Some applauded the top court while others were worried
about compliance, especially by youngsters in their late teens.
The ruling comes after an application by two women,
Loveness Mudzuru and Ruvimbo Tsopodzi, challenging the Customary Marriages Act
when they were 19 and 18.
Through their lawyer, Mr Tendai Biti, the two submitted
that setting the age of consent at 16 years violated section 78 of the
Constitution. And the Constitutional Court agreed.
Lawyer Mr Oliver Marwa was worried about the practicalities
and described the ruling as a “populist” decision made by adults without
consulting the children they intended to protect.
“This ruling is a mixed thing. People who are putting the
age of consent at 18 years are adults doing so without consulting those below
18. This is a populist ruling and we are over-sensationalising this issue as a
nation.
“We have a population that is mainly rural in terms of
distribution and what research was conducted to arrive at that ruling? If the
court has intervened on paper, is that intervention the same with what is
happening on the ground?
“Raising the age of consent does not mean we are addressing
problems on the ground because the same age groups are the ones who are more
sexually hyperactive than adults.
“The practicalities of this Constitutional Court ruling
will shake foundations of our society,” said Mr Marwa.
Mr Marwa also highlighted that while the court’s ruling
sought to bring gender equality in the context of protecting under-age girls,
it was over-doing it. He also queried how the law will protect boys using the
same law in instances where older women seduce boys below the age of 18.
But legal opinion is far from unanimous.
Mr James Makiya and Mr Dumisani Mthombeni applauded the
court for the intervention saying children needed protection granted by their
parents, guardians and the courts.
Mr Makiya said the court made the ruling in the best
interest of the minor children who do not have a “sober mind when below 18”.
“When children are below the age of 18, the anticipation is
that they should be in school and under the care and guardianship of someone.
From 18 years on, the brain development and its capacity will be sober.
“Basing on this ruling in the context of human rights and
the girl child, children below the age of 18 should be protected by the courts
especially the vulnerable girl child,” he said.
Mr Makiya also said there should be equal protection given
to all children when it comes to consent, saying some young men are being lured
into sexual intercourse without consenting to it, but because of economic
hardships.
“The problem with our society is most developments are
interpreted in a patriarchal sense. When young men below 18 years are lured
into sex some people would say that is being a man, but that is not it.
Children are vulnerable and should be protected,” added Mr Makiya.
Mr Mthombeni said Zimbabwe should lead in as far as issues
of jurisprudence are concerned and should not emulate international practices
that are against the nation’s ethos.
“Young children must be protected by the law, as is the
case with this judgment. They should not be allowed to engage in sexual
immorality at a young age,” said Mr Mthombeni.
Mr Mthombeni would like to see further advances in
criminalising adultery and fornication, although these sort of moral issues are
not protected in the Constitution or in the general law which allows divorce
and it would be difficult to get such laws through Parliament or have the
courts declare them valid in view of privacy rights.
Ms Marvelous Kabinda said the adjustment of the law of
consent was good for society since girls under the age of 16 are not old enough
to consent to sex.
“So it’s a good move because at 18 one will at least be
capable of making their own decisions. However, the decision has a negative
effect to our youth because you would find that some, at the age of 16, would
have matured and capable of making own decisions.
“But on the whole, I think the new age limit is good for
society and it goes well with what we believe in and it will go a long way in
protecting our children.”
Mr Hassan Jemali said: “The age of consent in France is 15
years. I wonder what the difference is between the French people and us
Zimbabweans. People are mature these days from the age of 15 because they have
been exposed to a lot of things.
“So I think what they did was good but there is this
element of lagging behind because of culture. If you look at it closely you can
see that at 15, someone can make important decisions on their own so I wonder
what the difference is between other aspects of life and this sexual part of
life.” Herald
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