The other important goal of law and a legal system is to protect and promote the best interest of minors. It is on the basis of this all important principle that the High Court is legally the upper guardian of all minors. While any other aspect of abuse of minors is considered evil, sexual violation is for almost all persons considered heinous. Of a recent past, Zimbabwe has shilly – shallied on its laws as regards sexual intercourse with a minor creating periods of unnecessary social and legal undesirables. This presentation while commenting on the shilly – shally development of this particular law, shall deliberately set out a complaint against the agencies of government that must make and react to legal developments.

 

  • SEXUAL INTERCOURSE WITH A MINOR (PRE – 24 May 2022) 

 

This period recognized the age (16 years) as the age for one to consent to sexual activities. The law that precisely defined a young person and set out the crime of sexual intercourse with a minor was then Section 70 (1) (a) of the Criminal Law (Codification and Reform) [Act Chapter 9:23]. The reality of this period is that “Children” of (16 years) of age and above had legal sex with the blessing of law – even though the Constitution recognized the age of (18) as the age of majority and allowable age for one to get married.

 

  • PERIOD OF 24 MAY 2022 – 25 MAY 2023

 

In an act of deep societal reflection the case of Kawenda vs Minister of Justice Legal and Parliamentary Affairs and Others CC23/2022 was brought before the constitutional Court which court rightfully rendered Sections 70, 76, 83 and 86 of the Criminal Law (Codification and Reform ) Act (Chapter 9:23) unconstitutional. The Constitutional Court suspended the validity of these unconstitutional provisions for a period of (12) months to allow the Minister of Justice legal and Parliamentary Affairs through the Parliament to procedurally align law with the Constitutional Court’s judgment.   For the purpose of legal identification, for the period of (24 May 2022) – (25 may 2023) sexual intercourse with a minor meant with someone below the age of (18 years). In practical terms someone who had been having sexual intercourse with a (16 year) old as his girlfriend woke up with a potential jail sentence, If ever his hands were to be caught in the cookie jar.

 

  • PERIOD OF 26 MAY 2023 – 11 JANUARY 2024

 

The period upon which the laws that allowed sexual intercourse with a minor were to be suspended pending removal by Amendment by the Minister of Justice Legal and Parliamentary Affairs was (12 months) from the date of issue of the Constitutional Court’s judgment. On the 26th of May 2023, the 12th month period expired without any remedial action from the Minister of legal and Parliamentary Affairs. The expiry of the (12) months rendered the dictates of the Kawenda Constitutional Court judgment ineffective. The opportunity to have legal sexual intercourse with a 16year old was opened and people literally started to utilize this undesired windfall. 

The public who themselves are not students of law in their numbers knew that the age of sexual consent had been changed to (18) years. The technical changes by operation of law happened under their nose. Even the Prosecutor General continued to prosecute as if the Kawenda judgment was still valid until in the case of state vs Gumbo HB 214/23 

 

It was put clear by Justice Dube – Banda and Kabasa J  On a case up for automatic  review that following the expiry of the (12) months (16 years) was no longer a crime, it had been resorted to as the age of sexual consent. 

 

  • Period of 12th January 2024 to present

 

The Dube – Banda judgment seems to have become the needed call to government. Realizing that the normal law changing process would take longer and the undesirable conduct will continue – the President used the Presidential Powers (temporary measures) Criminal laws (Protection of Children and Young Persons) regulations 2024 and made a law that confirmed with the Kawenda Constitutional Court judgment. The effect of the President’s intervention is that again, the age of sexual consent has now changed to (18 years) 

 

COMMENTS

 

  • The failure of the Minister of Justice, Legal and Parliamentary Affairs to abide by the dictates of the Constitutional Court judgment is regretted.

 

  • The National Prosecuting Authority had a duty to coordinate and inform/ remind the Minister of Justice of the impending expiry of the (12 month) period given the fact that this legislation is the domain one that they operate under. 

 

  • The Attorney General in his General overview as the government‘s top lawyer ought to have diarized on this issue and done follow up advisory.

 

  • Legal ignorance is already very high in Zimbabwe. Situations of legal uncertainties or overnight legal changes must be avoided. 

 

  • Issues of child sexual exploitation must be top priority in the nation.