15/01/2024
In Zimbabwe, before the coming in of Statutory Instrument No.2 of the 2024, the age of legal consent was 16 years. Section 61 as read with section 70 of the Criminal Code defined a "young person" as a person below the age of 16. However, in May 2022, the Constitutional Court in the case of Kawenda v Minister of Justice, Legal and Parliamentary affairs and Others, (hereinafter the Kawenda case) declared that section 61 and 70 of the Criminal Law (Codification and Reform Act) (hereinafter the Criminal Code), as well as many other incidental provisions, were inconsistent with section 81 of the Constitution of Zimbabwe and therefore invalid on the basis of Constitutional Supremacy. In the case, Justice Makarau criticized the court a quo’s excessive focus on the legal age of consent instead of focusing on the issue that had been put before it, which was the constitutionality of the law which sought to protect children from sexual exploitation.
It is important to note that the Respondents in the case, among other arguments, raised the issue of the potential criminalisation and therefore hindrance of children aged 16-18 from exploring their sexuality, if the court were to declare the provisions unconstitutional. Their argument was that the definition of young persons as it stood was by design to afford the children a measure of choice and thereby upholding their right to personal dignity. Thus allowing them to explore their sexuality.
The court went on to set aside the definition of a young person in section 61 of the Criminal Code and suspended a declaration of invalidity for a period of 12 months to allow the legislature to amend the law. However, the law was not amended till the declaration lapsed in May 2023.
The Kawenda case called into question the Constitutionality of the law that sought to protect children from sexual exploitation. Based on the reasoning of the court, which in itself was based on an interpretation of the Constitution, the case had the effect of seeking to align the Criminal code with the Constitution, which stipulates that a child is anyone under the age of 18. Thus, the court merely pointed the law makers in the direction of providing adequate protection to children as defined in the constitution, which in itself is in line with, International principles and the Rights of Children.
The legislature’s failure to align the Criminal code with the Constitution created a grey area in the law. This grey area created leeway for anyone to have consensual extra marital sexual in*******se and indecent acts with persons above the age of 16 and below the age of 18 without any criminal liability. This left the children in that age gap without the protection guaranteed by the Constitution.This was evident in the recent automatic review case of State v Gumbo where the courts hands were tied in that regard, leading to acquittal of the accused in that matter.
The enactment was thus promulgated as a means to address inconsistency between the Constitution and the Criminal Code ultimately protecting ALL children from sexual exploitation. This alignment had the effect of somewhat (emphasis on somewhat) raising the legal age of consent from 16 years to 18 years. The Statutory Instrument amended section 61 and repealed section 70 of the Criminal Code ultimately enacting a new section which substitutes Section 70.
The new provisions like its predecessors criminalise the extra marital sexual in*******se or performance of indecent acts with a young persons. However, the provisions redefine a “young person” as anyone below the age of 18 and ultimately leave any offender guilty of sexual in*******se or performing indecent acts with young persons, and liable to a fine not exceeding level 12 or imprisonment for a period not exceeding ten years or both. This offers protection to all children and not just those under 16.
Also, in response to the arguments canvassed in the Kawenda case, the amendment inserted a clause which protects young persons who have sexual in*******se with each other whom their difference of age is not more than 3 years, from prosecution, unless the Prosecutor-General, after considering a report by a probation officer, issued in terms of the Children’s Act [Chapter 05:06], has authorised the charge. Adults who are not more than three years older than a young person, who have sexual in*******se with said young person are also protected in that regard.
Ultimately, in conclusion, the pronouncement of the unconstitutionality of section 61 and 70 of the Criminal Law (Codification and Reform) Act in the Kawenda case led to the need for the legislature to amend the provisions of the Criminal Code so as to align them with the Constitution. The legislature’s failure to align the provisions on time thus created a grey area in the law which stripped children of their protection from sexual exploitation. However, S.I. 02 of 2024 therefore came in to align the law with the Constitution and thus effectively restoring the protection of children from sexual exploitation as guaranteed by the Constitution. This alignment of the law with the Constitution by the Statutory Instrument, thus raised the legal age of consent, to some extent (note the emphasis) from 16 years to 18 years.
