No plans to raise age of sex consent, teach your children morals – minister

By Nkosana Dlamini

Justice Minister Ziyambi Ziyambi has defended government’s continued reluctance to correct the mismatch between ages of consent to sex and marriage among locals, adding that parents and guardians should not abandon the burden of teaching their children morals on the State.

Zimbabwean laws state that any child who has reached 16 years can indulge in consensual sex, but the national constitution forbids any marriage by persons below 18.

But addressing MPs in parliament Wednesday, Ziyambi insisted there was no direct correlation between one’s preparedness to enjoy consensual sex and their maturity to make a conscious decision to commit to marriage.

Ziyambi was responding to MP Nyarai Tsuura who had asked the minister to explain what government policy was in light of that the constitution has outlawed marriages of children below 18 while the country’s statutes still allow those who reach 16 years to indulge in consensual sex.

The minister said Section 78 of the constitution sets out the age of consent to marriage at 18.

“It is necessary that I point out that there has never been in our law, a direct equation made between marriage and indulging in sexual activity,” he said.

He added, “We do however, implore parents, custodians and guardians to educate and teach the children to refrain from sexual conduct at a young age.

“We cannot, however, transfer this responsibility to the State, police and judiciary unless the sexual conduct involves matters such as rape, indecent assault and obtaining facts through inducement.”

Ziyambi argued that, “The age of consent being fixed at 16, recognises facts which the law cannot dictate. The facts are that at the age of 16, most children are mature, beyond their age nowadays and are already sexually active.

“Raising the age of consent to sex to 18 means children below the age of 18 having sexual intercourse will be criminalised.

“This results in children getting unwanted criminal records. So, our position is that as parents, guardians and society, we must teach our children morals as opposed to abrogating our responsibility to the State, to say criminalise this conduct.

“In addition, Madam Speaker, our prisons will be filled with young children who will now be labelled as criminals for consensually engaging in sexual activity.

“Our judicial system will be clogged with these matters, resulting in resources being diverted from the real sexual crimes and other serious criminal offences.

“If having intercourse becomes a criminal offence yet children are already indulging, this will deter these children from accessing sexual healthcare, since trying to access this healthcare is tantamount to admitting that one is guilty of a sexual offence.”

READ FULL STATEMENT BELOW:

POLICY REGARDING AGE OF CONSENT TO SEXUAL INTERCOURSE

HON. TSUURA asked the Minister of Justice, Legal and Parliamentary Affairs to explain:

(a) What the Government policy is regarding the age of consent to sexual intercourse considering that the promised alignment of the (Criminal Law Codification and Reform) Act with the Constitution has not yet been tabled before Parliament.

(b)    Whether or not the inconsistencies with the Constitution of the Act of Parliament as evidenced by the one that provides for an age of consent lower than the age prescribed in the supreme law of the land do not create confusion.

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam Speaker.  I want to thank Hon. Tsuura for the question. Madam Speaker Ma’am, regarding the first part of the question, the current legal position as referred in Section 70 of the Criminal Law Code is that the age of consent to sexual activity is pegged at 16 years.  That is the law.  There is no international convention or treaty which provides for the age of consent to sex.  So let us just be clear from the start that we do not have a standard age of consent across the board.

Our Constitution is also silent on the age of consent. However, on Section 78, it sets out the age of consent to marriage at 18 years. It is necessary that I point out that there has never been in our law, a direct equation made between marriage and indulging in sexual activity. So, it has never really stated that this is the age you must indulge in sex and we equate to age of marriage. It has never been in our law.

That practice has never been there and we must not do so because marriage involves and requires more from a person as there are life commitments to consider including personal or proprietary and psychological as well, and we still stand by the position that 18 is the age of consent to marriage.

We do however, implore parents, custodians and guardians to educate and teach the children to refrain from sexual conduct at a young age.  We cannot however, transfer this responsibility to the State, police and judiciary unless the sexual conduct involves matters such as rape, indecent assault and obtaining facts through inducement.

Madam Speaker Ma’am, there are proposals that the age of consent to sex should be raised to 18 years.  Raising the age of consent to 18 years creates inevitable consequences.

These include criminal records for children and a bar to access sexual healthcare. Dr. Labode can allude to that.  Children are already engaging in sexual activities among themselves or with older people.

The age of consent being fixed at 16, recognises facts which the law cannot dictate.  The facts are that at the age of 16, most children are mature, beyond their age nowadays and are already sexually active. 

Raising the age of consent to sex to 18 means children below the age of 18 having sexual intercourse will be criminalised. 

This results in children getting unwanted criminal records. So, our position is that as parents, guardians and society, we must teach our children morals as opposed to abrogating our responsibility to the State, to say criminalise this conduct.

In addition, Madam Speaker, our prisons will be filled with young children who will now be labelled as criminals for consensually engaging in sexual activity. Our judicial system will be clogged with these matters, resulting in resources being diverted from the real sexual crimes and other serious criminal offences.

If having intercourse becomes a criminal offence yet children are already indulging, this will deter these children from accessing sexual healthcare, since trying to access this healthcare is tantamount to admitting that one is guilty of a sexual offence. 

These are issues which need to be resolved but my Ministry will not make a unilateral decision without consulting.  There shall be consultations with stakeholders and the general public so that we can take steps on age of consent to sex.  However, I repeat, let us deal with issues of morality as a society and not transfer that responsibility to our criminal courts.

Madam Speaker Ma’am, on alleged inconsistencies between the Criminal Law Code and the Constitution, let me hasten to say there are no inconsistencies between the two.  The Constitution does not provide for age of consent to sexual intercourse.  It provides for the age of consent to marriage in Section 78, which is set at 18 years of age.

I would also like to make it clear that there are laws against rape and indecent assault.  And there are laws against obtaining sex by inducements such as using money, bribery, et cetera where such are considered criminal offences and offenders will be rightfully charged.  Thank you Madam Speaker Ma’am.

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