Age of consent to sex versus age of consent to marriage

Mutare Central legislator Innocent Gonese has asked the government to clarify the position between the age of consent to sex and the age of consent to marriage.

Currently, the constitution of Zimbabwe says only those persons who are 18 years and above can found a family. However, the Criminal Law Codification and Reform Act says girls at 16 years can consent to sex.

This mismatch according to Honourable Gonese is causing confusion because girls are getting pregnant after sex but cannot marry.

Speaking In the National Assembly, Gonese said ‘’My question is directed to the Honourable Minister of Justice. Can the Honourable Minister please tell the nation whether the government has got a position or any plans to deal with the mismatch between the age of consent to marry in terms of Section 78 of the Constitution which is 18 and the age of consent to sexual intercourse in terms of the Criminal Law Codification and Reform Act which is actually 16.

‘’This is now causing a problem as a result of which girls between the ages of 16 and 18 can indulge in sexual intercourse, but if they fall pregnant, they cannot get married. Can the Honourable Minister please clarify to the nation what is the government’s position in regard to that incongruous situation?

Criminal Code to blame

In his response, the Minister of Justice, Ziyambi Ziyambi blamed the Criminal Code which he said is old and complicated.

‘’I want to thank Honourable Gonese for the question, which question is very important. If you look at our Criminal Code in terms of sexual offences, the way that they were drafted is out of date and very complicated.

‘’I have initiated a review of our Code with a view of streamlining the sexual offences. So, it is work in progress and I have engaged some professors within the faculties of law and other renowned lawyers to look at it so that we can bring an amended Bill to the Code,’’ he said.

Alignment of laws taking long

Honourable Gonese complained that the alignment of the laws was taking too long.

‘’I understand according to what he says it’s work in progress. Can he please inform the nation and this august House firstly as to when we are likely to see those amendments seeing the light of the day because this is an issue which has been with us since the enactment of the Constitution but more particularly, since the Constitutional Court judgement which clearly defined the legal position that marriage can only be entered into by people who are above the age of 18?

‘’Secondly, can the Honourable Minister indicate to us what the government thinking is relating to that age of consent because at present it is 16? We are in the dark as to what the government’s position is and we are all aware that there are so many people who are opposed to this amendment because they are predators.

‘’The biggest problem that we are confronted with is older men who indulge in sexual intercourse with young girls, which is where the problem mainly lies. Most of the predators are not comfortable with the raising of the age of consent because that will actually increase the number of criminal cases that will be before our courts where girls are between the ages of 16 and 18,’’ he said. 

Lets separate issues of marriage and age of consent

Minister Ziyambi said ‘’I want to thank Honourable Gonese Mr Speaker. I think it is very important to separate issues of marriage and age of consent.  There is nowhere in the world where the age of consent to sexual intercourse is 18 years. In any event, it is very difficult to stop those teenagers from engaging in sex. What we are doing is; we need to separate issues of marriages that come with certain responsibilities with an age where a teenager can consent voluntarily to an act. 

‘’I know that already in our Act we have offences whereby if you have sexual intercourse with a young adult – it is statutory rape. So that is covered but what I was referring to is to streamline it and ensure that it becomes clear rather than how it is currently couched.

‘’We have outlawed marriages of anyone below 18 but if we have two young teenagers who are below 18, we cannot criminalise if they engage in sexual intercourse.  My plea is, it is work in progress; we want to streamline it and ensure that we bring it here and have a debate on how we can now look at the age of consent,’’ he said. 

16 year-olds allowed to drive but barred from sex

The justice minister added that there was a contradiction in that at 16 years people are allowed to drive but at the same are not responsible for their actions if they engage in sexual activities.

‘’I know Honourable Gonese is very much aware that you can have a driver’s licence at 16. So you must also appreciate that on one hand, you must say that somebody is responsible for his/her actions when he/she is driving at 16.  On the other hand. You say he/she is not responsible for his/her actions in engaging in sexual intercourse – it is contradictory.

‘’So, we must separate issues of marriage which we said is 18 and it comes with certain responsibilities. Those who want to be married must wait until they are over 18 but there are certain things that we cannot control.  More-so at 16, we agree that you can drive but if you have an accident, what do we say?  I thank you.