PART 1 of this series examined the High Court’s decision in S v Ngwenya (HB 48/26), in which a 21-year-old man convicted of having sexual intercourse with a 14-year-old girl living in his household had his effective 21-month prison sentence set aside as excessive; in part because the High Court reasoned that he was “barely 4 years outside the protected bracket” of section 70(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and that this proximity ought to count in his favour.
We argued that treating an adult’s nearness to that bracket as mitigation inverts the purpose of a provision that Parliament designed to protect children from prosecution, not to grade the leniency available to the adults who exploit them. Grooming, we noted, manufactures the appearance of a child’s willing participation; that appearance is evidence of the abuse, not a defence to it.
This second part tests that argument in two ways. Firstly, it asks how other jurisdictions — South Africa, Zambia and Kenya — draw the line between protecting adolescents from the criminal justice system and protecting children from adults, to see whether Zimbabwe’s current approach is principled or merely permissive. Secondly, it turns to a deeper structural problem in our own law: a statute that, having declared that no child under 18 is capable of consent, nonetheless preserves a lesser notion of childhood consent it has already abolished.
How other jurisdictions handle these cases
In South Africa, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 sets the age of consent at 16. For children aged 12 to 15, section 15 of the Act creates the offence of statutory rape: an adult who engages in a sexual act with such a child is guilty regardless of the child’s apparent consent. South Africa’s close-in-age protections, read into sections 15 and 16 by the Constitutional Court in Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014(2) SA 168 (CC), operate only among children and adolescents: consensual conduct between 12-to 15-year-olds is decriminalised, and 16- and 17-year-olds have a defence where the age difference does not exceed two years. The court’s reasoning was explicit: the exemptions exist because prosecuting adolescents for consensual peer conduct harms the very children the law seeks to protect. No part of that reasoning extends any comfort to adults. No bracket protects an adult.
Zambia takes an even sterner approach. Under section 138 of the Penal Code, Chapter 87 of the Laws of Zambia, defilement, “unlawful carnal knowledge of a child under 16,” is a felony which may attract a sentence of up to life imprisonment. The child’s apparent agreement is irrelevant because the law recognises that children lack the maturity and capacity to give informed consent. There is no close-in-age exemption available to adults.
Kenya’s Sexual Offences Act, 2006, grades defilement penalties by the victim’s age under section 8: a minimum of 20 years where the child is aged 12 to 15 and a minimum of 15 years where the child is 16 to 18. Notably, in Petition E490 of 2025 (High Court of Kenya, Mwamuye J, 20 May 2026), the Court directed investigative and prosecuting authorities to distinguish consensual, non-coercive and non-exploitative conduct between adolescents of close age proximity from conduct involving coercion, exploitation or a power imbalance, while leaving adult liability under those same sections untouched. Kenya’s trajectory thus mirrors the principle we urge here: we may decriminalise certain children, but should never dilute the liability of the adults.
The common thread across these jurisdictions is unmistakable. Close-in-age provisions exist to keep adolescents out of the dock, not to let adults out of prison. Where the offender is an adult and the complainant a young child, progressive systems treat the conduct as grave, in Zambia and Kenya, grave enough for mandatory minimum sentences measured in decades.
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The gap that remains in our law
The Ngwenya case also exposes a deeper contradiction that this article has raised before. Zimbabwe has decided that a child under 18 cannot consent to sex. Yet when an adult has sexual contact with a child aged between 12 and 17, the offence is not automatically treated as rape. Instead, the adult is charged with the lesser offence of having sexual intercourse with a child, which can attract a non-custodial sentence or even a fine. If a child cannot legally consent until 18, why does the law still treat children aged 12 to 17 as capable of giving a form of defective or “putative” consent that reduces an adult’s criminal liability?
The distinction matters. It is the reason an adult convicted of sexual intercourse with a 14-year-old can lawfully be directed towards community service. It is the reason offenders may return to the very communities, sometimes sadly, to the very households, where their survivors live, while the harm suffered by the child is minimised as a “love relationship.” And it is the reason well-intentioned courts, applying orthodox first-offender principles to what the statute frames as a lesser offence, arrive at outcomes that strike the public conscience as inadequate. The problem is not judicial insensitivity; it is a statute that speaks with two voices.
