Srhr Africa Trust Statement On The Constitutional Court Ruling On Age Of Consent to Sex

The Constitutional Court ruling of 24 May 2022, will, in effect, raise the age of legal sexual
consent in Zimbabwe from 16 to 18 years. However one views the judgement, it will have a
significant impact on adolescents in this country. As SAT, we understand the good intentions
of those who brought the case, and we recognize the parameters of the case within which
the Court found itself dispensing the judgement it gave. We all rely on the primacy of our
nation’s constitution, and on the Justices that interpret it, to protect our rights.
We believe that there are significant dangers flowing from the decision which, when applied
in law, have the potential to threaten the right to natural adolescent development as well as
the right to access health care for some 450,000 adolescents aged 16yrs and 17yrs. Unless
these dangers are mitigated in law, they may well hamper Zimbabwe’s commitments to health for all its citizens, our obligations to achieve the sustainable Development Goals by
2030, and most devastatingly, our national potential to achieve a demographic dividend boost to national development. The levels of skill, dexterity, and empathy for the lived reality of adolescents that the Legislature and the Executive now bring to next steps, will determine forwhether the judgement works in the long term to the good or the ill of the country.
The Justices and the judgement recognized the above. On several issues, the judgement
showed remarkable prescience for the tasks now ahead. It recognized the reality that
adolescents are having, and will continue to have sex, and that their rights to appropriate
health care cannot be impacted, “The paradox is that whilst it is highly desirable that children
should stay away from sex until they are adults, the lived reality may be otherwise. Children
who have sexual relations still have the right to health care services notwithstanding their
youthfulness. Efforts to accommodate their health care services need must be scaled up ….
Health care providers need to be empowered by the law to provide sexual and reproductive
health services to children in need of such services without regarding them as being too young to need such services.”
It further recognizes that many adolescents engage in consensual sex with one another and
states that, “raising the age of consent in such a way that it protects all children will have
serious impact on ‘Romeo and Juliet’[consensual] relationships”. We can approximate that ‘the serious impact’ includes some 450,000 adolescents, who will, potentially, in future face jail terms for what might be healthy boyfriend/girlfriend relationships that are a natural part of growing up into a healthy loving adult.
There is anecdotal evidence that a significant
number of adolescent boys in jails across the SADC region – the course of their young lives
forever altered – are there for consensual sex offences. It is widely accepted in jurisprudence,
in law making and in policy that the best interests of the child ought to take precedence over all else in matters that consider the welfare of children. Section 81(2) of our Constitution
ensures this for all Zimbabwean children, including adolescents.
It is now incumbent on those of us who work with and support adolescents, whether in
Government, Parliament, civil society, or UN agencies, to act swiftly, collectively, and bravely
to (1) protect children from sexual exploitation, (2) protect adolescents from unwarranted
criminalization and persecution for consensual sex with other adolescents; and (3) to scale up
– as called for in the judgement – adolescent access to health including sexual and
reproductive health and information.
When we succeed at these together, we will ensure that this judgement has the intended
positive impact for adolescents and for generations to come.



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