Sexual consent laws and the child's right to freedom from sexual exploitation in Zimbabwe: Unpacking the 'polarising' legacy of Kawenda & Another v Minister of Justice, Legal and Parliamentary Affairs & Others

This article examines the intersection between sexual consent laws and the child's right to be protected from sexual exploitation and abuse in Zimbabwe. It is shown that, by codifying a minimum age of sexual consent, the law performs an integral function in preventing child sexual exploitation and the prosecution of adult offenders. A MASC - without exceptions or gender-based variations - entrenches a protective and irrefutable presumption that children below that age lack the capacity to consent to sexual activities. It is argued that to better protect children, the stipulation of a MASC should be coupled with the criminalisation of consensual sex between an adult person and any child below the MASC and the enforcement of the relevant rules. The article approaches the analysis through the prism of the decision on 20 May 2022 by the Constitutional Court of Zimbabwe in Kawenda & Another v The Minister of Justice, Legal and Parliamentary Affairs & Others, which held that legislative provisions that stipulate the MASC to be 16 years are invalid and unconstitutional for lack of consistency with the child's right to be protected from sexual exploitation and abuse. The article argues that the Court's decision attracts, divides and polarises public opinion on sexual consent issues due to the conflicting messages it conveys. It is a landmark decision in holding that (a) the child's right to freedom from sexual exploitation means that all children, including those over the age of 16 years, have no legal capacity to consent to sexual intercourse with adults; (b) the limitation of the rights of over-16s to be protected from sexual exploitation is not reasonable, necessary and justifiable in a democratic society; and (c) the Criminal Law Code, in criminalising predominantly extra-marital sex with under-16s, perpetuates the sexual exploitation of children already in marriages. Conversely, the case is also a missed opportunity in failing to (a) declare invalid and unconstitutional legislative provisions that stipulate that children aged 12 to 14 years are capable of consenting to sex with adults in certain circumstances; (b) explicitly hold that the physical appearance of a child should not be a partial defence to any sexual offence committed on a child; (c) fully address the way in which sexual relationships between adolescents should be regulated; and (d) require the state to liberalise access to SRHR information and services to all adolescents who have reached the age of puberty to protect and empower sexually-active adolescents before they reach the age of sexual consent. While these gaps have been partially addressed by the Criminal Laws (Protection of Young Persons) Amendment Act, 2024, some have been re-enacted, thereby retaining the legal position that existed before the Court's decision.