The Constitutional Court has outlawed child marriages by ruling that no child in Zimbabwe should marry before attaining 18 years. Deputy Chief Justice Luke Malaba ruled that the supreme law of the country sets 18 years as the age of majority, hence no child should marry before that age.
He made the ruling in a matter in which two women Ms Loveness Mudzuru and Ms Ruvimbo Tsopodzi were challenging a Section of the Marriages Act that allows children under 18 to marry.
The court also struck down Section 22 of the Marriages Act (chapter 5:11) which allows child marriages.
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.
Mudzure and Tsopodzi 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.
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.