TO its credit, the nation of Zimbabwe has made significant progress in strengthening the protection of children.
One of the most important reforms came in 2024 when Parliament raised the age of sexual consent from 16 to 18 years through the Criminal Laws Amendment (Protection of Children and Young Persons) Act. The intention was clear: to give children greater protection from sexual predators. Parliament introduced close-in-age (“age-gap”) provisions in section 70(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which shield sexual conduct between children whose ages are within three years of each other and between a child and an adult who is not more than three years older from automatic prosecution.
A recent decision of the High Court invites the nation to reflect on what these provisions were designed to achieve. In S v Ngwenya (HB 48/26), the court reviewed the sentence of a 21-year-old man convicted of having sexual intercourse with a 14-year-old girl who lived in the same household, where her father had placed trust in him. The trial magistrate had imposed an effective 21-month term of imprisonment. On review, the High Court set the sentence aside as excessive, reasoning, among other things, that the offender was “barely 4 years outside the protected bracket” of section 70(3), and that the age difference ought to have been taken in his favour. The matter was remitted for the trial court to consider a non-custodial sentence.
The court applied long-established sentencing principles: first offenders should, where possible, be kept out of prison, community service must be seriously considered for sentences of 24 months or less and youthful offenders deserve leniency. Those principles are sound and nothing in this article questions the court’s fidelity to them. Our concern is narrower and it is one we raise from the vantage point of those who work with children and see what judicial officers often do not see in the record before them: the reasoning that proximity to the close-in-age bracket counts in an adult’s favour risks turning a child-protection measure into a sliding scale of leniency for adults. That, we respectfully suggest, is the opposite of what Parliament intended.
Why a child’s ‘consent’ can never be consent
Having worked with children, we understand that many so-called “consensual” relationships between adults and children are rarely relationships of equals. We also understand the implications of evolving capacities. Children are vulnerable to manipulation, grooming, economic pressure, emotional dependency and abuse of authority. A child may appear to agree to sexual activity without fully understanding its consequences or recognising the coercion involved. Grooming, in particular, is designed to manufacture the appearance of willingness: the adult builds trust with the child and her family and isolates the child from those who may intervene. By the time the conduct comes to light, the child may genuinely describe the relationship as “love.” That description is the product of the abuse, not evidence against it.
The facts in Ngwenya illustrate the pattern child-protection practitioners encounter daily. An offender who breaches trust and takes advantage of proximity to an innocent child.
The trial court described him as someone who, instead of acting as her protector, took advantage of her. A 14-year-old — a child in Form 1 or Form 2 — cannot meaningfully weigh the risks of pregnancy, sexually transmitted infection, school dropout and lasting psychological harm against the attention of an adult man with means to woo her.
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This is precisely why Parliament resolved that no child under 18 can consent to sex. The “love relationship” framing should, therefore, carry little weight in mitigation; in many cases, it is itself the clearest marker of grooming.
What section 70(3) was designed to do
When the age of consent was raised to 18, Parliament recognised the danger that two 16-year-olds experimenting with each other or a 17-year-old and her 19-year-old boyfriend, could both be dragged through the criminal justice system that exists to protect them. Section 70(3) answers that problem: peer relationships within a narrow three-year band are not automatically prosecuted and, even then, only with the Prosecutor-General’s authority after a probation/child protection officer’s report.
Two consequences follow from this design. First, the bracket is deliberately narrow and tightly policed. It is not a starting point from which leniency radiates outwards in proportion to how “close” an adult falls to its edge. The question to ask is about Parliament’s intention when it enacted the law and, secondly and structurally, whether the exemption should ever apply between an adult and a child? Would a scale balance evenly if a child were to be pitted against an adult? Measured against the purpose of the provision, a glaring gap may actually be an aggravating feature of the relationship’s inherent inequality, not a mitigating proximity to lawfulness. Judicial officers may not always have before them the social evidence, such as the grooming dynamics, the power asymmetry and the long-term harm that is occasioned when a child is introduced to sex prematurely. It is for those of us who do see that evidence daily to place it before the public and the courts.
This article will continue in the next edition…
Sharon Chava is a human rights lawyer and can be contacted on +263776492177. Pamellah Musimwa is a child rights lawyer and can be contacted on +263777000542. Chinga Govhati is a child protection advocate and can be contacted on +263773287898
