Choice Damiso Correspondent
THIS year started on a very positive note with the landmark judgment from the Constitutional Court.
The court boldly declared that: “A nation which is not concerned with the welfare of its children cannot look to a bright future.”
The judgment in the case of Loveness Mudzuru and Ruvimbo Tsopodzi v Minister of Justice Legal and Parliamentary Affairs and Others CCZ 12 /2015 has certainly painted a bright future for our children, particularly the girl child!
In that judgment, the highest court in the land declared in a 53-page long judgment that Section 22 of the Marriage Act is unconstitutional because it allows girls below the age of 18 to get married, in violation of Section 78 of the Constitution, which reserves the right to marry and to found a family to people who are over the age of 18. This short piece will give 10 reasons why Zimbabweans should celebrate the passing of this historical ruling with all the pomp and fanfare it deserves.
1. The judgment aligns the marriage law to the Constitution
The Constitution of Zimbabwe is a very progressive document that sets the stage for a society in which the rule of law, respect for human dignity and gender equality and respect for fundamental human rights are observed.
The realisation of Constitutional ideals, however, depends to a large extent on legislation that is aligned to the imperatives of the Constitution. By striking out Section 22 of the Marriage Act, the alignment of that Act to the Constitution has to that extent been achieved without the legislative process and all its delays.
2. Clarification of the status of unregistered customary marriages
The judgment has clarified that child marriage can no longer take place under the guise of unregistered customary and religious unions. This is important because the vast majority of marriages in Zimbabwe are solemnised according to customary rites. This means that culprits cannot escape the law by simply circumventing the Marriage Act.
3. Application of international human rights law
The Constitution provides that international law is part of Zimbabwean law.
The court confirmed this by applying the provisions of the international human rights agreements that Zimbabwe is party to in arriving at its judgment. The court confirmed this by applying the provisions of the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and the African Union Convention on the Rights and Welfare of the African Child (AU-RWAC), both of which Zimbabwe has ratified. This clarifies that international law, often more progressive than domestic law, can be invoked successfully by vulnerable groups.
4. No end of the road for a pregnant girl
Often when a girl falls pregnant, that spells the end of the road for that girl’s education. The court said clearly that the fact that a child has fallen pregnant does not mean that she is no longer a child.
She remains a child who will still be entitled to all the rights of a child including the right to education. The Ministry of Primary and Secondary Education has been told that it has a role in ensuring that this is a reality.
5. Articulation of the horrific adverse consequences of marriage on girls
The court did not shy away from detailing quite graphically the horrific consequences of child marriage, which includes putting girls at risk of gender-based violence, trafficking, HIV and other health consequences such as obstetric fistula, where a woman or girl develops a hole between her vagina and bladder or vaginal and rectum or both.
This leads to incontinence, where urine and/or faeces pass through the vagina. This is a condition that affects many young girls after child birth because their young bodies are not yet ready to deliver a baby.
These girls frequently suffer a double blow as they often lose the baby as well. When highlighting these issues, many times development partners are dismissed as crying wolf but to have this reality confirmed by the highest court in the land is gratifying.
6. Debunks the myth that a girl matures physiologically and psychologically earlier than a boy
This myth is often used to justify discrimination against girls by providing for a lower age of marriage for them. The court correctly defined this as a baseless myth that has no place in Zimbabwean law. This means this myth no longer holds water as a basis for other forms of discrimination against girls.
7. Definition of public interest
The objective of protecting the public interest is one of the basis upon which the Constitutional Court will entertain a matter brought by a particular litigant before it. The court defined public interest broadly enough to allow people who are not directly affected by the impugned measure to challenge it before the court, that is, it is not only people who are directly affected by a condition who are allowed to bring such an issue to the courts. As a measure of public interest, one could for example, bring discrimination against disabled children before the courts even though they do not have a child with a disability themselves.
This is good news for development workers because it opens the way for a diverse group of interested people and groups to be able to litigate for the greater good.
8. Points out shortcomings in international conventions
The Convention on the Rights of the Child (CRC ) is the most widely ratified international agreement in the world, yet, despite its intended objective of protecting children, it is strangely silent on the subject of child marriage. The African Union Convention on the Rights and Welfare of the African Child, on the other hand, is very explicit and contains a direct prohibition on the marriage of people below the age of 18.
The court pointed out this shortcoming in the CRC and urged state parties to work toward rectifying this.
9. Affirms the principle of the best interest of the child
The principle of the best interest of the child is a cornerstone of child law. To have it confirmed so emphatically was gratifying.
10. Recognises the role of parents as duty bearers
Child marriage is a violation of the fundamental rights of the concerned child. Often, the most prominent perpetrator is the child’s “husband”. The court did well by stating that the buck stops squarely with the parents of the child because often it is them who sanction and arrange the marriage in exchange for wealth. This is an excellent judgment deserving much praise and really much ado about much. This judgment has gained Zimbabwe international recognition for its bold stance to protect the rights of children and with each passing day congratulatory messages are pouring in from the United Nations family, international and regional Non Governmental Organisations.
Is there maybe a tiny worm in this otherwise perfect apple? After all has been said and done, the next steps of how this judgment can be translated into reality are now very crucial. The highest court has played out the pace for all of us to take.
Choice Damiso is a lawyer by profession and programme specialist for Gender for the United Nations Population Fund (UNFPA) here in Zimbabwe. UNFPA support the Government of Zimbabwe to implement a number of programmes on gender-based violence prevention and response. She can be reached at [email protected]