In May 2022, the Constitutional Court through its judgment effectively changed the age of sexual consent from 16 years to 18 years. This was made possible through the landmark decision in Kwenda v Minister of Justice, Legal and Parliamentary Affairs & Others CCZ 3/22. The judgment set aside the High Court decision that had dismissed the matter and had retained the age of consent at 16 years.
The statute which stipulated the age of sexual consent was the Criminal Law (Codification and Reform) Act [Chapter 9:23] particularly sections 61, 70, 76, 83 and 86 which pegged the age of sexual consent at 16 years. In the appeal at the Constitutional Court, the Code was measured against the Constitution of Zimbabwe 2013, which is the supreme law of the land and it was found in contravention of section 81 (1) (e) of the Constitution which dictates that all children must be protected from sexual exploitation. The Constitution in section 81 defines a child as any person who is under the age of 18 years yet the Code afforded protection from sexual exploitation to only children under the age of 16 thereby excluding them from the enjoyment of this fundamental right. The Code had defences which further perpetuated sexual exploitation since it was a defence in this Code that the person is married to the child. Because of this clear contravention, the age of sexual consent was raised from 16 years to 18 years in order to align with the constitutional dictates to protect all children from sexual exploitation.
Although the decision pertains to all children whether boy or girl, it has been treated as a victory by and for women rights groups because it is young girls that have been mostly victims to sexual exploitation by older men due to the gendered nature of society.
Despite being widely accepted by many, members of society have registered concerns on the negative effects that they perceive it will have. One of the issues is that it may leave the girl child vulnerable if she gets pregnant but is disallowed from marrying and that it may result in the children who engage in sexual activities being afraid of accessing sexual reproductive health care as the organisations dealing with sexual reproductive health may fear persecution that they are encouraging sexual conduct among children if they assist children who are not supposed to be engaging in sexual activities in any case. Another concern has been how child-upon-child sexual exploitation will be handled since a 17 year old and a 12 year old are all regarded as children in need of protection. The legislature will have to enact laws that specifically deal with such concerns so that the spirit of the decision will be carried through for the benefit of all children. Perhaps the decision will serve as a cautionary tale that the once “sweet 16” is not so sweet after all.
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So insightful. Thank you