On May 24, 2022 the Constitutional Court of Zimbabwe in Kawenda v Minister of Justice, Legal and Parliamentary Affairs and Others handed down a landmark ruling on the age of consent.
The court held that 16 years as age of consent was unconstitutional and ordered the legislature (Parliament) to enact a legal provision which gives effect to section 18 of the constitution.
What should be noted in this landmark ruling is that the court never raised the age of consent to 18 years, but the judicature was just performing its constitutional mandate of interpreting the law in accordance with the constitution.
Section 81(1) of the Constitution of Zimbabwe defines a child as a boy or girl who is under the age of 18 years.
Statutory provisions for age of consent are aimed to protect children from sexual predators and exploitation.
The constitution unequivocally provides that any legal provision, custom and practice which defines a child contrary to the provisions of the supreme law of the land was not compatible with the tenor and spirit and dictates of constitutionalism in Zimbabwe.
In layman’s language, the consequences of this ruling are that having intercourse with a person under the age of 18 is now a criminal offence.
In trying to implement the apex court ruling, the legislature should be extra vigilant and guard against jurisprudential retrogression in the discourse of access to sexual reproductive health rights by young people in Zimbabwe.
In doing so there are chances that the discourse of access to sexual reproductive health rights which Zimbabwe was now adopting can be curtailed and derailed if the issue of age of consent is not carefully tackled and implemented.
In South Africa the Criminal Law (Sexual offences and Related Matters) Amendment Act of 2007 pegged the age of consent for both boys and girls at 16 years. However, the South African legislation makes provisions of some exceptions, for instance if both partners are between the ages of 12 and 16 they cannot be criminally charged.
In Namibia, Botswana and Senegal a person can consent to sex from the age of 16.
In the United Kingdom age of consent is 16 years.
However, after this well celebrated constitutional court ruling, the epistemological questions still remain. If the legislature put age of consent to 18 are health centres going to provide services, such as contraception and deliveries, for children below the age of 18 without enquiring first the whereabouts of sexual predators and exploiters? Are young people going to understand and help the state in finding the sexual predators? Given that scenario are young people going to feel safe in accessing sexual reproductive health from government health centres? What might be the possible avenue young people will take for access to sexual reproductive health services?
In complying with this landmark ruling our legislature should craft a statutory provision of age of consent with all those questions in mind, or Zimbabwe will risk retrogressing in its fight against sexually transmitted infections and access to sexual reproductive health services which can worsen the problem of young women.
Zimbabwe as a democratic society, should envisage statutory enactments which protect our young people from sexual predators and at the same time promoting quality access to sexual reproductive health rights of young people.
According to the Zimbabwe National Family Planning Council (ZNFPC) and world Health Organisation (WHO), early sexual debut (sexual intercourse before the age of 16) is one of the major challenges in reproductive health programming in Zimbabwe.
Research by the International Multidisciplinary Research Journal of 2012, titled “Factors underlying early sexual initiation among adolescence: A case study of Mbare, District, Harare, Zimbabwe, pointed out that poverty and need of material possession among adolescence girls are major contributory factors to early sexual debut among adolescence in Mbare.
The studies by UNFPA in 2003 and UNICEF in 2001 revealed that that poverty is increasing risks of early sexual debut and sex work in Zimbabwe.
According to the Zimbabwe Demographic Health Survey nearly 40% of girls and 24% of boys are sexual active before they reach the age of 18.
A report by the Ministry of Health and Child Care, United Nations Population Fund(UNFPA), and Zimbabwe National Family Planning Council (ZNFPC), provided that 48% of adolescents have unplanned pregnancies in Zimbabwe per year.
The 2015 Zimbabwe Demographic Health Survey Report stipulated that over 51% of girls below the age of 18 years access contraceptives from private pharmacies.
With all this empirical data and information at hand the constitutional provision of 18 years as age of consent might have a deleterious effect on access to sexual reproductive health rights of young people in Zimbabwe if not carefully crafted and put into effect through legislation.
Our legislature when enacting such type of legislation should not be informed by emotions, grandstanding and trying to win favours from other sectors of the communities, but they must be informed by the current legal, economic and demographic health exigencies obtaining on the ground.
Whether people want it or not the current obtaining situation on the ground clearly shows that young people are having sex. Our legal framework should be alive to that fact.
In Africa, South Africa and Nigeria decided to be alive to the fact that young people are having sex at a very tender age, then the solution was not to impose criminal sanction on sex, but they have so far adopted policies which make it easier for adolescents to access contraceptives.
In Nigeria there are government adolescent-friendly clinics for young people to access sexual reproductive health services.
The case of Nigeria and South Africa is a clear indication and lesson which Zimbabwe can take, that the issue of sexual reproductive health rights should not be a moral discourse but a scientific discourse which should be used in democratising our laws for the full realisation of sexual reproductive health rights of young people in Zimbabwe.
From the social dimension of justice worldview, I don’t think putting age of consent to 18 years will stop young people in Zimbabwe from having sex. The reason why a progressive jurisdiction such as South Africa allows young people as young as 12 years to access contraception without parental consent is a clear admission that young people are having sex and the need to protect them from consequences of sex. It’s not a moral issue, but a practical and scientific issue.
In trying to comply with the constitutional court order, the legislature should be alive to the various vagaries which can be associated with that constitutional alignment.
There is high probability of unsafe abortions and surge of young people flooding our health care facilities for post-abortion care, because young people will be afraid of being asked numerous questions on what really happened to them since having sex with a person below the age of 18 will be a criminal offence.
Since people will know that having sex with a person younger than 18 years can attract a criminal penalty a lot of young people will resort to clandestine means of termination of pregnancy, and in the process the bodily autonomy and integrity of young women in Zimbabwe will be impaired.
Adolescent girls with sexually transmitted infection are likely to resort to the traditional and unsafe methods of curing their STIs fearing to be subjected to possible physiological and mental and emotional torture at health centres for having sex before the age of 18.
Therefore in putting into effect the Constitutional Court ruling on the age of consent the legislature should make legal provision in a manner which is alive to the fact that although the law seeks to protect our young people from sex predators and exploiters, the law should provide conducive legal environment of access to sexual reproductive health rights by young people.
- Zororai Nkomo is a Zimbabwean journalist, lawyer and social justice advocate. He writes in his personal capacity and can be contacted on firstname.lastname@example.org