A new decision by Zimbabwe’s constitutional court (a separate chamber of the supreme court), has found sections of the criminal law unconstitutional because it completely fails to protect children aged 16 – 18 from sexual exploitation. The judgment also found sections that permit child marriage, involving children under 18, unconstitutional. The new judgment contains a harsh critique of an earlier high court decision that found the criminal law was valid, even though it did not conform to the constitution.
Zimbabwe’s constitutional court has found that a law permitting sexual activity from age 16 is unconstitutional. This is because the constitution insists that only those over 18 should be considered adult.
The case is interesting for a number of reasons, not least that the challenge to the constitutionalism of the law was brought by two women who had been ‘child brides’ themselves. One of them was the mother of two children by the age of 19. Both therefore have personal experience of the implications of a law permitting sex and marriage below 18.
Initially the high court had heard an application challenging the constitutional validity of the section of the criminal law that governs the age at which children can consent to sexual activities.
The high court dismissed the case, and an appeal against that outcome has now been decided by three judges of the constitutional court.
What does the criminal law say? The constitutional court sums it up as prohibiting extra-marital sexual intercourse and the performing of indecent acts with a young person, defined as a boy or girl under 16. The constitution, by contrast, guarantees freedom from sexual exploitation to everyone under 18.
The constitutional court decision, written by Justice Rita Makarau, with the agreement of her colleagues, Ben Hlatshwayo and Bharat Patel, included a devastating critique of the high court judgment for its structure, its inadequate analysis of the constitutional question and its focus on irrelevant side issues.
Justice Makarau said that the appeal concerned a very narrow issue: ‘It is whether the impugned law is inconsistent with the provisions of the constitution as alleged ….’
In a continuation of her critique of the high court decision, she added: ‘The issue is neither a debate on whether the age of consent to sexual activities should be raised from 16 to 18, a question that consumed (the court below), nor the complex and broader biological-social-moral issue that questions the age at which children should be allowed to have sexual relationships with each other and/or with adults.’
The high court did not at any stage carry out the normal analysis required when considering the constitutional validity of a law. How the high court had reached the decision that the criminal law provisions were constitutional without any analysis of this sort, ‘becomes incomprehensible’, she wrote.
Worse, the judgment ‘erroneously gave supremacy to the provisions of the (criminal law)’ rather than recognising the supremacy of the constitution.
Instead of carrying out the required analysis, the court deliberately avoided the questions it was asked to answer and ‘fell into a grave error’. ‘It ended up on a frolic of its own, deciding whether or not laws alone can stop adolescents from engaging in sexual activities.’
On the basis of the constitutional court’s critique of the high court’s decision, it was obvious that the earlier judgment could not stand and the apex court thus formally set it aside.
The constitution laid down that every child, ‘that is to say, every boy and girl under the age of 18’, has the right of protection from ‘economic and sexual exploitation, from child labour and from maltreatment, neglect or any form of abuse’.
It ‘settles the definition of the term “child”’ and any law or custom that defined ‘child’ differently was necessarily inconsistent with the constitution.
The applicants’ legal team argued that the constitution makes it imperative that every child must be protected from sexual exploitation. The criminal law, however, does not protect ‘every child’. Instead, it leaves out all 16- to 18-year-old children. And in this way, according to counsel, the law is inconsistent with the constitution, and infringes the rights of the all the children left out of the ‘protective ambit of the law.’
‘I agree,’ says Justice Makarau. ‘The effect of the impugned law is not only to fail to protect those children that are between 16 and 18, it particularly fails to protect all children in child marriages.’
The law denied constitutional protections to some children; but it could not ‘disobey’ the constitution ‘and hope to remain constitutional’, said the judge. The constitution ‘has spoken’, demanding that every child be protected, and there was thus no room to leave any child ‘out of the protective tent’.
‘Romeo and Juliet relationships’
The disputed law ‘does not offer any protection whatsoever to children between 16 and 18, even in an attenuated form. It does not acknowledge them at all.’ It also did not offer any protection to children in child marriages, and it remained a complete defence under the disputed law, that the accused was married to the child.
It was true that raising the age of consent to protect all children would have a serious impact on ‘Romeo and Juliet’ relationships, but concern about that could not detract from the need to protect every child from sexual exploitation in obedience to the constitution.
Child-child sexual relations had to be dealt with via a law that recognised the rights of all children, as set out in the constitution, something that might mean a comprehensive new Children’s Act.
Sexual health services
Another important issue dealt with by the court was the right of children to health services related to their reproductive health. Health care providers had to be empowered by the law to provide sexual and reproductive health services to children who needed them ‘without regarding them as being too young’.
Were the constitutional infringements embodied in the criminal law, justified? Could a way be found to justify the ‘complete denial of protection from sexual exploitation’ to children aged 16 – 18 and to all children in child marriages?
Since the infringement amounted to a ‘complete negation of the right’, there was no scope to argue justification, said Justice Makarau.
The judge said she was caused ‘some anxious moments’ as she considered what relief to grant, but ultimately she set aside as unconstitutional, the definition of ‘young person’ in the criminal law, along with certain sections of the law related to child marriages. However, the orders of invalidity were suspended for 12 months so parliament may enact a law that protects all children from sexual exploitation, as mandated by the constitution.
* "A matter of justice', Legalbrief, 31 May 2022