Daniel Nemukuyu Senior Court Reporter
THE Constitutional Court has ruled that — with immediate effect — no child under the age of 18 should enter a valid marriage in terms of the Constitution, a development that is expected to end the scourge of child marriages.
In a landmark 56-page judgment handed down yesterday, Deputy Chief Justice (DCJ) Luke Malaba struck down Section 22 (1) of the Marriages Act (Chapter 5:11) which allows children of 16 years to marry, saying it was unconstitutional.
The nine-member bench led by DCJ Malaba declared that Section 78(1) of the Constitution sets 18 years as the minimum age of marriage and that any law to the contrary was unconstitutional.
The operative part of the judgment reads:
“It is declared that Section 78(1) of the Constitution of the Republic of Zimbabwe Amendment Number 20 of 2013 sets 18 years as the minimum age of marriage in Zimbabwe.
“It is further declared that Section 22(1) of the Marriages Act (Chapter 5:11) or any law, practice or custom authorising a person under 18 years of age to marry or to be married is inconsistent with the provisions of Section 78(1) of the Constitution and therefore invalid to the extent of the inconsistency.
“The law is hereby struck down. With effect from 20 January 2016, no person, male or female may enter into any marriage, including an unregistered customary law union or any other union including one arising out of religious rite, before attaining the age of 18 years,” ruled DCJ Malaba.
The other eight judges of the Constitutional Court who heard the matter concurred with the judgment, making it a unanimous decision of the court.
The case was brought up by two women—Ms Loveness Mudzure (19) and Ms Ruvimbo Tsopodzi (18) who indicated to the court that they were victims of child marriages and were now fighting for the rights of the girl child.
They engaged the services of constitutional lawyer Mr Tendai Biti of Tendai Biti Law Chambers, who successfully convinced the bench that the marriage law and the practice complained of was a violation of the children’s rights.
Before Sections 78(1) and 81(1) of the Constitution came into effect, Section 22(1) of the Marriage Act (Chapter 5:11) provided that a girl who had attained the age of 16 was capable of contracting a valid marriage.
The 16-year-old girl, according to the Act, had to obtain the consent in writing to the solemnisation of the marriage from her legal guardians.
A boy, according to the struck down law, would marry at the age of 18, thereby showing discrimination between girls and boys.
For a boy under 18 years and a girl under 16 to marry, they required authority from the Justice Minister in terms of the struck down law, which allowed child marriages.
In coming up with the landmark judgment, the court considered various local and international studies that proved child marriages were evil.
“There was overwhelming empirical evidence of the horrific consequences of child marriage. Study after study exposed child marriage as an embodiment of all evils against which the fundamental rights are intended to protect the child.
“The studies showed that where child marriage was practiced, it was evidence of failure by the State to discharge its obligations under international human rights law to protect the girl child from the social evils of sexual exploitation, physical abuse and deprivation of education, all of which infringed her dignity as a human being,” ruled the court.
Consideration of the changes in international rights law on marriage and family relations over decades, shows that Section 22(1) of the Marriage Act was born out of lack of commitment to the protection of the fundamental rights of the girl child.
Churches and other religious sects that allow child marriages were also barred from such practices in terms of the Constitution.
“Section 78(1) of the Constitution permits of no exception for religious, customary or cultural practices that permit child marriage, nor does it allow for exceptions based on the consent of public official, parents or guardians,” the court ruled.
Marriage, in terms of the supreme law, was a right only enjoyed by adults.
“The rights to marry and found a family are rights to be enjoyed by adults and not children. In effect, a person aged below 18 years has not attained full maturity and lacks capacity to understand the meaning and responsibilities of marriage,” the judge ruled.