THE legal age of sexual consent came under spotlight in the High Court with two women seeking to nullify the age of consent set at 16 arguing it violates the right and protection of girls in terms of the Constitution, which sets the legal age of marriage at 18.
The discrepancy between the age of consent and the legal age of marriage has stimulated debate within the country’s legal fraternity and women’s organisations resulting in some calling for re-alignment of the laws providing for the age of sexual consent with the Constitution’s legal age of marriage.
However, there is no global uniformity as to what is the age benchmark for sexual consent as countries vary on the basis of their social and cultural standing. Zimbabwe share the same age of sexual consent with South Africa, the United States of America and 60 other African and European countries.
The age of consent was moved upward from 12 to 16 in the 19th century and early in the 20th century as part of efforts to end child prostitution in various Anglophone countries.
But Diana Kawenda and Loveness Mudzuru are now seeking an order that declares that not only is the 16 years as the age of sexual consent unconstitutional, but that age itself has unconstitutional oppressive outcomes against girls.
Ms Mudzuru is a former child bride whose successful court case led the Constitutional Court to outlaw child marriage in January 2016. In order to get the case into court for a legal ruling, the two women sued the ministers connected with enforcement or policy on the age of consent.
They thus had to sue in their official capacities the Minister of Justice, Legal and Parliamentary Affairs, Minister of Health and Child Care and the Attorney-General.
Legal counsel for the parties last week on Thursday argued the matter before Justice Owen Tagu who heard submissions from both parties and reserved his ruling.
The two women argued that the age of consent at 16 was indirectly discriminatory towards girls based on gender, as only girls suffer the consequences of pregnancy and related social, economic and health implications.
The current age of consent, they argued, was discriminatory towards girls as it disproportionately compromised their health, education, human dignity and best interest’s rights.”
They also argued that the present laws discriminated against teenagers aged 16 and 17. Section 70 of the Criminal Code set the age of sexual consent at 16, which they argued failed to grant the same protection to minors aged 16 and 17 that it granted to children under 16.
The General Laws Amendment Act, 2016 aggravated this age discrimination by creating a provision that subjected those aged 16 and 17 to criminal prosecution for engaging in sexual activity with children under the age of 16, while children under the age 16 are virtually free from criminal prosecution for engaging in the same activity.
The differences in law could expose those aged 16 and 17 to sexual exploitation while raising the aged of consent to 18 would at least deter men, especially older men, from engaging in relationship with girls under the age of 18, the two argued.
In their counter argument, the ministers, represented by the Attorney-General’s Civil Division, opposed the application.
It was argued that the criminal law takes into account the best interests of the child because a higher age of consent to sexual activity does not actually lead to a delayed sexual debut. Other jurisdictions like South Africa and the United Kingdom, whose laws define a child as any person below the age of 16 years, also subscribe to age of consent of 16 years. But present laws in Zimbabwe did protect even 15 and 17-year-olds by enforcing a delay to when they could legally make their own choices.
Mudzuru and one Ruvimbo Tsopodzi state they were 16-year-old girls when they were forced to marry.
At 19 and 18, they approached the Constitutional Court to seek justice for themselves and for other girls who were usually denied the right to decide when and whom to marry.
In the end they succeeded with the Constitutional Court declaring that no girl or boy may enter into marriage — including marriages recognised in traditional or customary law — before they were 18.
Their contention was that the law must be unequivocal and the court ruled that child marriage was illegal and unacceptable.
Their courageous legal challenge made waves not only in Zimbabwe but across the globe. The ground breaking judgment was handed in January 2016 by Chief Justice Luke Malaba, then deputy Chief Justice.