The Child Marriage Judgment

Background

In 2014 Veritas brought an application in the Constitutional Court to outlaw child marriage.  The applicants sponsored by Veritas sought an order that provisions of the Marriage Act and the Customary Marriages Act which permitted children under the age of 18 to marry violated sections 78 and 81 of the Constitution.  The applicants [Loveless Mudzuru and Ruvimbo Tsopodzi] specifically challenged section 22 of the Marriage Act, which fixed the minimum age of marriage at 16 for girls and 18 for boys, and the absence of any minimum age in the Customary Marriages Act, which meant that girls as young as 12 could be married.

The respondents [the Minister of Justice, Legal & Parliamentary Affairs, the Minister of Women’s Affairs, Gender and Community Development and the Attorney General] opposed the application on two grounds:  firstly that the applicants had no right to bring the case, and secondly that it was justifiable to permit 16-year-old girls to marry, as provided in the Marriage Act, because girls mature at an earlier age than boys.

The case was argued in January 2015 and a year later, on 20th January 2016, the Constitutional Court handed down its unanimous ruling granting the application.  The main judgment was delivered by the Deputy Chief Justice [Malaba DCJ], and Hlatshwayo JCC added a short concurring judgment.  [All court papers including the judgment in full can be found at this link.]   

The Judgment

Preliminary issue:  right of applicants to bring the case

The court dismissed the respondents’ argument that the applicants had no right to bring the case:  the court said they could do so in the public interest under section 85(1)(d) of the Constitution in order to protect weak and vulnerable members of society, namely children.

Main issues

On the merits of the case, the court ruled that:

• Although section 78(1) of the Constitution did not expressly set 18 as the minimum legal age of marriage, it had to be given a broad and generous interpretation conforming to the values and principles of a democratic society;
• Section 78(1) also had to be read in the light of international instruments to which Zimbabwe is a party, in particular the Universal Declaration of Human Rights, the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.  The first two of these instruments impliedly prohibited marriage under the age of 18, the third (the African Charter) did so explicitly.  The court noted also that in 1998 the Committee on the Convention on Civil and Political Rights had asked the government of Zimbabwe to abolish the statutory difference in the marriageable age of girls and boys.  The court pointed out that Zimbabwe is obliged in good faith to carry out its obligations under treaties and conventions to which it is a party.
• The court also noted what it called overwhelming evidence of the horrific consequences of child marriage which, the court said, “could not fail to have an impact on the conscience of any society that cares about the fundamental values of human dignity, freedom and equality”.
• Section 78(1) of the Constitution states:

“Every person who has attained the age of eighteen years has the right to found a family.”

Although the section does not mention marriage, the court said it was clearly implied, since marriage is by definition one of the methods by which a family is founded.  The section means that everyone who has attained the age of 18 years has the right to enter into a marriage.  Its effect, said the court, is that a person who has not attained that age has no legal capacity to marry because a person under that age is a child by virtue of section 81 of the Constitution, and a child cannot found a family.  A person below 18 has not attained full maturity and lacks capacity to understand the meaning and responsibilities of marriage.

• Section 78 of the Constitution therefore had the effect of abolishing child marriage, and nullifying section 22 of the Marriage Act, from the moment the Constitution came into effect in 2013.  Section 78 allows no exceptions for religious, customary or cultural practices, nor for exceptions based on the consent of a public official or of the child’s parents.
• The court observed that there was a fear that if child marriage was abolished, men could impregnate girls and not bear the responsibility of having to marry them.  The answer to this was that pregnancy does not disentitle a girl from enjoyment of all the rights of a child enshrined in the Constitution.  A pregnant girl was entitled to parental care and schooling like any other child.  There was a difference between making a man take responsibility for the pregnancy of a girl and maintenance of the baby, and compelling the girl to get married because she was pregnant.  The issue of early pregnancy is a social problem that needs co-operation amongst all stakeholders to solve.

The ruling

The court ordered that:

• under the Constitution 18 years is the minimum age of marriage in Zimbabwe;
• section 22(1) of the Marriage Act and any other law, practice or custom authorising a person under 18 to marry is unconstitutional and invalid;
• from 20 January 2016 no one may enter into any marriage or other union, including a customary or religious union, before attaining the age of 18.

The judgment is a landmark in Zimbabwe’s constitutional jurisprudence, pointing the way to a broader, more generous and purposive interpretation of the Declaration of Rights.  Nevertheless the judgment is no more than a declaration that child marriage is unconstitutional.

Issues Raised by the Judgment

Amendment of marriage laws

Although section 22(1) of the Marriage Act has been declared invalid it remains on the statute book.  It must be repealed at the earliest opportunity.  Other provisions of the Act also deal with the marriage of minors, and they too must be repealed.  The Customary Marriages Act also needs amendment, primarily to insert a provision prohibiting the marriage of minors [at present no minimum age is not specified in the Act], but also other amendments are needed.

Publicising the illegality of child marriage

Child marriage is an established feature in some sections of our society, and its illegality must be publicised as widely as possible so that everyone is aware of it.

Criminalising child marriage

The big question is when to do so – whether to introduce an amendment to the Criminal Code to impose penalties to give force to the judgment, or wait until there is more information.

Pre-existing marriages – It is important to note that the court did not declare pre-existing child marriages to be invalid because of the immense disruption that such a declaration might cause to the persons involved. But what should be done about these?  

What about people without birth certificates – Marriage officers will need to ascertain the age of those who come to them for marriage – but many in Zimbabwe do not have birth certificates.

More Access to Education

There will have to be more access to education or training for the girl child especially. If parents can’t pay for them and they can’t get married will the State take on the obligation of educating or offering training to these age groups?  Will donors assist?

Opening up debate over the age of sexual consent – already there has been lobbying to raise this to the same age as the age of marriage set by the judgment i.e. eighteen.  But will this drive teenage sexual activity underground and what would be the implications for HIV and AIDS prevention and family planning programmes for young people.

Will teenage pregnancies increase because of the ruling – how to either prevent or make provision for them

Conclusion

To summarise, there are many implications arising from the judgment.  Laws will need to be aligned but there needs to be planning, prioritisation and appropriate timing for such an exercise.  There needs to be further country wide information campaigns.  Problems of putting in place the mechanism for implementation and monitoring need to be considered.   planning of timing and taking socio socio-cultural implications into consideration.

Implementation – How is the judgement and legislation arising from it going to be implemented – who will see to it?

Monitoring – what mechanisms can be put in place to monitor the ending of child marriage?

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