Another Huge leap...
As the legendary Peter Tosh wrote and sung, "Get up, Stand up... Stand up for your rights!!" so inspired and timely can such vigorous chants be immortalised within the legal fraternity and broader social realm at this very moment. A perennial dark cloud had been hanging over the lives of all female children in Zimbabwe.... Until a select group of citizens stood up, and boy did they fight! Wrestling through the Constitutional Court, and represented by one of the leading lawyers in the country the court in turn, exercising its most supreme authority proved itself indispensable to the Human rights community by decisively discarding the law that permitted child marriages. 'Elation' as a word does not adequately capture the atmosphere that females, human rights organisations and the progressive legal community were in, at the end of court proceedings on 20 January 2016 at Mashonganyika building. The male child has also been a victim, and indeed we celebrate with him too, for nothing is enviable if it is done against one's will. However the focus is on the female child, who has more to gain from the decision than her male counterpart, in as far as breadth and depth of impact are concerned. For the whole country it was another positive development, a step in the right direction by the judiciary. Something for the legislature and the executive to note, with keen attention. The article will express an all round understanding of the effect of the milestone decision by the Constitutional court, with a firm but justified bias toward the gains the female child will make from the decision.
Mudzuru and Another v The Minister of Justice, Legal and Parliamentary Affairs and 2 others1
I do not want to dwell much on this case as a common law precedent and a legal instrument. However it is unfair to speed past the details of this case as it is through it that the birth of this new dispensation comes. The case had two female (teenage) applicants who were once child wives and are respective teenage mothers. Through the assistance of the non-governmental organisation, Veritas, the applicants brought their case before the Constitutional court and not without resistance. The respondents in the matter first challenged the right of the applicants to bring the matter before the court, locus standi. The court dismissing the respondent's argument was guided by section 85(d) of the constitution which allows any person to approach the courts alleging that a fundamental right has been violated, on the basis of such allegation being in the public interest. The applicants contended that section 22 (1) of the Marriage Act was unconstitutional as it was inconsistent with section 78(1) as read with section 81 of the constitution. The court ultimately ruled in favour of the applicants. In the process it struck down section 22(1) of the Marriage Act. Various considerations were canvassed in the lengthy judgement in excess of 50 pages.
The Dark Cloud
For years, the female child has been abused. One variety of this abuse came in the form early child marriages most of which were without the consent of the child. If there is an argument for possible consent, which I hesitate to speak on, it can be discussed in another forum. The female child was used as a tool, as a resource, as a prop, a sex symbol and the cloud was getting darker. Maureen Sibanda2 notes that about 21% of children (mostly girls) in Zimbabwe are married before the age of 18. For a Human rights infraction, that is an alarming statistic. Most of these child marriages have been practised by the rural community. The major drivers therein being poverty, religious practices, cultural exercises and outright callous patriarchy. There is no telling whether this statistic was to increase or not. One Shudders to think about it. Judging by the divorce rate in the country (the Judicial service commission reported just over 2 200 decimated marriages in 2015 alone), marriage is no easy commitment. Even the best of us fall by the wayside when confronted by the unending hassles of marriage. It is unconscionable to throw a minor into the clear abyss and doldrums of the 21st century marriage.
The Marriage Act3 in section 22(1) allowed females of the ages of 16 and older to be lawfully married. The legal effect of this was to be ultra vires the prevailing law as stated by the Constitution in section 78 and 81. The most sullen of all violations. In essence, from the day of publication of the current constitution, section 22(1) of the Marriage Act became void. What the Constitutional court did was to confirm this development and to urge the law makers to prepare legislation that directs the legal framework of marriage as envisaged by the constitution and also to go as far as possible in curtailing conduct that is unrepentant with regards to the abolition of child marriages. It is however important to understand how far the constitution goes in denouncing oppressive marriage systems.
The Constitution on marriage
1. Beginning in section 26 of the Constitution4 the State (being the full complement of the executive, legislature and judiciary) is expected to take all necessary measures to ensure:
(a) No marriage is entered into without the full consent of the intending spouses
(b) Children are not pledged into marriage
The section unequivocally urges the state to take action in ensuring availability of consent in all marriages and to avoid children being pledged in marriage. Before the forceful decision of the highest court in the land, the words in the constitution were as lifeless as the ink exposing them. I am of the view that the state really had to be put to task concerning the abuse of female children who were forced into marriage. Indeed as an issue with legal roots, the judiciary was entitled to play a commanding role in the outcome of events up to this stage. Considering that the constitution was operative in 2013, it is really sad that many more child marriages took place in the existence of the supreme instrument that outlawed such practice. It certainly flies in the face of justice that lawlessness overstays its welcome. In future may the responsible authorities retrace their steps and administrative priorities when dealing with sensitive issues that bedevil our society.
2. Section 78 (a) and (b) of the constitution speak of the exclusive right of 18 year olds and older (my emphasis) to found families as well as speaking against forcing people into marriages. The section, titled 'marriage rights' addresses the points that only from the age of 18 years (which happens to be the age of attaining legal majority) does one have the right to marry and begin a family.
The section formed the crux of the argument in the Constitutional court. The elementary concepts that are taught in the early lectures of law school include the point that, in the hierarchy of laws, the Constitution is emphasised to be at the top. To be supreme. Section 2(1) of the Constitution states that the constitution is the supreme law of the country and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. If any law goes against the provisions of the Constitution in letter and in principle, such law is void, to the extent of the inconsistency. What this entails is that if any law contravenes the constitution, that law should be viewed as if it did not exist. Simple as that. Since 2013 when the Constitution became operative, under age marriages became void. There really should not have been any need for the constitutional court to strike down any legislation; the legislature should have done that a while back. Understandably however, issues of State do not take days or weeks even to settle. To be fair to them, there is a task force in place realigning about 400 laws with the constitution through the Ministry of Justice, Legal and Parliamentary affairs. It is just the outcome of the realignment that we are not privy to. This decision gives a hint on what to expect on the realignment of the Marriage Act5 and Customary Marriages Act6.
The Broad Effect of the decision
1. On a sort of judicial legislation
The decision of the Constitutional court firstly struck down section 22(1) of the Marriage Act which in the main, provided for a minor girl (16 years of age) to be lawfully married. Not much can be added to this. There will no longer be any law that permits the marriage of any individual under the age of 18 years. If anyone does attempt to do so, the marriage will not have the force of law. The marital rights and benefits that accrue to legitimately married people will be deemed to be inapplicable to such persons. Such rights as those of surviving spouses in inheritance law as seen in the Administration of Estates Act7 and the Deceased Estates Succession Act8 cannot be availed to them. This will present much more acrimonious consequences in the long term that can plunder a lifetime of investments.
2. On Customary practices
The Constitutional court has certainly altered the various customary practices that were existent in the country in as far as customary marriages are concerned. Practices such as marrying off a girl child for the purposes of 'kuripa ngozi' (to appease an evil spirit in the family) shall no longer be lawful. The Customary Marriages Act9 had been silent on the lawful age to marry under customary law leaving a huge gap for exploitation of the minor boy or girl. Over the years alteration of customary law and customary practices in the country has been effected in a slow but measured approach. Most of customary practices are being viewed as oppressive under modern human rights jurisprudence. In as much as we celebrate this decision, we need to ask the question, what then is going to be left of our custom, culture?
3. On the 'illegality' conundrum
The decision although outlawing child marriages and making them illegal, it did not make child marriages criminal. For the ordinary person who is not familiar with the law, this is a bit strange but it is possible. For a particular conduct to be criminal, the legislature (law maker) must enact a law that makes the conduct which in this case will be marrying under the age of 18 years criminal. This is a suggested mechanism to ensure the full protection of the girl child after the decision. It however has its own difficulty. For the law maker, the law must qualify a series of interrogations before it can pass the theoretic test of the good law checklist. One of those interrogations will be, if marriage under the age of 18 is unlawful, how can one be prosecuted for doing something that is not there? At least in the eyes of the law. It does sound paradoxical, and these are the preliminary issues that make the law complicated, at least to the layman. The law maker will have to couch the crime in such a manner that captures all the requisite procedures to enter a marriage whether it is a civil marriage, customary marriage or unregistered customary union. This is no easy task. The procedures for contracting valid marriages under the different marriage regimes in the country are different and it will be a cumbersome task to create a provision that will allow effective prosecution. But it is not impossible and the lawmaker is still allowed various alternatives in couching the crime, although the practical effectiveness may die down with each improvisation.
4. On African Judicial progressiveness
Zimbabwe now follows a select band of African Countries that have abolished Child marriages. In Africa, the community structures and the deep cultural involvement has made it a major decision to abolish child marriages. In 2012 Swaziland abolished Child marriages through a statute called Children's Protection and Welfare Act10. In Swaziland they did go as far as making child marriages a crime. This development will affect life in the cultural practices of many African societies. It is difficult to quantify without a proper survey the extent of the impact on the Zimbabwean cultural communities but undeniably there shall be a significant impact. Maybe this will push our remote communities to develop a more vivid imagination for the prospects that life offers them than the archaic but dominant peasant-agrarian and polygamous routine. If looked at in the right economic development context, girls can now, in the long term acquire an education than be resigned to the 'profession' of child bearing and competitors in a vicious polygamous set up for some communities. This could be an outlet for Zimbabwe and African countries in as far as economic development is concerned. The thousands of entrepreneurs, scientists, sports persons and other executives that were potentially going to be lost in forced marriages may be redeemed. Our communities are going to be forced to change their lifestyle of living and they have to be persuaded to adopt a more robust entrepreneurship, education and innovation model. There is much to celebrate in such a possible turn of events.
5. On Discrimination and Non-equality
The Constitutional court removed the discrimination that was couched in section 22 (1) of the Marriage Act. For males, the lawful age to contract a civil marriage was 18 years, but for females, the lawful age was 16 years. This is a controversial point. The discrimination is clear in terms of the age differentiation. It is the manifestation of that discrimination that can be questioned. On one hand, it appears that there is a psychological argument that females mature earlier than males hence at the age of 16 a girl can carry the weight of marriage. On the other hand females decry the law in that it is a snare and a stumbling block to the development of the female child. Once marriage is permissible at the age of 16, savage men with self serving interests can exploit innocent children who have the potential to achieve much more certificates than the marriage certificate. Another argument advanced for marriage at 16 years is a corresponding assessment of the effect of the prevailing age of sexual consent in the country. Sex is traditionally and morally endorsed as a privilege of marriage. Therefore if the country's age of consent is pegged at 16 years there was a mental mortgage on the law maker to allow females to be lawfully married at 16 years to avoid perpetuating the perceived social ill of sex outside of marriage. The discrimination then would still exist because, if females are capable to consent to sexual intercourse at 16 years unto marriage how does it become impossible for a 16 year old boy to consent unto marriage?
The law governing discrimination is embodied in the Fundamental human rights chapter of the Constitution. Section 56 of the Constitution deals with the right to "Equality and Non-discrimination". In particular section 56(3) states that no person must be unfairly discriminated on the basis of age... etc. Section 56(4) goes on to say that unfair discrimination occurs when a person is directly or indirectly subjected to a condition that others are not subjected to. This, in my view makes the relevant section of the Marriage Act discriminatory. This was one of the main points used to argue against the unconstitutionality of section 22(1) of the Marriage Act. The age distinction in the ability to contract a valid marriage was argued to be unfairly discriminatory and had adverse effects in the long run to the girl child as already pointed out.
6. On International legal instruments adherence
This is a special area of the law in a global context. Not only the human rights infraction of underage marriages, but the fact that a judicial system is now adhering to set global principles on various forms of law. The Mudzuru case is a classic example of fully incorporating international conventions/treaties as guiding tools in arriving at justice. There are various international conventions that were touched on in this case that persuaded the court in abolishing Child marriages. One such instrument is the Convention on the rights of the Child (CRC)11. Article 3 of the convention holds that in all cases involving the child, the best interests of the child must be of paramount importance. The same provision is present domestically in section 81(2) of the Constitution. This provision seizes the court's flexibility and narrows their focus to finding what is best for the child. A child is already defined in section 81(1) as every boy and girl who is below the age of 18 years. The court does not need to proliferate issues. Identifying the best interests of the child, in my view involves a holistic analysis of the factors that must be incorporated in assuring a successful development of the child. This is what the court took in consideration.
7. On social tendencies
This decision will have far reaching social implications. The most significant will be on the practice of 'kutizira'. This practice involves an impregnated female eloping to the homestead of the man responsible for the pregnancy. Whether there is love or lack thereof between the two is a different consideration. The practice is common amongst the African societies as there is a strong belief that a child should grow up in the company of the conceiving parents. As well as the belief that once a female gets impregnated, the responsible 'practitioner' should equally be responsible to handle his family affairs. With the decision by Deputy Chief Justice Malaba, 'kutizira' will no longer be an option for a female who will be impregnated whilst she is under the age of 18. In fact in the judgement, the Deputy Chief Justice himself urges parents of such a female child to take care of the two children. Their daughter and the grandchild. Is this not a great price to pay for the pleasures enjoyed by a seductive 'gentleman' who probably had no real and lasting affection for the female child? Of course we understand that the Maintenance Act12 provides for the Fathers of children who are out of wedlock to provide a sum called maintenance which caters for the upbringing and welfare of the child until they attain majority status at the age of 18 years. But a realistic and practical approach will show that more often than not, more is done in the environment that has custody of the child despite the existence of the usually paltry maintenance amount.
The situation is placed over the edge when one thinks of the potential outcome of this scenario. The constantly scheming society usually comes up with ways to go around whatever 'legal' walls that may be erected in their path. Some may resort to co-habiting to cure this 'defect'. Co-habiting is certainly not a marriage and in the current legal context it is also not unlawful. The lawmaker will have to be alive to these apparent diversions that can bring much more hardship than reprieve.
We have witnessed another land mark ruling by the barely 3 year old Constitutional court. The legal perspective is important and I have attempted to bring it out in as far as it is relevant. Most of my concern however lies with this open door that had been locked for years. The Mudzuru case that has delivered a multitude of unsuspecting young female girls will go down in history as the moment; the girl child was exonerated from the arduous under age marriage. As shown in the main body of this article, the decision is coming with a trail of dripping blood and rightly so. It is difficult to slay a giant such as underage marriage and not be wounded in the process. But the wounds will heal and even in their existence, there is much more to gain than what has been lost. Much more arguments and opinions will be made in the social scene hackling down the judgement for the practical realities that are coming from this point going forward. However they can never outweigh the lease of life that has been granted to the girl child. Now, young ladies, be vigilant! Just as the Israelites excoriated Moses for leading them out of Egypt's Bondage and declaring that slavery was better, you too may moan for your own Egypt in the hands of aged polygamous men, loveless households and perpetual poverty with perennial child bearing. Do not be led astray by the seductive man and certainly don't play on the slippery slope of inviting him to do as he pleases. The result will be more precarious than it was before the abolition of child marriages. Empower yourselves and realise the direction of the global wind and sail with it. But today, I celebrate with you!
1 Constitutional Court of Zimbabwe [CCZ] 12-15
2 The Research and Advocacy Unit: "Married too soon: Child marriages in Zimbabwe" 2011 at page 3
3 Chapter 5:11
4 Constitution of Zimbabwe Amendment No. 20
5 Chapter 5:11
6 Chapter 5:07
7 Chapter 6:01
8 Chapter 6;02
10 Swaziland statute 
11 United Nations Convention on the rights of the child
12 Chapter 5:09
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.