CCZ 3/22 Diana E. Kawenda V Minister of Justice and Parliamentary Affairs and Others (Age of Consent Judgement)

 
The full judgment of the Constitutional Court in this case is the document downloadable below.  The unanimous decision of the Constitutional Court was to allow the appeal against the judgment of Tagu J in the High Court, which is also available on this website here.
 
MAKARAU JCC: On 20 January 2020, the High Court dismissed with costs, an application to that court by the appellant and another who is not before us, challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.
 
This is an appeal against that order.
 
Background
The appellant and another champion of women and children's causes and rights approached the High Court seeking in the public interest, an order the main thrust of which was to declare the criminal law which governs the age of consent to sexual activities unconstitutional. ...
 
  ....
 

The adjustments required  to align the provisions  of the Code with s. 81(I)(e) of the Constitution appear to be fairly straightforward. They would entail firstly. the amendments of the definition  of  "young  person"   in  s61   of  the  Code   to  include  all  children   as defined in the Constitution and, secondly, the deletion of the word '"extra-marital" in s70 (I) (a) of the Code.

I  accordingly make the following order:

I.       The appeal  is allowed  with no order as to costs.

2.       The judgment  of the court a quo is set aside and substituted with the following:

··                           (I)         The application is allowed with no order as to costs.

(2)        The definition of '·young person" in s 61 of the Criminal Law Codification and Reform Act [Chapter 9.23] is unconstitutional and is hereby set aside.(

(3)        Sections  70,  76,  83  and  86  of  the  Criminal  Law  (Codification  and Reform) Act [Chapter 9.23] are declared unconstitutional and are hereby set aside.  (4)        The orders of constitutional invalidity made in paras (2) and (3) above are hereby suspended for 12 months from the date of this order to enable the respondents to enact a law that protects all children from sexual exploitation in accordance with the provisions of s 81(I)(e ) of the Constitution of Zimbabwe:·


 

 
2022

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