The Constitutional Court has now found that any marriage entered into from Wednesday this week that involves a person under the age of 18, under any law, custom or religious rite, is invalid, that is this marriage has never taken place and is totally null.
The nine judges, in their unanimous ruling, found that such marriages went against provisions in our new constitution, but interestingly they went further, noting that studies from around the world found that there were frequently horrific consequences of a marriage involving a child. In other words they not only cited the constitutional safeguard, but made it clear that they approved of this safeguard, that it was not just a minor matter that could be changed by an amendment but that it set a needed fundamental right.
One direct result of this ruling is that child marriages are now a thing of the past. But the results of the judgment go further, overturning a large number of customs and traditions of many cultures. No one able to contract a valid marriage now requires permission from anyone to do so. While most people would like their families to bless their marriage, there is no legal requirement for anyone, except the couple themselves, to approve of such a marriage.
The court also removed an escape clause in the present legislation allowing the Minister responsible for justice to approve a marriage where one or both parties was under the required age. This was put in place decades ago largely to ensure that a child was born legitimate. But other law changes have removed all legal problems that illegitimacy used to attract, so the safeguard is not necessary.
What is now required is changes to our legislation governing marriages, which allow a girl aged 16, but under 18 to contract a marriage with the permission of their legal guardian. Such a marriage is invalid already, but there are no penalties for the parent or guardian who permits such an invalid union. These are needed, and Parliament may well want to tighten up the existing penalties for those involved in arranging an under-age union or those pushing a child, or an adult for that matter, into marriage.
More is of course necessary. Rights that are not known are useless, so everyone in Zimbabwe needs to know their rights. Mechanisms have to be put in place so that those being forced into marriage can get help. Fortunately, almost all religions and churches do teach that both parties have to agree to a marriage, so there are few fundamental difficulties in a united campaign.
There will always be those who quote custom, tradition and religion to try and undermine a right.
They have to understand that all cultures change. Slavery was permitted almost everywhere up to near the end of the 18th century, and then over the course of the 19th century was banned almost everywhere, the last holdouts doing this in the 20th century. Over the course of the 20th century racial discrimination moved from being an acceptable, if distasteful, practice to something seen as inherently evil. In 1900 only New Zealand gave women the vote; in 2000 women could vote everywhere, except in a handful of monarchies on the Arabian peninsular and now these are changing as well.
Humanity does move forward. As our most senior judges have noted, we learn from what we have been doing wrong in the past, and stop doing that wrong.
The Constitutional Court has given us all a strong lead. We must now go forward and turn that legal right into a practical right for all.