Chronicle Editor
Andile Tshuma
The issue of legal age of consent to sex and legal age of marriage in Zimbabwe is a minefield. A lot is at stake when considering the best interests of the girl-child involved.
During the lockdown alone, 5 000 girls were reported to have fallen pregnant and dropped out of school, so the problem is real, and big.
Common street word is that having the legal age of consent to sexual activity at 16 years but marriage at 18 means that girls are exposed and vulnerable as men can ‘use’ them and sleep with them for a whole two years, knowing that should things go wrong and they fall pregnant, they walk away scot-free citing that the law doesn’t allow them to marry the ‘minors’. These were some of the sentiments shared by participants at the recently held Sexual Reproductive Health Rights and Maternal Health dialogue run by the Women’s Institute for Leadership Development (WILD), with its partners.
Under Zimbabwean law, the age of consent for sexual intercourse is 16. However, a 2016 ruling by Zimbabwe’s constitutional court ordering the Government to raise the legal age of marriage to 18, has contributed to the confusion around the age of consent.
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 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.
Child rights activists have argued that the current age of consent is discriminatory towards girls as it disproportionately compromises their health, education, human dignity and best interests’ rights.
At the WILD SRHR meeting, some of the participants 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 of 16 are virtually free from criminal prosecution for engaging in the same activity.
Participants said the differences in law could expose those aged 16 and 17 to sexual exploitation while raising the age of consent to 18 would at least deter men, especially older men, from engaging in relationships with girls under the age of 18.
Rather than taking action to protect children’s rights, politicians have become entangled in a web of confusion around whether changing marriage laws also requires raising the age of consent to sex from 16, and what the age of consent means in terms of accessing reproductive health services.
Many adolescents are sexually active from an early age and adolescent pregnancy rates are rising. Zimbabwe’s demographic health data indicates that nearly 40 percent of girls and 24 percent of boys are sexually active before they reach the age of 18. Some may be freely choosing to engage in sexual activity with each other, while many others are victims of child marriage, sexual violence or exploitation.
According to a study by Amnesty International, adolescents in Zimbabwe didn’t know how to protect themselves from unintended pregnancies and sexually transmitted infections, including HIV. Entrenched taboos around adolescent sexuality, barriers to health services and a failure to provide comprehensive sexual education in schools keep adolescents dangerously cut off from information that is vital to protect their well-being and futures.
The study also highlighted that girls who became pregnant also faced human rights violations. Some were pressured to drop out of school or forced into an early marriage. Others were ostracised by their communities and shunned by their families.
Whatever their circumstances, adolescents have the right to sexual and reproductive health information, education and services. The Commission on Human and People’s Rights and the African Committee of Experts on the Rights and Welfare of the Child, are clear that children do not have the capacity to consent to marriage. Both panels stress that 18 years is the minimum age for marriage without exception.
The commission explains that child marriage can never be in the best interests of a child, especially when used to “remedy” the “dishonour” of pre-marital sex, pregnancy and poverty. In contrast, the experts say children may have the capacity to consent to sex from a younger age and emphasise the importance of protecting access to sexual and reproductive health services and information for adolescents.
It is therefore worrying that in 2018, the Zimbabwean government passed the Public Health Amendment Act which sets 18 as the age of consent to medical treatment.
The limitation of access to sexual and reproductive health services to persons above 16 years of age is often linked to the age of sexual consent, which in Zimbabwe is set at 16 by the Criminal Law (Codification and Reform). The notion is that a person under the age of 16 cannot legally have sexual intercourse and, therefore, can only access SRHS with a police report or adult company.
This, however, disregards the fact that Zimbabwe does not penalise consensual sex between children aged 12 and 16.
Because a child under the age of 16 years cannot legally consent to sexual intercourse at law, it is then presumed that a child under the age of 16 years does not need contraceptives or other SRHS, which is a belief that prejudices children.
This is because children between 12 and 16 years can among themselves have consensual sexual intercourse without offending any penal provision. That legal position aside – and most children are in fact not aware of that legal position – it is fact that children are engaging in sexual activity among themselves at early ages. Such children require access to sexual and reproductive health services as an intervention.
In Zimbabwe, the push to remove age restrictions from access to sexual and reproductive health has been conflated with the lowering of the age of consent.
This confusion is compounded by the Government’s stated intention to raise the age of sexual consent from 16 to 18, in line with the constitutional provision that only people aged 18 and above are allowed to marry.
Some interesting statistics as tabled by ZIMFACT.
• The 15-24 age group population of girls and young women (AGYW) is 1.365 million.
• HIV prevalence for the 15-24 AGYW demographic is around 7.04 percent.
• In Zimbabwe, 22 percent of adolescent females aged between 15-19 years have begun childbearing.
• One in every six teenagers (17 percent) has given birth and another five percent are estimated to be pregnant with their first child.
• The proportion of girls aged 15-19 who have begun childbearing increases with age, from three percent among girls aged 15 to 48 percent among 19-year-olds.
• Forty-eight percent of young people in Zimbabwe do not know their HIV status as they need parental consent for testing.
• 16 000 new HIV infections are attributed to young women who have never been married.
• 70 000 illegal abortions are performed in Zimbabwe annually, many of them involving adolescents under 16 years old.
With such chilling and sobering statistics on sexual reproductive health, adolescents must be given full rights to access reproductive health information, education and services, irrespective of their age, without parental consent.
Government and policy makers should consider the removal of age restrictions in accessing reproductive health services by adolescents, to enable them to access prevention tools which protect them from new HIV infections, Aids related deaths, unintended pregnancies and unsafe abortions.
SRHR activists say the age of consenting to sexual activity and the minimum age of marriage should not be linked to the age at which adolescents can access sexual and reproductive health information, education and services.
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