not concern itself with the state of mind of the accused at the time of
the offense.
5.2.3 Inclusion of Adoptive Children
It is also recommended that the Penal Code extends the definition of incest to adoptive
children. Matters to do with children are matters that ought to be taken seriously and
strictly without room for ambiguity. At present the definition neither mentions adoptive
children nor are they included in any of the elements, which then has left a lacuna in the
law. Perpetrators of the offense who have allegedly committed the offense of incest with
their adoptive children indeed can walk free from prosecution because at present the
law does not include adoptive children in its definition of the offense.
5.2.4 Clear Illustration of Prohibited Degrees
44
Another recommendation is on the definition of the prohibited degrees. It should
express, mention and define the prohibited degrees and clearly illustrate the relations
that fall under each prohibited degree.
5.2.5 Flexibility of the Law on Incest
Another recommendation is that the Zambian law on incest should be made in such a
way that it is flexible to change according to the new trends in society. For instance,
there has been a lot of talk of same sex relationships in the country of recent, as such
the law on incest should also adapt to such changes and include the prohibition of same
sex relationships within the prohibited degrees.
5.2.6 Removal of Certain Procedural Requirements
Some of the procedural requirements should be removed as they would seem to

dissuade individuals from reporting the crime itself. For instance, under section 164 113,
there is a requirement to obtain consent from the DPP before prosecuting someone of
the crime of incest.
5.2.7 Awareness Campaigns
It is imperative to note that attention must be paid to the factors that currently prevent
women and girls in Zambia from lodging complaints in relation to sexual and domestic
violence. These factors include traditional social beliefs concerning the subordinate
status of women in family relationships as well as the lack of specialized training
amongst law enforcement personnel and members of the judiciary who frequently mirror
prevailing social stereotypes concerning sexual and domestic violence and, as a result,
often actively discourage women and girls from making complaints. The author would
like to suggest the development of broad-based public awareness campaigns
concerning sexual and domestic violence, if possible, in conjunction with local human
113
45
rights organizations. This will consequently enlighten most people as to what really
constitutes sexual violence and that they are at liberty to report such crimes to the
relevant authorities. It would also be important to enlighten these authorities on what
constitutes sexual violence so that they may be able to admit complaints brought before
them.
5.2.8 Provide Limitations on Cultural and Religious Practices on incest
In as much as the constitution gives us rights to freely practice our cultures and
religion,114 there ought to be limitations. The same way that the law, for instance,
prohibits child marriages through the Children’s Code Act 115, which thus serves as a
limitation for certain cultural practices that allow children to be married off, the law must
also expressly provide for and bar certain practices or rites that promote incest by
placing limitations on who is permitted to marry, not only on statutory marriages, but
also on traditional and religious marriages.
BIBLIOGRAPHY
Domestic Legislation
Constitution of Zambia Act No. 2 of 2016.
The Penal Code Act, Chapter 87 of the Laws of Zambia.
114
The Constitution of Zambia No. 2 of 2016, preamble.
115
The Children’s Code Act No. 12 of 2022, Section 18.
46
The Children’s Code Act No. 12 2022
The Marriage Act, Chapter 50 of the Laws of Zambia.
International Legislation
The Recognition of Customary Marriages Act 120 of 1998 of South Africa
Child Care Act 74 of 1983.
The Criminal Law (sexual offences act and related matters) amendment act 2007 of
South Africa.
Books
Holy Bible
Oxford Dictionary of Public Health, “2007, oxford press 2nd ed”
Collins English Dictionary
Human development, D. A. Louw, D. M. Van Ede, A. E. Louw, A. Botha, 1998, 2nd ed.
Green, Stuart P. (2019). Incest. In Larry Alexander & Kimberly Kessler Ferzan (eds.),
The Palgrave Handbook of Applied Ethics and the Criminal Law. Springer Verlag.
Cases
Moore v City of E. Cleveland, 431 US. 494, 503-04 (1977)
R v Troskie 1920 AD 466
R v D 19572 SA 74
47
R v M 1957 2 SA 73
Liyongile Muzwando v The People
Journal Articles
Sancak, Barış et al. “Mother–daughter incest: A brief review of literature and case
report.” Journal of Forensic Sciences 66 (2021): n. pag.
D. A. Batten, Incest—A Review of the Literature. Med. Sci. Law (1983) vol. 23, No. 4.
Faller, K. C. (1988). Child sexual abuse: An interdisciplinary manual for diagnosis, case
management, and treatment. Columbia University Press.
William N. Friedrich, Sexual victimization and sexual behavior in children: A review of

recent literature, Child Abuse & Neglect, Volume 17, Issue 1, 1993
Yildirim, Ali, Erdal Ozer, Hasan Bozkurt, Sait Ozsoy, Ozgur Enginyurt, Durmus
Evcuman, Riza Yilmaz, and Yunus E. Kuyucu: Evaluation of social and demographic
characteristics of incest cases in a university hospital in Turkey 2014.
D. WALTERS, PHYSICAL AND SEXUAL ABUSE OF CHILDREN: CAUSES AND

TREATMENT 112 (1975)
C. Peter and S. Radha, A need to Act: Incest as a crime given low priority- a review with
India. 2021.
Milton SA Criminal Law & Procedure: Common Law Crimes 237 and the Roman-Dutch
authorities quoted there.
International publications
N. Mary, “A case study in determining the optimal use of criminal sanction” 2003
Charles Mubambe, “Droits-zambia: Un jugement clement provoque. I indignation des

defenseurs des droits de I Homme”, International Press Service, 9 january 2001.
48
“Seven year old girl contracts syphilis” The LRF News, No. 25, march 2001.
Government Documents and reports
Times of Zambia, “unreported sexual offenses worrying women’s law body”, 3 may
2001
Websites
https://dictionary.thelaw.com
https://www.merriam-webster.com
https://journals.sagepub.com/doi/10.1177/000841748104800307.
https://www.semanticscholar.org/paper/Mother%E2%80%93daughter-incest%3A-A-
brief-review-of-and-case-Sancak-
https://www.worldcat.org/title/human-development/oclc/46643473
https://journals.sagepub.com/doi/10.2466/pr0.1981.49.1.267
https://doi.org/10.1177/002580248302300404
https://philpapers.org/rec/GREI-61
https://psycnet.apa.org/record/1988-97256-000
https://wiredspace.wits.ac.za/server/api/core/bitstreams/b1f82245-7e02-4c34-9dfd-
af3d385bf090/content
https://www.sciencedirect.com/science/article/abs/pii/014521349390008S
https://pedsinreview.aappublications.org/content/2/2/51
https://scholar.google.com/scholar_lookup?
hl=en&volume=69&publication_year=1976&pages=848-850&author=R.B.
+Weeks&title=The+sexually+exploited+child
49
https://journals.healio.com/doi/abs/10.3928/0090-4481-19790501-06 https://
www.britannica.com/topic/Protestantism
https://www.childwelfare.gov/topics/adoption/intro/
https://familypedia.fandom.com/wiki/Prohibited_degree_of_kinship
https://reproductive-health-journal.biomedcentral.com/articles/10.1186/1742-4755-6-17
http://www.zambiapolice.gov.zm/index.php/112-news/390-gbv-data-2021#:~:text=A
%20total%20of%202%2C238%20cases,of%20all%20the%20reported%20cases.
collinsdictionary.com - Incest definition and meaning
Thefreedictionary.com - Consanguinity legal definition of consanguinity - Affinity legal

definition
Tasdemir/df8eb63a0bcc06323c57ee2d7a538e88417ab7e5#citing-papers
50

DISSERTATION - Michelle Mumba - LLB-2022

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

DISSERTATION - Michelle Mumba - LLB-2022

Uploaded by

Copyright:

Available Formats

SCHOOL OF LAW

THE EFFICACY OF THE LAW ON INCEST IN ZAMBIA: A COMPARATIVE STUDY

An obligatory essay submitted to the University of Lusaka in partial fulfillment of the

I, KAWAMA MWAMFULI, do recommend that this dissertation titled “THE EFFICACY OF

To my undergraduate research supervisor, Ms Kawama Mwamfuli, who made herself available

To my friends, Kapakala Changwe and Nkandu Mwanza, I acknowledge my indebtedness and

YWCA – Young Women Christian Association

In Zambia, incest is prohibited under Chapter 87 of the Laws of Zambia commonly

In analyzing the law on incest in SA in comparison to the law on incest in Zambia, it is

1.1 BACKGROUND OF STUDY

1.2 STATEMENT OF THE PROBLEM

1.2 OBJECTIVES OF THE STUDY

● To analyze how effective the law of incest is in Zambia;

● To analyze the effectiveness of the law of incest in South Africa; and

1.4 RESEARCH QUESTIONS

This study is based on the legal questions below:

2) How effective the law governing incest is in South Africa; and

1.5 SIGNIFICANCE OF THE STUDY

1.6 SCOPE OF STUDY

1.7 DEFINITION OF TERMS

1.8 LITERATURE REVIEW

1.9.1 Research approach

1.9.2 Data collection technique(s)

1.9.4 Data analysis

1.10 ETHICAL CONSIDERATIONS

EFFECTIVENESS OF THE LAW ON INCEST IN ZAMBIA

2.1 DEFICIENCIES IN THE LAW GOVERNING INCEST

Section 160 provides:

Section 161 provides:

Section 162 provides:

Section 163 provides:

Section 164 provides:

2.3 PROHIBITED DEGREES

This refers to a degree of affinity (relation by marriage or sexual relationship) or

Affinity refers to a person's connection to a spouse's blood relatives as a result of their

2.3.3 Other relationships

(d) a person convicted of an offence and sentenced to a term of imprisonment

2.4 CUSTOMS AND BELIEFS

2.5 OTHER REASONS WHY CERTAIN ACTS OF INCEST GO UNPUNISHED

2.5.1 Social and Procedural Obstacles

2.5.2 Customary Law

Incest is an inescapable problem in Zambia, this is according to the research conducted

THE EFFECTIVENESS OF THE LAW ON INCEST IN SOUTH AFRICA

3.1 ORIGIN OF THE LAW

Intermarriage relationships or relationships with close relatives was disapproved from

3.1.1 Influences of the church: medieval Europe

3.2 CURRENT LAW ON INCEST

(2) For the purposes of subsection (1)—

3.3 PROHIBITED DEGREES OF THE OFFENCE

There is a consanguinity or blood link between individuals who share an ancestor.

Even if the marriage is terminated by death or divorce, relations by marriage in the

In terms of marriage relations in the collateral line, there is significant ambiguity

It could be argued, nevertheless, that such behavior is more appropriately classified as

3.3.3 Adoptive relations

4.1 LEGAL FRAMEWORK OF THE LAW ON INCEST IN ZAMBIA AND SOUTH

Comparative research aids in developing a thorough and analytical approach to

4.1.3 Prohibited Degrees

In terms of marriage relations in the collateral line, there is significant ambiguity

Looking at these provisions, there is no mention of any relation of affinity.

4.1.5 Other relations

Among prohibited degrees, there is an aspect of adoptive relationships. In the Zambian

(i) The inclusion of other sexual activities

CONCLUSIONS AND RECOMMENDATIONS

5.1 GENERAL CONCLUSIONS