Guest column: Thabani Mnyama
Zimbabwe is currently at a point where the government is in the process of attempting to align some laws with the main Constitution. For example, the Prisons Act will be changed to the Prisons and Correctional Services Act in order to encapsulate the rehabilitative aspect as provided for by the Constitution in section 227. Among others, we also have the Companies Act, which is to be changed to the Companies and other Business Entities Act, the consultative hearings of which are still ongoing.
To everyone’s bewilderment, the Parliamentary Portfolio Committee for Health and Child Care then brought to light how they intend to lower the age of consent from 16 years to 12 years.
On March 6, 2019, during a breakfast meeting organised by the Zimbabwe Lawyers for Human Rights (ZLHR), the assistant Clerk of Parliament Johane Gandiwa made some remarks which outraged many people. Their proposal to lower the age of consent for minors from 16 to 12 raises a lot of questions.
Following reactions from the people, mainly on social media platforms, the portfolio committee “clarified” their position by saying they do not intend to lower the age of sexual consent, but access to medical facilities for “sexually active minors”. This alone is an oxymoron as any minor who gets involved in sexual activities would naturally become a victim in most cases.
Taking their justification into account, how can we ensure that a 12-year-old can remember to take their pills consistently? How can we trust them at that age to be firmly consistent with condom use? What health benefits will this bring about in relation mainly to teenage pregnancies and sexually transmitted infections and what will this mean for statutory rape? Who will also be responsible for paying for these services seeing as the adults have been labelled a “hindrance” and we know that our government at this stage cannot afford to foot such bills given our current economic turmoil?
This move also stands to be a threat to Section 60 (3) of the Constitution which accords parents and guardians of minor children rights to determine the moral and religious upbringing of their children including their rights to education, health, safety and welfare, so long it does not prejudice the rights to which the children are entitled under the same Constitution.
The Criminal Law (Codification and Reform) Act [Chapter 9:23] s70 criminalises any sexual and indecent acts with children who are 12 and below. Lowering the age of consent for access to medical facilities for sexually active minors already has the presumption that they are engaged in sexual activities which normalises it, instead of trying to provide more education on the dangers of engaging in sexual activities as a minor.
Every child has a right to be protected from sexual exploitation in accordance with s81 (1) (e) of the Constitution, and this decision by the Portfolio Committee on Health and Child Care would provide loopholes for the sexual exploitation of minor children.
Former legislator Jessie Majome was one of the people who advocated for a referendum on the age of consent to be held as a way of resolving this critical national issue and once pleaded that, “for once we hold a referendum on something that actually touches our lives in a direct way not just politics”.
She together with others like Priscilla Misihairabwi-Mushonga, proposed that the age of consent should be 18 as per section 81 of the Constitution. This part of the law specifies that in every matter concerning children their interests shall be paramount. Considering this, we must question how it would be in their best interests to have sex early.
Our laws must be consistent with our Constitution and such a move is inconsistent not only with the Constitution, but with our morals as a society. The legislators are entrusted to be the policymakers, a duty which requires them to liaise with the masses before bringing up something of this nature and importance. It would be unlawful (and unethical) to have the age of minors lowered to 12.
Before thinking of making such laws, the wise move would have been for the portfolio committee to hold consultative sessions with professionals who work with minors and with the masses before making a decision.
Most of our legislators are clearly out of touch with the people and take their privilege of being in Parliament as an opportunity to further their own agendas . . . just saying!
Thabani Mnyama is a lawyer and academic with special interests in international, constitutional and human rights law, diplomacy and public policy. He is also a co-founder and director of VIOCAP. He writes in his personal capacity.