[Bill-Watch] Constitution Watch 1/2015 of 8th January 2015 [Challenge to Child Marriage in Constitutional Court]

[Veritas Bill Watch]

CONSTITUTION WATCH 1/2015

[8th January 2015]

Challenge to Child Marriage in the Constitutional Court

Wednesday 14th January at 9.30 am at the Constitutional Court, 

corner Samora Machel Ave and Third St

Loveness Mudzuru and Ruvimbo Tsopodzi

vs 

The Minister of Justice, Legal and Parliamentary Affairs, 

the Minister of Women's Affairs, Gender and Community Development  and the
Attorney General

The applicants in this case ask the Constitutional Court to declare: 

.        that under the Constitution no-one in Zimbabwe, whether girl or
boy, may enter into a marriage, including an unregistered customary law
union, before attaining the age of 18 years;

.        that section 18 of the Marriage Act, which allows marriage before
18, is unconstitutional; 

.        that the Customary Marriages Act is unconstitutional to the extent
that it does not provide for a minimum age of 18 years for customary
marriages.  

In this bulletin, without wishing to pre-empt the arguments that will be
presented to the court this coming Wednesday, we examine our law in the
light of the Constitution in order to explain why this case has been brought
to the Constitutional Court. 

Child Marriage

Child marriage is recognised as a social evil in most countries of the
world.  It largely occurs because of ignorance and poverty:  poor and
uneducated parents, unable to support all their children, often marry off
their daughters as soon as possible in order to relieve themselves of the
burden of keeping them.  In countries where dowries or bride-prices are
payable, parents have an added incentive to secure husbands for their
daughters at an early age.  

Young people generally lack the emotional maturity needed for marriage.  The
younger the parties are when they contract a marriage, the more likely it is
that their marriage will break down.  This is the case when both parties to
the marriage are young, but the effects can be just as damaging when young
girls are married off to older men [and it is always that way round:
parents do not marry off their young sons to older women].  Young girls also
often suffer physical injury from marriage.  Their bodies are not
sufficiently developed at puberty to cope with childbirth, and if they
become pregnant mother and baby alike are endangered. 

Child marriage has harmful social effects too.  Once married, the girl child
is unlikely to proceed further with her education, so she remains
impoverished both intellectually and economically.  If she enters the
workforce at all, she is likely to do so as an unskilled and lowly-paid
worker.  Therefore child marriage tends to perpetuate poverty.  The parties
to such marriages are unable to advance themselves through education so they
remain poor and are likely to marry off their own children at an early age
in order to relieve themselves of the burden of keeping them.  And so the
cycle goes on from one generation to the next.

International law

International treaties and conventions have recognised the evils of child
marriage:

.        Article 21.2 of the African Charter on the Rights and Welfare of
the Child (1999) states:

"Child marriage and the betrothal of girls and boys shall be prohibited and
effective action, including legislation, shall be taken to specify the
minimum age of marriage to be 18 years."

.        Article 6(b) of the Protocol to the African Charter on Human and
Peoples' Rights on the Rights of Women in Africa (2003) ["the Maputo
Protocol"] is to the same effect.  It obliges states parties to enact
legislation to guarantee that:

"The minimum age of marriage for women shall be 18 years."

Zimbabwe is a party to both these conventions.  It is therefore obliged by
its international obligations to ensure that the minimum age of marriage is
18 years;  in other words to ensure that people are not allowed to marry
until they have reached the age of majority.

 

The Zimbabwe Constitution

The Constitution of Zimbabwe does not specify a minimum age at which people
can marry.  However, in section 78, which is entitled "Marriage rights", it
states that: "Every person who has attained the age of eighteen years has
the right to found a family."  This ensures that once adulthood is reached
persons cannot be prevented from marrying.  [This doesn't necessarily mean
that children cannot marry - and it should be noted that marriage under 18
is permitted in most countries if there are special circumstance, but only
after an application to a court.]

Our Constitution is, however, very strong on the rights of children and in
section 81 ["Rights of children"] it states that every child - i.e. "every
boy and girl under the age of eighteen years" - has the right:

"to be protected from economic and sexual exploitation . or any form of
abuse".

Child marriage, as indicated above, involves both sexual exploitation and
serious abuse.  It is therefore prohibited by section 81.

Section 81 is also very strong on the child's right to education, health
care services, nutrition and shelter, and parental care where possible.  And
the Constitution prohibits discrimination on the ground of gender:  this is
stated particularly in section 56 ["Equality and non-discrimination"], under
which women and men have the right to equal treatment and must not be
unfairly discriminated against on the ground of their sex or gender.

Current Law Still Unaligned with the Constitution 

The law of Zimbabwe, whether statute, common law or customary law, does not
provide the protections against child marriage and its associated abuses
which the country is obliged to provide by under the Constitution and its
international commitments.  This will become clear when we look at the types
of marriages that our law recognises.

There are essentially three types of marriage in Zimbabwe:

Marriages under the Marriage Act

These marriages are sometimes called "civil marriages" because the way in
which they are solemnised, and the rights and duties of the spouses, are
governed by the Roman-Dutch law as modified by statutes, rather than by
customary law.

Under the Act:

.        Girls under the age of 16 cannot get married, even if their parents
or guardians consent, unless the Minister of Justice, Legal and
Parliamentary Affairs has given written permission for their marriage, which
he may do if he considers their marriage desirable [section 22].

.        Boys under the age of 18 cannot get married unless the Minister has
given written permission for their marriage [section 22].

.        Girls between the ages of 16 and 18 can get married with the
consent of their parents or guardians or, if a guardian refuses consent,
with the consent of a judge of the High Court [section 20].  Boys under the
age of 18, as already noted, cannot marry without the Minister's permission,
even if their parents or guardians consent.

The Act is, therefore, defective in two respects.  Firstly, it allows minors
to marry, whereas Zimbabwe is bound, by the Constitution and by
international treaties, to outlaw such marriages.  Secondly, it
distinguishes between boys and girls, which is prohibited by the
Constitution.

Marriages under the Customary Marriages Act

These marriages are contracted under customary law.  The Customary Marriages
Act requires such marriages to be solemnised;  that is to say, after the
parties have gone through the customary formalities of marriage they must
appear before a customary marriage officer and satisfy him or her that bride
and groom as well as the bride's guardian have consented to the marriage;
that marriage consideration [i.e. lobola or roora] has been agreed upon;
and that there are no lawful impediments to the marriage.  Upon being so
satisfied the marriage officer registers the marriage under section 8 of the
Act and it becomes a legally binding marriage.

The Customary Marriages Act has not been amended to take into account social
and legal changes since Independence - for example, the Act continues to
require that the bride's guardian should consent to her marriage, even if
she is over the age of 18, and continues to regard lobola or roora as an
essential element of a customary marriage - but for the purpose of this
bulletin all we need say is that the Act does not specify a minimum age for
marriage.  Hence there is no bar to minors getting married under customary
law, and one textbook on family law in Zimbabwe suggests that the Act
permits the marriage of girls as young as 12 years old.

Even more than the Marriage Act, therefore, the Customary Marriages Act is
defective.  It breaches Zimbabwe's international obligations by allowing
minors to marry, and by allowing young children to be married it breaches
the constitutional provisions protecting children from abuse.

Non-statutory customary marriages - "customary-law unions"

These are marriages which are contracted under customary law but are not
solemnised or registered under the Customary Marriages Act.  They exist in a
semi-legal twilight.  Because they are unsolemnised they are legally
recognised only for certain purposes such as the status and custody of
children [ section 3 of the Act].  However, our courts have recognised them
for other purposes as well, such as payment of maintenance to spouses and
granting wives a share in their husbands' property on divorce.

There is no specific minimum age at which people can contract a
customary-law union.  Under customary law a girl's capacity to marry depends
on her individual physical development, and it is possible for relatively
young children to be married.  In this respect therefore our law is again
deficient in that it does not prohibit minors from getting married and does
not protect children against abuse.

What Should be done?

Although the relevant provisions of the Constitution have been in force
since 22nd May 2013, no steps have been taken by the Government to get
Parliament to correct the serious defects in our law outlined in the
previous paragraph.  That is why it has been thought necessary to bring the
present case to the Constitutional Court, and to request the court not only
to declare that the Constitution does, indeed, lay down that 18, the age of
majority, is the minimum age at which boys and girls alike may marry, but
also to reinforce this declaration by striking down as unconstitutional the
existing legal provisions to the contrary. 

If the Constitutional Court grants the present application, its decision
will be binding on all other courts, on the Government and on every
Zimbabwean, including every parent and every marriage officer.    

A court order may, therefore, be enough, on its own, to put an end to child
marriage in Zimbabwe, but it would be better if the Marriage Act and the
Customary Marriages Act were also amended to bring them into line with the
Court's ruling.

A Bill to amend the two Acts should provide for the following, at a minimum:

.        No one, boy or girl, may legally marry if he or she is under 18
years of age.  This should apply whether the marriage is contracted in terms
of the Marriage Act or the Customary Marriages Act or under customary law.

.        Before a marriage can be solemnised under the Marriage Act or the
Customary Marriages Act, the bride and groom must satisfy the marriage
officer that they are both over the age of 18.

.        It should be a criminal offence for anyone to arrange or encourage
the marriage of a person, boy or girl, who is under 18.

The Bill might allow minors [i.e. boys and girls under the age of 18] to
marry in certain circumstances, but if it does the circumstances should be
very restrictive:

.        The minors should be over the age of 16.

.        The approval of a judge of the High Court should be obtained, given
after the judge is satisfied from reports of social welfare officers that
marriage would be in the best interests of the parties and that the minor
has freely and unreservedly consented.

Campaign Against Child Marriage

There has been a worldwide campaign against child marriage and this campaign
has been vigorously pursued by several Zimbabwean organisations defending
the interests of the girl child.  It is somewhat surprising, therefore, that
the present court application is being opposed by the Ministry of Women's
Affairs, Gender and Community Development.  

Also surprising, in the light of its acknowledgment of the need to align
existing laws with our Constitution, is the opposition to the application by
the Ministry of Justice, Legal and Parliamentary Affairs.  

 

Veritas makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied

To subscribe or unsubscribe from this mailing list please email
<mailto:veritas at mango.zw> billwatch at mango.zw

If you wish to contact Veritas please email  <mailto:veritas at mango.zw>
veritas at mango.zw 

If you are requesting legislation please email  <mailto:veritas at mango.zw>
veritas at mango.zw or look for it on  <http://www.veritaszim.net>
www.veritaszim.net 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mail.veritas.co.zw/mailman/public/bill-watch/attachments/20150109/397e0d2e/attachment.html 
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/gif
Size: 31941 bytes
Desc: not available
Url : http://mail.veritas.co.zw/mailman/public/bill-watch/attachments/20150109/397e0d2e/attachment.gif