8. ACCESS TO SRHS AND THE CURRENT AGE OF CONSENT: ARE THEY MUTUALLY EXCLUSIVE? A question that rings pertinent, given the above discussion, is whether the current age of consent and access to sexual and reproductive health services to those below the age of consent are mutually exclusive. Those who advocate for limitation of access to sexual and reproductive health services to those below the age of consent seek to fortify their views on the misplaced presumption that children below 16 are not having sexual intercourse, and any sexual intercourse below that age is illegal hence would come with a police report for medical access, or with adult company. But this belief or presumption poses some challenges. One such challenge is that the law does not in fact penalise consensual sexual activity among minors between the ages of 12 to 16 years. This legal position essentially creates an exception to the rule or norm which prohibits someone under 16 years of age from having sexual intercourse. Yet from an access to health perspective, coupled with the best interests of the child as provided for in section 81(2) of the Constitution, it would defy notions of child protection to deny such children access to sexual and reproductive health services in the name of protecting the very children – when they are in fact engaging in consensual sexual activity among themselves. The question we pose is: given that children are in fact engaging in consensual sexual activity among themselves, is it in their best interests that they be denied access to sexual and reproductive health services, or that they be granted access? 8.1. Legislation Access to health care generally, and access to health care for children in particular, falls squarely within the realm of constitutional regulation. No discussion on this subject would be complete without reference to the constitutional framework. The general access to health care provision in the Constitution is section 76, which provides as follows: “76. Right to health care 1. 2. 3. 4. Every citizen and permanent resident of Zimbabwe has the right to have access to basic health-care services, including reproductive health-care services. Every person living with a chronic illness has the right to have access to basic healthcare services for the illness. No person may be refused emergency medical treatment in any health-care institution. The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section”. Access to reproductive health-care services is made a right. Any limitation of such right thus must be in terms of the general limitations or savings clause of the Constitution, which is 11