New Marriages Act: lifeline to girls, women

Lincoln Towindo

Girls under the age of 18 will no longer legally enter into marriages, while marrying off minors will become a criminal offence under a new law that will be introduced in Parliament soon.

Interestingly, the new Marriages Act, which will consolidate the country’s two marriage laws — the Marriages Act 5:11 and the Customary Marriages Act — will decriminalise the deliberate transmission of HIV.

Although current laws, through Section 22 (1) of the Marriages Act, stipulate that males can enter into marriage at 18, it allows females to do the same at 16 years of age.

However, the new Bill will essentially align the Marriages Act to Section 26 of the Constitution, which provides for free and full consent of both spouses before a marriage is consummated.

It will also align the law to the 2016 landmark Constitutional Court judgement, which struck down Section 22 (1) of the Marriages Act as it was consistent with Section 78 of the country’s supreme law.

In essence, Section 78 of the Constitution puts the age of consent at 18.

Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi told The Sunday Mail that drafting of the Bill has been completed.

“The Bill is ready and we will be taking it to Cabinet soon. . .

“Among some of the issues the law will deal with is that court judgment which ruled that one cannot marry before the age of 18 — we have put it in the law.

“The other issue the law deals with is Section 26 of the Constitution, which speaks about consent and we need to give effect to it. Effectively, it will provide the minimum age of consent,” said Minister Ziyambi.

“We will also give full effect to provisions that children are not pledged into marriages.

“Effectively, the Bill will outlaw child marriages, which has been a very contentious issue in recent times. It will also take care of issues that have to do with gender equality, which we are aligning with Section 3 of the Constitution,” he said.

It is also believed that the new law will recognise the rights of women and children within the institution of marriage.

But one of the major highlights of the proposed law is outlawing child marriages.

In particular, Section 78 of the Constitution says: “The State must take appropriate measures to ensure that — (a) no marriage is entered into without the free and full consent of the intending spouses; (b) children are not pledged in marriage; (c) there is equality of rights and obligations of spouses during marriage and at its dissolution; and (d) in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses.”

Minister Ziyambi also said the envisaged Marriage Act will recognise cultural groups and promote the preservation of cultural values and practices that enhance dignity.

The rights of women in marriages will also be recognised. He said: “Equality of rights and obligations of spouses in marriage and at its dissolution and when dissolution occurs will be observed.

“The Bill will also talk to issues of inheritance. It will ensure that when there is dissolution whether by death or divorce, there is protection of minor children.

“The other provisions will be more or less the same with what we already have, but the biggest issues have to do with protection of rights of women and children.”

The proposal to decriminalise the deliberate transmission of HIV through the Marriages Bill has become contentious.

Presently, Section 79 of the Criminal Law (Codification and Reform) Act makes it a criminal offence.

Minister Ziyambi last week told Parliament that he was going to push through the amendment.

“I have acknowledged that I am going to do that.

“We are looking at perhaps introducing that amendment through the Marriages Bill that is due to come; that is the fastest way to do it,” he said.

Women rights activists cheered Government’s determination to uphold the rights of girls and women.

Plan International head of programmes Tsungai Mahumucha said: “This is a very positive move which provides a lifeline to girls and women in general.

“It is good that Government is upholding what is already in the Constitution.

“Child marriages rob girls of reaching their full potential.

“In the case of child pledging, this is a violation of basic human rights and we welcome Government’s move to outlaw this practice.

“Also, recognising the rights of women in matters of inheritance is very welcome,” she said.

Similarly, Ms Talent Jumo, co-founder and director of Katswe Sisterhood, a non-governmental organisation that focuses on the prevention of child sexual exploitation, said the proposed law would need to be strictly enforced once it becomes law.

“The (proposed) law is a welcome development. This is what we have been calling for, the alignment of our marriage laws to the 2013 Constitution and we are happy that the process has finally taken off,” she said.

“Beyond that, we also need to strengthen our enforcement systems. We risk ending up with a good law that is conveniently ignored.”