The Sunday Mail
By Catherine Makoni
On the January 20 2016, the full bench of the Constitutional Court handed down a very significant judgment for children, in particular, the girl child.
The Deputy Chief Justice, Judge Luke Malaba declared that the long enduring practice of child marriages is unconstitutional.
This is a triumph, not just for the two courageous young women who brought the constitutional case to court, but also for our fledgling Constitution that came into being on May 22nd, 2013.
The facts of the case
Two young women aged 18 and 19 brought the case to court, asking the Constitutional Court to declare the practice of subjecting girls to early marriages unconstitutional under the new Constitution.
In particular, they wanted Section 22 of the Marriages Act (Chapter 5:11) to be declared unconstitutional. They also wanted the Customary Marriages Act (Chapter 5:07) to be declared unconstitutional for failing to prescribe a minimum age for marriages contracted under this Act.
In making this request of the Court, they relied on section 78 (1), arguing that it had the effect of setting 18 as the minimum age of marriage. In making this determination, the Constitutional Court was called upon to make a determination on the constitutionality of long-standing clauses on our law books that allowed parents to marry off their children. Let us now look at what these laws provided.
The Marriage Act (Chapter 5:11)
This marriage is contracted in a civil ceremony either at the Civil Courts or in church, hence its common moniker — church wedding.
Section 22 (1) of the Marriage Act (Chapter 5:11) provided that a boy under the age of 18 and a girl under the age of 16 had no capacity to marry. However, a girl of 16 had the capacity to contract a valid marriage. She only had to obtain the consent of her parents or legal guardian.
Secondly, a boy under the age of 18 and a girl under the age of 16 could obtain the written permission to marry from the Minister of Justice Legal and Parliamentary Affairs if she or he considered it to be desirable for the marriage to be contracted.
The Customary Marriages Act (Chapter 5:07)
This is one of the more archaic pieces of legislation remaining on our books. It was originally published on January 1, 1951! This Act is problematic for a number of reasons, including the fact that it does not stipulate a minimum age for marriage.
Despite the law granting majority status to women and thus giving them full rights to enter into various contracts including marriage, the law still requires the guardian of the woman to consent to the marriage.
The payment of bride price remains a part of this law. Marriages contracted under this legislation can be polygamous.
The New Constitution
The two applicants approached the Constitutional Court on the basis of section 85 (1). This provision gives anyone the right to approach the Court alleging breach of fundamental rights. The clause bears citing in full as it is important that every Zimbabwean be familiar with it if the full potential of our Constitution is to be realised;
Section 85 (1): Any of the following persons, namely
(a) Any person acting in their own interests;
(b) Any person acting on behalf of another person who cannot act for themselves
(c) Any person acting as a member of, or in the interests, of a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interests of its members is entitled to approach a Court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.
It is important to note that the new Constitution now provides for a wider cross section of potential litigants, unlike the old Constitution which was quite stringent in its requirements that for a litigant to have the right to appear before the Supreme Court in a constitutional matter, one had to be personally affected by the issue.
Under the new dispensation, third parties can approach the courts on behalf of litigants who may not be able to do so themselves.
This means for instance that interest groups like NGOs can approach the Constitutional Court for relief.
Another important aspect of this constitutional provision is that one does not need to have already suffered the harm before approaching the Court for relief. One can still approach the courts where fundamental rights or freedoms are likely to be infringed.
In the case of Mawarire vs Mugabe NO and Others CCZ 1 /2013, the Chief Justice said,
“Certainly this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them.
“This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave off the threat, more so under the liberal post-2009 requirements.”
In their application, the two applicants were seeking relief from the infringement of the rights of girls subjected to early marriages. Their contention was that the clauses in the marriage laws are discriminatory against girls as they permit the under-age marriage of girls.
Firstly, they argued that the effect of section 78 (1) of the Constitution is to set the minimum age of marriage at 18 years and further that because section 81 (1) defines a child as a boy or a girl under the age of 18, any provision of the law that makes it lawful to marry anyone under the age of 18 is contrary to the Constitution in particular the clauses pertaining to the Rights of Children (Section 81).
These rights include the right of every girl and boy child to equal treatment before the law. The Marriage Act, by making a distinction between the marriage ages of boys and girls, was denying girls the right to equal treatment before the law.
The reality is that child marriages predominantly affects more girls in our society. According to UNICEF statistics, almost one in four teenage girls is married, while the figure for boys is statistically insignificant. According to the Descriptive Youth and Child Atlas, child marriage prevalence is higher in rural areas (27,4 percent) than in urban areas (24 percent) although there are certain areas in urban areas where prevalence is extremely high.
The study by UNICEF showed a correlation between high level of social and economic deprivation and teenage marriages. According to this study, the effect of child marriages on girls’ education is quite profound, girls exposed to education are less likely to get married early than girls who are not.
The right to protection from economic and sexual exploitation and from maltreatment, neglect or any form of abuse is violated when girls are subjected to child marriages. Poor education outcomes once they drop out to get married mean that their capacity to earn an income and be self-sustaining becomes severely compromised. Dependency on males and other relations for livelihoods can trap girls in a cycle of poverty.
It is common cause that child marriage is a particularly egregious form of child abuse, with most of these girls being married to much older men. It is a known fact that where relationships are inter-generational, the likelihood of HIV infection as well as gender based violence becomes higher.
According to the UNICEF study, child marriages among boys is statistically low. This means that the girls are not getting married to partners their own age. According to the National Baseline Survey on “Life Experiences of Adolescents”, a study conducted by ZIMSTATS looking at the experiences of young people and children found that ”there is growing evidence of an association between violence, especially sexual violence, and HIV and AIDS with four main areas of overlap (1) forced or coerced sex may lead to HIV transmission; 2) violence and threats of violence may inhibit a person’s ability to negotiate safe sex behaviours; 3) sexual violence experienced as a child may lead to increase risk-taking behaviours later in life.”
It is clear therefore that child marriage is harmful and girls are its primary victims.
Beyond this, early pregnancies are a major cause of maternal mortality as their physiological immaturity predisposes young girls to complications in pregnancy.
The case for the respondents
The Applicants sued the Minister of Justice, Legal and Parliamentary Affairs; the Minister of Women Affairs and the Attorney General in their official capacities.
In response, the respondents cited a number of issues. One issue often cited by society as justifying early marriage is that their age notwithstanding, girls mature earlier and faster than boys.
It is shocking that the State felt it important to even oppose the application at all. They could have conceded and not opposed the application for surely and cannot be argued that the relief sought is minimal to the interests of the State or society as a whole.
The respondents further suggested that legislation authorising child marriages was not unconstitutional. It is important here to note that child marriages occur in our society under various guises; be it religious, social, cultural or as a means of dealing with poverty.
The Judgment
This judgment is a landmark ruling for a number of reasons. The most obvious is the outlawing of child marriages.
However, the judge also canvassed a number of issues that the respondents had sought to rely on and in doing so, made a number of pronouncements that are significant from the point of view of the development and deepening of our constitutionalism as well as jurisprudence on children’s rights.
Locus Standi
This is a legal principle that gives a person the right to appear before a court seeking relief.
Under the old constitution, there was a narrow conceptualisation of locus standi.
The only person competent to approach a court for relief was the person who had directly suffered legal harm or who stood to be directly affected by the threatened harm.
The judge explained in his ruling that this situation had been changed under the new Constitution having been expanded to ensure that various categories of persons could approach the courts for relief.
But most importantly, there is now a public interest category meaning that where a person can show that it is in the public interest for the relief sought to be given, then that person, regardless of whether or not they are personally affected, can approach the court for relief.
The Deputy Chief Justice explained that locus standi had to be understood within the context of fundamental principles underpinning the new Constitution namely that “every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection” by the State.
Where the State sought to rely on a technicality to deny the applicants the protection of the court, the Deputy Chief Justice overrode this saying that the fundamental right to access justice meant that the court had to “eschew over reliance on procedural technicalities, to afford full protection to the fundamental human rights and freedoms enshrined in Chapter 4.”
In the end, the DCJ stated that children are a vulnerable group in society whose interests constitute a category of public interest within the meaning of section 85 of the Constitution.
The role of International Law
Section 46 (1) (c) of the Constitution now imposes an obligation on the courts in the interpretation of any provision under the Constitution to take into account international law and all treaties that Zimbabwe is a party to. Again, this is a significant departure from the previous dispensation where the Court could take international law into account. Now there is an obligation to.
The Deputy Chief Justice therefore, sought guidance from international law as well in considering various aspects of the case. For instance, he looked at international sources for an understanding of what constitutes child marriage.
Referring to Article 16 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, he noted that only women and men of full age could marry and therefore the betrothal or marriage of a child could have no legal effect.
The judge also referenced the Convention on the Rights of the Child which contains even wider and more comprehensive protections for children, noting that child marriages infringe on a number of rights articulated in CRC, including the right to education, the right to be protected from all forms of physical or mental violence, injury or abuse, the right to be protected from all forms sexual exploitation, the right to the enjoyment of the highest attainable standard of health, etc.
Importantly in the context of child marriages in Zimbabwe, the judge referenced the African Charter on the Rights and Welfare of the Child and in particular Article 21 which guarantees protection from harmful social and cultural practices and in particular Article 21 (2) which expressly mentions child marriage.
In this regard, it is critical that we keep bringing cases before the Constitutional Court in order for the court to give definition and meaning to the rights contained in our fledgling constitution.
Child marriage as a social evil, what happens next?
The Deputy Chief Justice cited at length a study by UNICEF which set out the horrific consequences of child marriages for the children involved. The report made the important point that:
Although child marriage most often stems from poverty and powerlessness, it only further reinforces the gendered notions of poverty and powerlessness stultifying the physical, mental, intellectual and social development of the girl-child and heightening the social isolation of the girl child.
Evidence shows that child marriage is a tool of oppression which subordinates not just the woman, but her family. Not only does child marriage perpetuates an intergenerational cycle of poverty and lack of opportunities, it also reinforces the subordinated nature of communities that traditionally serve the powerful classes by giving a girl child in marriage to an older male.”
And therein lies the crux of the matter. While the judgment marks an important and welcome development on the issue of banning child marriages, a significant challenge remains with regards to the factors that perpetuate the practice.
It is clear that our marriage law regime, both customary and civil are now in need of urgent reform to bring them into compliance with the Constitution. Changing of those social, religious and cultural mores that drive the practice will however, need much more of an investment by the State and other concerned stakeholders than mere legislative reform, important as that may be.
The Constitutional Court has done its part. The real work of ending child marriages now has to begin in our homes and communities.
As the Deputy Chief Justice aptly puts it, there cannot be a family founded by a child.
And therein lies the crux of the matter. While the judgment marks an important and welcome development on the issue of banning child marriages, a significant challenge remains with regards to the factors that perpetuate the practice.
The author is a programme specialist on Gender and Human Rights at UNICEF
