IN previous articles, we argued that Zimbabwe’s 2024 reforms were intended to strengthen child protection by raising the age of consent to 18 while introducing narrowly defined close-in-age exemptions to ensure that consensual sexual activity between adolescents is not unnecessarily criminalised.
We contended that the exemptions were designed for the benefit of children, not as a basis for mitigating the liability of adults who engage in sexual activity with children.
Drawing on child protection practice and comparative jurisprudence from South Africa, Zambia and Kenya, we underscored the risks of treating a child’s apparent consent or an offender’s proximity to the statutory age-gap threshold as mitigating factors that reduce criminal culpability.
We also identified a deeper tension within Zimbabwean law: although Parliament has declared that children cannot consent to sex, adults who engage in sexual activity with children may still face penalties of fines or community service.
This has resulted in inconsistent sentencing outcomes and weakened child protection.
A statute that speaks with two voices produces unequal justice. When Parliament declares that no child can consent to sex, yet simultaneously retains a lesser offence that permits fines and non-custodial sentences, it leaves each judicial officer to resolve the contradiction according to his or her own philosophy.
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Some magistrates will read the statute through a child protection lens and lean towards imprisonment while others, applying orthodox first offender principles to what appears to be a lesser offence, will lean towards fines or community service.
The result is sentencing by lottery. In S v Sixpence and 5 Others HH 567-23, the High Court reviewed cases involving adult offenders aged between 20 and 35 with girls aged between 13 and 15.
For broadly similar conduct, the sentences ranged from a fine of US$300 to six years’ imprisonment, disparities which the court found were not justifiable on any rational basis and which it said called into question the exercise of judicial discretion.
The recent case of S v Ngwenya HB 48/26 completes the picture. The trial magistrate and the High Court each applied the same statute faithfully and arrived at markedly different outcomes because the statute itself points in two directions at once.
Such inconsistency undermines the constitutional guarantee of the best interest principle of child protection as enshrined in section 81 of the Constitution.
It also defeats the stated purpose of the Sentencing Guidelines, Statutoru Instrument. 146 of 2023, which seek to promote consistency and eliminate unwarranted disparities in punishment.
The human costs are significant. For victims/survivors and their families, outcomes that depend largely on which courtroom hears the matter foster perceptions of arbitrary justice and encourage private settlements, including enabling child marriages and compensation arrangements that further entrench the exploitation of girls.
For offenders and would be offenders, deterrence is weakened because punishment becomes unpredictable. Effective deterrence depends not on the occasional severe sentence, but on the certainty and consistency of consequences.
Children deserve protection in line with the international standards Zimbabwe has embraced in the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, both of which require States to protect children from all forms of sexual exploitation and abuse. The criminal law should provide the highest level of that protection.
What is needed in our law?
Firstly, Parliament should revisit section 70 (3) of the Criminal Law Codification and Reform Act to ensure that close-in-age protections operate exclusively as a shield for children and adolescents.
The provision was enacted to prevent the criminalisation of peer relationships among young people, not to benefit adults. Once a person attains 18 years, he or she should fall outside the protective ambit of the close-in-age exemption.
An adult who engages in sexual activity with a child should not be permitted to rely, directly or indirectly, on proximity to the statutory age-gap bracket as a basis for reduced culpability or sentence mitigation.
Consideration should also be given to adopting an approach similar to Canada’s, which excludes relationships of trust, authority and dependency from any exemption. Where an adult occupies such a position, the law should regard that circumstance as aggravating rather than mitigating.
Secondly, the sentencing framework requires reform to promote uniformity and consistency.
The continued availability of fines and community service for adult offenders who engage in sexual activity with children creates the very inconsistency demonstrated in many cases.
Consideration should therefore be given to making imprisonment the starting point for liability under section 70 where the offender is an adult.
Rather than liability commencing with a fine, the offence could carry a custodial sentence. Such a framework would better reflect the seriousness of adult to child sexual activity.
Thirdly, of those responsible for sentencing guidance and judicial training, greater emphasis should be placed on the child protection rationale underpinning the 2024 reforms.
The purpose of section 70(3) should be clearly articulated so that proximity to the age gap exemption is not treated as mitigation for adults.
Relationships of trust, authority, dependency or cohabitation should consistently be treated as aggravating factors because they increase the potential for grooming and exploitation.
Clear sentencing guidance would assist courts in achieving greater consistency and in ensuring that the child’s best interests remain at the centre of the sentencing exercise.
The High Court should provide guidance based not only on the best interest principle, but also on the basis that it is the Upper Guardian of children in Zimbabwe.
Finally, to all of us, it is time to ask honestly whether a child in the early years of secondary school can meaningfully appreciate the consequences of sexual activity with an adult.
Parliament has already answered that question in the negative. The challenge now is ensuring that the law, the courts and society give full effect to it.
Children deserve a legal framework that speaks with one voice and which protects them from all forms of sexual exploitation.