On 20 January 2020, the High Court dismissed with costs, an application to that court by the appellant and another who is not before us, challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.
This is an appeal against that order.
Background
The appellant and another champion of women and children's causes and rights approached the High Court seeking, in the public interest, an order the main thrust of which was to declare the criminal law which governs the age of consent to sexual activities unconstitutional.
The second applicant a quo did not apply for condonation for the late filing of this appeal, which the appellant successfully did. Whilst the second applicant a quo is not before us, where relevant and unavoidable, reference shall be made to the averments that she made.
Further and for convenience, where reference is made to the proceedings a quo, the parties thereto shall be referred to as “the applicants” and “the respondents” respectively.
The locus standi of the applicants to bring the application a quo was not in dispute.
It was accepted by all the respondents, and the court a quo, that, the applicants could bring, in the public interest, a challenge to the constitutionality of sections of Part III of Chapter V of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).
Creating criminal offences punishable at law, the Criminal Law (Codification and Reform) Act, in its language, prohibits extra-marital sexual intercourse and the performing of indecent acts with a young person, who it defines, in section 61(1), as a boy or girl under the age of sixteen years.
This, of course, must be read in the context of the decision of this Court in the matter of Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) in which child marriages were outlawed.
I return to this point in detail later.
The Criminal Law (Codification and Reform) Act also penalizes owners or occupiers of property who knowingly permit another person or persons to commit the offences on their property or detain a young person with the intention that such offences be committed against the young person. The Criminal Law (Codification and Reform) Act further prohibits the procuring of young persons for the purposes of prostitution in addition to prohibiting property owners from allowing young persons to remain on one's property for the purposes of sexual activities.
The above constitutes the content of the impugned law.
Whilst bringing the application a quo in the public interest and therefore not alleging that the impugned law infringes their personal rights, both applicants, now adults, narrated, in their founding affidavits, their personal experiences which they argued could have been avoided had the protection afforded to children under sixteen years of age been extended to all children. They were both child-brides and the second applicant was a mother of two by the age of nineteen.
Having noted the disparity between the definition of a “young person” in the impugned law and of a “child” in the Constitution, the applicants approached the court a quo seeking an order in the following terms –
“It is declared that –
1. The definition of 'young person' and reference to 'below the age of sixteen years' in the below sections of the Criminal Code [Chapter 9:23] are unconstitutional to the extent that they do not include all children under the age of 18 in violation of section 81 of the Constitution.
2. The sections of the Criminal Code [Chapter 9:23] which fail to protect all children under the age of 18, are inconsistent with section 81 of the Constitution and are thus unconstitutional to the extent of the inconsistency.
3. The current age of sexual consent, set at 16 by section 70 of the Criminal Code [Chapter 9:23] is inconsistent with section 81(1)(e) of the Constitution of Zimbabwe.
4. The current age of consent, set at 16 years old, violates the rights and protection for girls including human dignity under section 51, equality and non-discrimination under section 53, right to education under section 81(1)(c), healthcare under section 81(1)(f) and best interests under section 81(2) of the Constitution of Zimbabwe.
5. The respondents pay the costs of suit.”
In seeking the above order, the applicants relied on the findings of this Court in Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) on the harmful effects of marriage on children - especially on girls. They incorporated into their application these findings and the scientific evidence referred to in that judgment.
The application a quo was opposed.
In addition to placing his views before the court in an opposing affidavit, the second respondent was content to abide by the decision of the court.
The parties made lengthy and detailed arguments a quo. It is not necessary that I burden this judgment with these.
Despite the lengthy and detailed arguments that the parties advanced a quo, the sole issue that fell for determination before that court was whether the impugned law is unconstitutional on any one or more of the grounds advanced by the applicants.
With respect, the issue was not, as consumed by the court a quo, a determination of the age at which children should have their first sexual experiences.
The Decision a quo
As indicated above, the court a quo dismissed the application with costs. In dismissing the application, the court made a number of findings. It is necessary that I set out some of these in detail.
Right from the outset, the court a quo set out –
“to examine trends (world-wide) on age of sexual consent, age of marriage, child development, and the effect of raising to 18 years the age on sexual consent on child protection and whether section 70 (of the Code) and related sections are unconstitutional.”
Whilst there was nothing intrinsically wrong in setting the inquiry this wide, the court a quo thereafter disproportionately devoted its time and industry to the introductory issues at the expense of the primary issue that was before it.
It thereafter largely focused on whether the age of consent in Zimbabwe should be raised from sixteen to eighteen; in itself an important debate, but, one that was not before it.
Scant regard it paid to the question whether or not the impugned law is inconsistent with the Constitution.
For instance, citing a report by UNICEF, UNESCO, UNWOMEN, UNPFA and UNDP 2019, on Adolescent Consent to Marriages and Sexual Activity and Access to Sexual Reproductive Health Services in Light of the Zimbabwe Marriages Bill 2019, the court found, that, it is a notorious fact that children in Zimbabwe are indulging in sexual activities from an early age. Forty per cent of girls and twenty-four percent of boys are sexually active before they reach the age of eighteen.
In view of the issue that was before the court, the finding by the court, in this regard, did not add any colour or flavour to the constitutional question that was before it.
Further, this finding was made on evidence procured through the court's own industry. The various United Nations Agencies reports that the court relied upon in making this finding were not tendered as evidence by any of the parties....,.
In attacking the correctness of the decision a quo, counsel for the appellant pointed out, that, the court made findings of fact in favour of the respondents on evidence that the respondents had not placed before it....,.
In defending the correctness of the decision a quo, counsel for the respondents argued, that, the matter that was before the court a quo, and is before us, is sociological in nature and required the applicants to have placed expert evidence before the court, which evidence the appellant did not tender.
In the absence of such evidence, it was his submission, that, the court a quo correctly researched, on its own, to enable it to come to the correct decision....,.
I have referred to this observation above, expressing my view, that, the findings of fact, even if they had been made on evidence properly before the court, did not colour or flavour the issue that was before the court one way or the other.
For the avoidance of doubt, however, I do not place any weight on such findings as they were made in an irregular fashion.
