Source: MPs at sixes and sevens over age of consent | The Herald March 11, 2019
Phyliss Kachere Deputy News Editor
Over the past few days Zimbabwe’s social media has been on fire.
Debate has been raging on various social media platforms after news filtered from a workshop held last week by the Parliamentary Portfolio Committee on Health and Child Care in Kadoma that during debate, parliamentarians were pushing for the reduction of the age of sexual consent from 16 to 12 years.
Age of sexual consent is the stage at which an individual is considered legally old enough to consent to participation in sexual activity.
During the Eighth Parliament some legislators that included former member Ms Jessie Majome, Mr Innocent Gonese and Ms Priscilla Misihairabwi, during the Committee Stage of the Criminal Codification Reform Amendment Bill fought for the consent age to be raised from 14 to 18, before it was eventually set at 16 years.
Section 61 of Criminal Law Codification & Reform Act, unlawful sexual conduct means any act, the commission of which constitutes the crime of rape, aggravated indecent assault, indecent assault, sexual intercourse, or performing an indecent act with a young person or sodomy. The young person is described as anyone under the age of 16.
While Section 70 of the Criminal Code talks of sexual intercourse or performing indecent acts with young persons and maintains that a young person is a person below 16 years of age in relation to the crime of rape, Section 78 of the Constitution states 18 years as the age at which a person has the right to start a family.
Section 22(1) of the Marriage Act allows girls to marry at 16, and legal experts say this predates the Constitution which defines a child as anyone under 18. The question then becomes, is Zimbabwe marrying off its children?
According to the Zimbabwe National Statistics Agency’s (ZimStats) Multiple Indicator Cluster Survey (MICS) 2014:
“Child marriage (before 18 years) is deteriorating although ‘very early’ child marriage (before 15 years) is improving (getting lower). The MICS 2014 data show that one in three women married before age 18, and also depict huge differences between urban (18 percent) and rural (43 percent) areas.”
Section 22(1) of the Marriage Act states that no girl under the age of 16 years and no boy under the age of 18 years shall contract a valid marriage without the consent of the minister.
This was challenged by Loveness Mudzuru and Ruvimbo Tsopodzi, who complained that the provision violated the Constitution by setting the age of marriage for girls below the age permitted by the Constitution which is 18 years.
The Africa Legal Information Institute said the applicants, young women of 18 and 19 years of age, applied to the Constitutional Court for a declaratory order that the effect of s 78(1), as read with s 81(1), of the Constitution of Zimbabwe 2013 is to set 18 as the minimum age for marriage; that no person under that age may enter a marriage union; and that the Customary Marriages Act [Chapter 5:07] is unconstitutional, in that it does not provide for a minimum age limit of 18 years.
The Constitutional Court granted the order but to date, the Marriages Act is yet to be amended to reflect that.
With such contradictions in the law, shouldn’t parliamentarians be seized with harmonising and synchorinising such?
Outraged by suggestions that the committee’s members were pushing for the reduction of the 16 years set during the Eighth Parliament and hailed as a milestone in the fight against child marriages, angry citizens took to social media platforms Twitter and Facebook to vent their anger, calling them paedophiles for harbouring such thoughts.
“There must be perverts in this committee. I am disgusted. Is this how we are using taxpayers’ funds to come up with such warped policies?”
@Gracia Gwati voiced her concern:
“You mean grown up men & women spent taxpayers’ money for lunch & all to propose such bilious nonsense. Aewa, they need to be secluded from society, they exhibit criminal behaviour.”
@Taasha wrote: “As a young lady who is proudly Zimbabwean, I am greatly disappointed and disheartened by this matter. This is going to cause a lot of problems for us. I am thinking of a 12-year-old getting raped. When she/he is taken to court and his/her rapist’s hides behind, ‘he/she said yes’’.”
Prominent women’s rights campaigner Ms Everjoice Win could not hide her disgust:
“My question is: So all these years of advocacy against child marriage have led us here? What did I miss? Help me understand. So they have been seemingly condemning child marriage, only for them to end up at ‘ok we will just f*** the little kids but not marry them?”
The committee’s chairperson, Dr Ruth Labode, confirmed that the issue of the reduction of the age of consent from 16 to 12 had come out in deliberations following presentations by the Ministry of Health and Child Welfare on amendments made to the Public Health Act.
She said she was more concerned about young persons’ access to reproductive health services than anything else.
She added it had come to her committee’s attention that the seeming contradictions between the age of sexual consent set at 16 and the legal majority age of 18 presented challenges in the administration of the amended Public Health Act.
“For example, we know that young persons under the age of 16 are having sex and may get a sexually transmitted infections. This will force them to go to the clinic or hospital to seek treatment. Provisions of the amended Public Health Act will not allow a minor to be treated without the consent of the parent or guardian. Will that child get their parent to accompany them to the hospital? Is that practical? Do we have a clause in the amended Act to allow for their treatment?” queried Dr Labode.
After all the lobbying and campaigns done as the nation fights rampant child marriages, the question that Zimbabwe should be preoccupied with is how to synchronise.
Former Harare West legislator Ms Majome accused society of exposing children under the age of 18 to explicit sexual content only to turn back and accuse the same children of being delinquent.
“We have children getting sexual exposure through popular culture and the media. We accuse the young girls of engaging in sexual activity. But we are not doing anything about this exposure. Who is making these school girls pregnant? In most cases, it’s the adult men.
“Why not address that? The Constitution wants to serve the best interests of the child. Is lowering the age of consent in the best interest of the children?” said Ms Majome.
In Kenya the age of consent is 18 years. Shouldn’t we be looking at increasing our 16 to match the 18 years legal age of majority, instead of taking these five steps back by lowering it to 16 years?
South Africa is in a similar predicament with Zimbabwe.
In that country, a person is considered to be a child, when he or she is under the age of 18, however the Sexual Offences Act does allow consensual sex for persons 16 and older. This creates a problem where the parents of a child between 16 and 18 do not consent to their child having sex.