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Blessing Mushohwe Correspondent

Earlier this year, our Constitutional Court gave us something long overdue to smile about — outlawing of child marriages. This was a culmination of critical complementary events occurring since 2014, that include the release of the Multiple Indicator Cluster (MICS) 2014 results that showed an increase in child marriages in Zimbabwe, the launch of the African Union campaign to end child marriages in April 2014 the long drawn constitutional challenge on child marriages in Zimbabwe from October 2014, the Motion in Parliament to end child marriages since January 2015, the meeting of the SADC Parliamentary Forum and drafting of the SADC Model Law on Child Marriages in August 2015 and indeed more importantly Zimbabwe adopting the AU stance and launching its own campaign to end child marriages on July 31, 2015.

The result either directly or indirectly was the Constitutional Court ruling declaring that child marriages are unconstitutional and therefore unlawful in Zimbabwe. Indeed those in the child rights sector and the nation at large literally took to the streets in celebration and justifiably so.

However, a deeper look into the judgment and the environment that it will have to be enforced in brings one to a rude awakening that while this single battle has been won, there is still a whole lot more to be done if the country is indeed going to truly win the war to end child marriages.

As regards the law itself, there clearly is need now for stakeholders to begin lobbying the powers that be, particularly our legislators, to urgently amend the relevant statutes in the form of the Criminal Code, the Children’s Act which is currently under review, the Marriages Act and the Customary Marriages Act, among others, to reflect the unlawfulness of child marriages as a criminal offence and to clearly indicate the sanctions attached to those who contravene the said law.

As of now, sanctions against child marriages can practically only be enforced through section 3(1)(I) of the Domestic Violence Act which defines child marriage as an offence and section 4 of the same Act which prescribes a sentence of a fine or imprisonment for a period not exceeding 10 years. While these sections can be used in the meantime, there evidently is need for alignment of all other statutes mentioned above to unambiguously criminalise the act for avoidance of any doubt.

Still on laws, the judgment opened up other areas which now require urgent consideration such as the issue of Age of Sexual Consent which remains at 16 while marriage is now at 18 years. The question that arises is whether as a society, with this judgment, we have effectively allowed our children to legally have unrestrained sex from 16 years with whoever, even a 60-year-old man, and even possibly getting pregnant from such, as long as the sexual activity does not lead to marriage? If so, are we then not going to see a situation whereby the sexual manipulation and exploitation that used to happen in child marriages still continuing as before with the only difference being that this time around the man no longer fears being forced to marry the girl because the law does not allow it?

Does this not further burden the girl child especially if the sex results in pregnancy while at the same time seemingly encouraging irresponsible behaviour by men?

In considering solutions to this issue, caution must however, be on the temptation to simply raise the age of sexual consent to 18 years as this has its own practical complications and possible child rights violation issues thereto.

The law also needs to be clear on what happens if the child marriage is between children who are both under 18 years and are both mutually agreeing to it. In light of all these unanswered questions and more, it is clear that our lawmakers still have work to do in order for the child marriages ban to be legally enforced without negative side effects especially on the girl child that it mainly seek to protect.

Having dealt with the law, it should however, also be critically understood that generally laws alone do not end criminal activities. In fact, it is human nature to become defensive and rebellious towards rules and the same should be expected even of this noble judgment against child marriages.

There is need from the onset to understand that this ban will have to be enforced in communities where children are often married off mostly by their elders in religious settings or in traditional practices for various reasons. As such, community engagement, advocacy and awareness in such settings should become the crux of the fight against child marriages.

A crucial part of this awareness raising should be explaining the unlawfulness of child marriages and the legal consequences for those who commit the offence in terms of the Constitution and other laws mentioned above. But more importantly, the awareness and advocacy should emphasise on developing an understanding with communities on what child marriage is, why it is wrong for a child to be married, why it is good for a child not to get married early and critically what can community members do when they witness child marriages in their communities. With such a community engagement approach, community members participate in ending child marriages out of understanding and appreciation of the benefits of not marrying off their children rather than out of fear of the law alone.

Having done the above and more, the nation however must not lose sight of the fact that ending child marriages in itself is not a complete victory. Even if child marriages are ended to 0 percent in Zimbabwe, the real battle will still remain in the form of sexual abuse or exploitation of children in the form of rape, indecent assault, sexual grooming, and child prostitution, among others. Let’s not forget that as a nation, we still have a lot more to do in protecting our children against the broader issue of child sexual abuse.

Blessing Mushohwe is an independent Child Rights and Policies Consultant. He writes in his own capacity and can be contacted on: [email protected] <mailto:[email protected]>.