Following the court’s decision, the minister of justice and parliament have 12 months to “enact a law that protects all children from sexual exploitation in accordance with the provisions of the Constitution,” read the ruling.
The case was brought by two women who were married as children.
Many welcomed the ruling in hopes that criminalizing sex with underage girls could help slow cases of teen pregnancies and child marriages. Authorities and human rights groups say cases have spiked following the outbreak of COVID-19 that resulted in prolonged school closures and deepening poverty.
“It is vital that we protect children, especially girls. This ruling will not stop child abuse, but it will mitigate, it offers a deterrent,” Tendai Biti, a lawyer who argued the case, told The Associated Press on Thursday.
“This ruling guarantees protection of girls under 18. In the past we had old men taking advantage of girls. Pedophiles were getting away with abuse,” said Talent Jumo, director of Katswe Sistahood, a group that campaigns for girls’ rights. She described the ruling as “a landmark.”
The age of consent for sex has for long been controversial in this southern African country. Campaigners argued that the 16-year age for consent was too young and it allowed for the exploitation of young girls.
However, Justice Minister Ziyambi Ziyambi argued in parliament late last year that “most children are mature, beyond their age nowadays and are already sexually active.” He claimed that raising the age of consent to 18 “means children below the age of 18 having sexual intercourse will be criminalized” and have “unwanted criminal records.”
The Constitutional Court in 2016 outlawed marriage before the age of 18 following a challenge to provisions of the marriage law that allowed child marriages.
In the latest case, Biti argued on behalf of the women that it was unconstitutional that children could not be married until they attain 18 “yet the law allowed them to be abused from the age of 16.” Biti is also a leading official of the opposition party the Citizens Coalition for Change.
“Men were now having their cake and eating it too, so in some instances a man could say ‘I slept with you, I want to marry you but the law says I can’t marry you but I can have sex with you’.” Zimbabwe’s constitution defines a child as someone below the age of 18.
However, even supporters of the latest ruling urged caution, noting that more needs to be done to eradicate entrenched religious, traditional and cultural norms and as well as deepening poverty which all promote teen pregnancies and child marriages.
“Religious and other groups that had made this a norm are a major threat and need to be stopped. Secondly, children should be protected from the negative consequences of early sexual debut by providing access to sexual reproductive and health rights information and also provide for a ‘Romeo and Juliet’ clause in the law to guard against criminalizing adolescent sexual activity,” said Jumo, of Katswe Sistahood.
The “Romeo and Juliet clause” in legal terms often seeks to protect from criminal prosecution underage children who engage in consensual sexual activity with each other.