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Jessie Majome

Auxilia Katongomara Chronicle Reporter
A LANDMARK Constitutional Court ruling outlawing marriage for people under the age of 18 has created a “grey area” in the law which sets the age of consent at 16, lawyers said yesterday.

The lawyers lashed out at Parliament for failing to comprehensively and timeously review all pieces of legislation that needed to be reformed following the adoption of the country’s new constitution in 2013.

Court-led lawmaking, say legal experts, is problematic.

Lawyer Alex Magaisa said the discrepancy between the age of consent and legal age of marriage was creating a moral hazard.

“The judgment creates a grey area where a girl who is 17 can lawfully have sex, since she is above the current age of consent, which is 16. One cannot marry but can lawfully have sex, but sex has consequences, including pregnancy. The point here is that it might be necessary to consider realigning the age of marriage and the age of consent to prevent complications,” Magaisa said, writing on his blog.

“Should the age of consent now be raised to 18? This is a pertinent question given that the constitution classifies all persons below 18 as children, a point that is confirmed by the Court in this case. Can a person whom the law regards as a child consent to sex?”

He said the current age of consent, 16, was consistent with the age of marriage set for girls under the Marriage Act but now that this has been raised to 18, it might be argued that the age of consent must also be raised.

He said lawmakers must be seized with the matter in the wake of the Constitutional Court’s important judgment to solve the imbalance raised by the conflicting laws.

Harare East legislator and lawyer Jessi Majome (MDC-T) said the Constitution supersedes any other law, so there was no conflict. She says the ConCourt ruling has raised the age of consent to 18, and MPs should move swiftly to repeal all offending legislation.

“A correct reading of the law will tell you that the age of consent is actually 18. This is because of the net effect of Section 2 of the constitution. Where it is provided that the age of consent is 16 it becomes invalid because the constitution states that everybody below 18 is a child,” said Majome.

“We’ve a doctrine of supremacy, what the constitution says is the law, anything that contravenes it isn’t law anymore. Before May 22, 2013, when the new constitution was signed into law, 16 was the age of consent. Not anymore.”

Majome and Magaisa agree that the ConCourt ruling is a serious slap in the face of Prosecutor General Johannes Tomana, who only last year appeared to suggest sexual relations between older men and girls as young as nine should be permitted because “girls develop faster than boys and they mature faster than boys”.

Said Magaisa: “Deputy Chief Justice Malaba, who delivered the judgment, correctly dismissed the flawed and ridiculous argument that boys and girls were treated differently because girls mature earlier than boys physiologically, psychologically and emotionally. He was right to point out that such an argument was not based on sound scientific evidence.

“As far as policing child marriage is concerned, this will require a change in society’s mindset and there have to be serious re-education campaigns, both of general members of the public and more importantly, the whole institutional structures of law enforcement, interpretation and judicial decision-making.

“Institutions that are supposed to enforce the law often turn a blind eye or are lenient on infringements and offenders. This has been observed in the courts of law. It was also evident in the mentality displayed last year by Tomana in relation to the minimum age of consent and child marriage which he seemed to regard as a solution rather than a problem. This is one reason why this landmark judgment is a total nightmare and embarrassment for him.”

The nine-member Constitutional Court bench declared that the Constitution sets 18 years as the age of marriage, and any law contrary to that was unconstitutional.

“The law is hereby struck down. With effect from January 20, 2016, no person, male or female may enter into any marriage, including an unregistered customary law union or any other union including one arising out of religious rite before attaining the age of 18 years,” the Constitutional Court said.