OPINION | How shocking negligence has cut Zimbabwe’s age of sexual consent to 13, and left children defenceless

Common Law with Mike Murenzvi

“The law has no compassion. And justice is administered without compassion.” ~ Christopher Darden

The government and the Parliament of Zimbabwe have exposed children aged between 12 and 17 years of age to sexual abuse without consequence. Predators can prey on these children and not be charged with a crime. This was with effect from 25 May 2023.

This has only recently come to the fore when a criminal review judgment was widely shared on social media in the case of Nkosilathi Gumbo. He had been previously charged, pleaded guilty, and sentenced for the crime of having extra-marital sexual intercourse with a young person. The review judgment noted that at the time of commission, this law had been effectively struck off the statutes.

The Gumbo case

Gumbo was charged with having sex with a minor on 29 May 2023. He pleaded guilty to the crime and was duly convicted and sentenced to 36 months imprisonment. Of the sentence, 18 months were suspended on condition of good behaviour. The remaining 18 months were suspended in favour of community service.

The case was later sent to the Bulawayo High Court in October 2023 for review. The judge, Justice Dube-Banda, sitting with Justice Kabasa, made a ruling that Gumbo had been charged, convicted, and sentenced under a non-existent law, and thus quashed the original ruling setting Gumbo free.

According to the judgement, HB 214/23 dated 19 October 2023, four sections of the Criminal Law (Codification and Reform) Act on sexual crimes against young persons were ruled unconstitutional by the Constitutional Court back in May 2022. As part of that ruling, the Government and Parliament were given 12 months from the date of the ruling to enact corrective legislation to align the sections accordingly with the Constitution. This was not done, and still hasn’t been done.

Given the set of facts, the judge had no choice but to quash the entire conviction as it was legally unjust.

The age of sexual consent case – Kawenda v Minister of Justice, Legal and Parliamentary Affairs & Others CCZ 3/22 (The Kawenda Case)

In November 2020, after having successfully challenged the law on child marriages and therefore forcing government to increase the minimum age of marriage to 18 years, Diana Kawenda and Loveness Mudzuru embarked on a new quest. This time it was to push for the protection from sexual exploitation of all children aged 16 and 17 by increasing the age of consent to 18.

Ms Kawenda and Ms Mudzuru were former child brides and teen parents during the subsistence of their marriages. They raised these challenges in the public interest to protect the rights of all children, so that these girls wouldn’t go through what they had experienced.

The initial challenge in the Harare High Court was dismissed in January 2021. They then appealed to the Constitutional Court. On 24 May 2022, the Constitutional Court granted the appeal in full to the following effect:

  1. The definition of “young person” in the Criminal Law Code is unconstitutional and is set aside.
  2. Sections 70, 76, 83, and 86 of the Criminal Law Code are unconstitutional and set aside.
  3. The ruling is suspended for 12 months to enable the Minister of Justice and the Attorney General to enact a law that protects ALL children from sexual exploitation. (The 12 months expired on 24 May 2023).

Legal watchdog, Veritas, summarised the legal provisions that were struck down as follows:

The definition of “young person” for the purposes of sexual consent was a boy or girl under the age of 16 years. There is a further stipulation that they must also be over the age of 12 years.

Section 70 (“Sexual intercourse or performing indecent acts with young persons”) made it a crime for anyone, whatever their age, to have extra-marital sexual intercourse in Zimbabwe with a young person or to commit indecent acts with a young person.

Under Section 76 (“Complicity in sexual crimes”) it was a crime for persons in control of premises to permit anyone to have extra-marital sexual intercourse or to commit indecent acts with a young person in those premises.

Section 83 (“Procuring”), which made it a crime to procure anyone for unlawful sexual activities, prescribes a higher sentence if the person procured is a young person.

Section 86 (“Permitting a young person to resort to place for purpose of engaging in unlawful sexual conduct”) made it a crime for the owner of a place to induce or allow young persons to be in the place for the purpose of engaging in unlawful sexual activities.

All these sections protected children under the age of 16 but they did nothing for youngsters between the ages of 16 and 18. Those youngsters were treated as adults by the Criminal Law Code whereas, according to section 81(1) of the Constitution, children are defined as boys or girls under the age of 18 years, and they have the right to be protected from sexual exploitation.

Gross negligence

It is gross negligence that the Minister of Justice did not cause a Bill to be crafted, debated, and enacted to remedy this unconstitutionality within the stipulated 12-month period. It is also an indictment on the 9th Parliament for not following up on a widely reported story. MPs failed to pressure Government to bring in the Bill, and neither did one of them craft a Private Members Bill as is happening with the Death Penalty Abolition.

The ball was dropped in so many ways and now the effect is plain for all to see. It is the children that suffer.

The striking down of those sections and subsequent failure, neglect, or refusal to align this law to the Constitution and protect all children, has now left them exposed to all manner of sexual predators. The absolute effect is that until the law is rectified, the age of sexual consent is now 13 years.

What to do

This is a matter of extreme urgency, and citizens and ALL legislators, regardless of political affiliation, should be banging down the door of the Minister of Justice to gazette the necessary Bill while Parliament is still in recess. Curing the Criminal Law Code of this grave anomaly is simple; just use the same wording that existed before and change references from 16 years to 18 years.

It really isn’t complicated, but the system has failed. Those who were elected to keep the system in check also failed. Now is the time to exercise responsible citizenship without hesitation. This cannot be allowed to stand. The first part of the oath taken by every Minister and MP says: “I will be faithful to Zimbabwe, and I will uphold the Constitution and all other laws of Zimbabwe.” Let all those involved make true their oath by speedily enacting corrective laws before we have a deluge of unmitigated crime.

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Mike Murenzvi writes in his personal capacity and his views are not associated with any organisation he is, or may be, affiliated with.