MERITS
The respondents case on the merits is that section 78(1) of the Constitution does not set the age of eighteen years as the minimum legal age of marriage.
They argued that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.” The subsection does not, in express terms, give the person concerned the 'right to marry'.
According to the respondents, section 22(1) of the Marriage Act, or any law which authorizes a girl child who has attained the age of sixteen to marry, is not inconsistent with section 78(1) of the Constitution.
The applicants took issue with the literal interpretation of section 78(1) of the Constitution by the respondents. They contend, that, the meaning of section 78(1) of the Constitution can only be determined on the basis of a broad, generous, and purposive interpretation of its provisions.
INTERNATIONAL CONVENTIONS AND TREATIES
Context of Section 78(1) of the Constitution and Section 22(1) of the Marriage Act
The court is faced with the question of interpretation of section 78(1) as read with section 81(1) of the Constitution. It is also faced with the question of interpretation of section 22(1) of the Marriage Act and the effect of the application of section 78(1) of the Constitution on its meaning.
Section 46(1)(c) of the Constitution imposes an obligation on a court, when interpreting any provision of the Constitution contained in Chapter 4, to take into account international law and all treaties and conventions to which Zimbabwe is a party.
Both section 22(1) of the Marriage Act and section 78(1) of the Constitution were born out of provisions of international human rights law prevailing at the time of their respective enactment.
The meaning of section 78(1) of the Constitution is not ascertainable without regard being had to the context of the obligations undertaken by Zimbabwe under the international treaties and conventions on matters of marriage and family relations at the time it was enacted on 22 May 2013.
In deciding whether section 22(1) of the Marriage Act, or any other law which authorises child marriage, infringes the fundamental rights of girl children enshrined, guaranteed, and protected under section 81(1) as read with section 78(1) of the Constitution, regard must be had to the contemporary norms and aspirations of the people of Zimbabwe as expressed in the Constitution.
Regard must also be had to the emerging consensus of values in the international community, of which Zimbabwe is a party, on how children should be treated and their well-being protected so that they can play productive roles in society upon attaining adulthood.
The object of the interpretation of section 78(1) as read with section 81(1) of the Constitution, and of section 22(1) of the Marriage Act, should be to ensure that the interpretation resonates with the founding values and principles of a democratic society based on openness, justice, human dignity, equality and freedom set out in section 3 of the Constitution, and regional and international human rights law.
In considering the meaning of section 22(1) of the Marriage Act as a norm of behaviour towards children, the court has to take into consideration the current attitude of the international community, of which Zimbabwe is a party, on the position of the child in society and his or her rights.
Section 78(1) as read with section 81(1) of the Constitution, testifies to the fact that Zimbabwe is a signatory to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).
By signing these documents, Zimbabwe expressed its commitment to take all appropriate measures, including legislative, to protect and enforce the rights of the child as enshrined in the relevant conventions to ensure that they are enjoyed in practice.
Section 78(1) as read with section 81(1) of the Constitution must be interpreted progressively.
Child marriage is defined by the United Nations Children's Fund (UNICEF) (2011) Child Protection from Violence, Exploitation and Abuse Report as “a formal marriage or informal union before age 18.”
The term “child marriage” covers marriages of persons under the age of 18 years.
The minimum age of marriage was prescribed by the Committee on the Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW Committee) to be 18 years.
This was a result of the definition of “child” by Article 1 of the Convention on the Rights of the Child (CRC) which came into force on 2 September 1990.
Article 1 of the Convention on the Rights of the Child (CRC) defines 'a child' to mean “every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier.”
Section 22(1) of the Marriage Act was enacted in 1965 as a response to omissions and exceptions that existed in the international human rights provisions on the protection of children that existed at the time.
The provisions that existed at the time were found in Article 16 of the Universal Declaration of Human Rights (UDHR) and the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention).
The common feature of the many conventions was the failure to specify for States Parties the minimum age of marriage as a means of protecting children. They left the matter exclusively to domestic law.
It is striking how poorly international human rights conventions addressed the practice of child marriage.
Apart from their general lack of vision, the conventions, not being self executing, constituted promises by the adopting parties to enact domestic legislation and adopt other measures to achieve the desired objectives.
Until 1990, almost all the conventions which contained provisions on marriage avoided specifying a mandatory minimum age of marriage for the States Parties.
While many conventions provided that marriage must be freely consented to by the bride and groom, there was no recognition of the special vulnerabilities of children where “consent” could be easily coerced or unduly influenced by adults: see Elizabeth Warner “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004) Article 1…,.
Under Article 16(1) of the Universal Declaration of Human Rights (UDHR), the United Nations General Assembly proclaimed that only men and women of full age, without any limitation due to race, nationality, or religion, have a right to marry and to found a family.
The United Nations General Assembly, by necessary implication, declared that a person who had not attained the age of majority could not exercise the right to marry and to found a family.
Article 16(2) of the of the Universal Declaration of Human Rights (UDHR) proclaimed that marriage shall be entered into only with free and full consent of the intending spouses. By necessary implication, a person below the age of majority was not capable of giving free and full consent to marriage.
Marriage was to be for adult persons only, and, consent to marriage given on behalf of the intending spouses, was prohibited.
The problem with Article 16(1) and (2) of the Universal Declaration of Human Rights (UDHR) was not only that it was a declaration with no binding force on Member States, it also did not specify what the age of majority should be.
In 1962, the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) was expected to resolve the issue of the standard age of majority for purposes of marriage.
The Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) required States Parties to take legislative action to specify a minimum age for marriage. It stipulated, that, no marriage shall be legally entered into by a person under the minimum age, except where a competent authority granted a dispensation as to the age, for serious reasons, in the interest of the intending spouses.
According to a non-binding recommendation accompanying the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention), States Parties were directed not to specify a minimum age for marriage less than 15 years. States Parties were permitted to specify a minimum age for marriage by reference to what they considered to be the age of puberty.
The problem with the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) is that it did not specify for States Parties a minimum age of marriage. It left States Parties free to set their own minimum ages for marriage.
As a result, States Parties set minimum ages of marriage as low as sixteen years for girls whilst setting different and usually higher ages for boys.
The other problem was that the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) created exceptions permitting marriages of girls below the minimum age where Government officials approved of the marriages.
The effect of these provisions was that once a girl was married, however young she was, she was treated, under domestic law, as an adult.
Laws for the protection of children no longer reached her.
It was in the context of the omissions and exceptions in the provisions of international human rights law that the Marriage Act was enacted.
Section 22(1) of the Marriage Act prohibited marriage of a boy under the age of eighteen and of a girl under the age of sixteen except with the written permission of the Minister when he or she considered such marriage desirable.
The written permission, which was intended to be granted prior to solemnization of the marriage, could be granted after the solemnization where the Minister considered the marriage desirable and in the interests of the parties concerned.
Section 22(1) of the Marriage Act clearly permitted marriage of a girl who had attained the age of sixteen years.
Section 20(1) of the Marriage Act required that consent, in writing, be given to the solemnization of the marriage by the legal guardians of the girl.
Legal guardian was defined to include the mother of the girl where she and the father of the minor were living together lawfully as husband and wife or were divorced or were living apart and the sole guardianship of the minor had not been granted to either of them by order of the High Court or judge thereof.
Consent to marriage could be granted by a judge of the High Court where the consent of the legal guardian could not be obtained by reason of absence, or inaccessibility, or by reason of his or her being under any disability.
Section 21(1) of the Marriage Act provided that where a marriage which required the consent of a legal guardian, or legal guardians, had been solemnized without such consent, it became a valid marriage, if, within a period of six weeks, calculated from the date on which a legal guardian or legal guardians first had notice of such marriage, he or she or they did not make an application to the High Court for an order setting aside the marriage and declaring it void.
What is clear from the interpretation of the relevant provisions of the Marriage Act is that once a child got married, with the written permission of the Minister, and a girl who had attained the age of sixteen got married, they were treated as persons of full age to whom protection of the rights of the child was lost.
On 3 September 1981, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) came into force.
On the principle of equality of men and women, Article 16(1) provided that States Parties shall take all appropriate measures to ensure that men and women have the same right to enter into marriage and that each spouse has a right to enter into marriage only with his or her free and full consent.
By necessary implication, Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) reserved the right to marry and to found a family to men and women of full age.
Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides:
“2. The betrothal and the marriage of a child shall have no legal effect and all necessary action, including legislation, shall be taken to specify a minimum age of marriage and to make the registration of marriages in an official registry compulsory.”
Although Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibited child marriage, section 22(1) of the Marriage Act could not, at the time, be condemned for permitting child marriage in the absence of a specific provision in the international human rights law setting a minimum legal age for marriage.
Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) did not even define “child”.
The problem of lack of definition of “child” in Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was solved by the coming into force, on 2 September 1990, of the Convention on the Rights of the Child (CRC).
In Article 1, the Convention on the Rights of the Child (CRC) provided that:
“For the purposes of the present convention, a child means every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier.”
The Convention on the Rights of the Child (CRC) makes provision for the protection of the rights of the child.
Article 2 of the Convention on the Rights of the Child (CRC) prohibits “discrimination” of any form against children, including on the basis of sex.
Article 3 of the Convention on the Rights of the Child (CRC) provides that “in all actions concerning children, the best interests of the child shall be a primary consideration” and that States Parties must “undertake to ensure the child such protection and care as is necessary for his or her well-being.”
The Convention on the Rights of the Child (CRC) also provides, that, all children shall have the right to protection from all forms of physical or mental violence, injury, abuse, maltreatment or exploitation; the right to health; the right to education; the right to protection from abduction, sale, or trafficking; the right to rest and leisure; the right to protection from economic exploitation; and the right to protection from all forms of exploitation prejudicial to the child's welfare.
In Article 24.3 the Convention on the Rights of the Child (CRC) provides that States Parties shall take measures to abolish “traditional practices prejudicial to the health of children.”
Although the Convention on the Rights of the Child (CRC) did not specify the age of eighteen as the minimum age for marriage, in defining “a child” it provided the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee and the CRC Committee with the basis for declaring the minimum age of marriage to be eighteen years.
This is because Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides, in express terms, that the “marriage of a child shall have no legal effect.”
ELIZABETH WARNER, in the article “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004)…, highlights the shortcomings of the Convention on the Rights of the Child (CRC) in these terms:
“The Convention on the Rights of the Child, intended as a comprehensive treaty on the rights of children, contains no explicit provision on marriage, which is odd, if not downright baffling (perhaps the drafters thought the subject was already covered by the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriages Convention)).
Article 1 of the Convention on the Rights of the Child provides that 'a child means every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier'.
The word 'majority' is deliberately not defined in the Convention on the Rights of the Child and is left to local law to determine.
Consider how problematic this provision is in the case of a married female child.
In a society where a woman's value is defined entirely by reference to her marital status and her ability to bear children, a married female is likely to be viewed as having attained adult or 'majority' status regardless of her age, all the moreso once she has borne a child of her own.
One could therefore argue, that, the entire Convention on the Rights of the Child becomes irrelevant to her at that point.
And, indeed, many domestic laws explicitly provide that a person attains majority upon marriage, regardless of her age, thus creating an exception to the general 'rule of 18' that eviscerates the Convention on the Rights of the Child mandate where it is most needed.”
The Convention on the Rights of the Child (CRC) has also been criticised for not applying to girls and boys equally, in that, it does not give due consideration to particularly harmful situations that may be specific to either girls or boys.
ASKARI LADAN, in an article titled “The Convention on the Rights of the Child; The Necessity of Adding a Provision to Ban Child Marriages” (1998) 5 ILSA Journal of International and Comparative Law 123, explains that although the Convention on the Rights of the Child (CRC) was “designed to be gender blind” violations that primarily affect boys (i.e. child soldiers) are covered under CRC Article 38.
The same consideration is not given to violations predominantly affecting girls in child marriage.
Askari Ladan points out, that, although the issue of child soldiers may at times impact upon the girl-child, the primary target of concern is the boy–child.
Similarly, even though the issue of child marriage is of greater concern for girls, it could also apply to boys.
But, the failure of the Convention on the Rights of the Child (CRC) to protect the girl child against a particular practice that is primarily of concern to her is unfair in light of the fact that special consideration is given to an issue where boys are particularly vulnerable.
Such a gap reveals discrimination against the girl-child in the sense, that, the reality of her situation is not taken into account or specifically addressed.
There is need to fully acknowledge that a child's gender can detrimentally affect the realisation of his or her right.
The use of gender–neutral language throughout the Convention on the Rights of the Child (CRC) may have been intended to promote equality and the inclusiveness that was lacking when the language of human rights was written solely from a male perspective.
JEWEL AMOAH, in an article titled “The World on Her Shoulders: The Rights of the Girl–Child in the Context of Culture & Identity” Essex Human Rights Review Vol.4 No.2, September 2007 argues further, that, the inclusion of gender neutral language, on its own, is also not an ideal final solution. She concludes at p15 that:
“The failure to make specific reference to the girl–child and conditions that exacerbate her vulnerability is itself a form of discrimination against her…,. It is not enough that the language simply be gender–neutral; but, where there are specific gendered human rights abuses, then these must be directly addressed.”
Askari Ladan's solution to the Convention on the Rights of the Child's failure to thoroughly consider gender specific rights violations is to have the concept of gender equality established as a peremptory norm. She states:
“The problem of placing girls under the general category of 'child' is alleviated if gender equality is recognised as a peremptory and therefore non-derogable norm. Because it is gender–neutral, the term 'child' as used in the Convention on the Rights of the Child, avoids certain additional violations that are specific to girls only.
Thus, girls sometimes fail to be completely protected under the provisions of the Convention on the Rights of the Child.
By identifying gender equality as a jus cogens norm, the gender neutral language of the Convention on the Rights of the Child will no longer detrimentally affect girls human rights. Instead, girls rights will be protected irrespective of whether the treaty provisions are specific or general since gender equality will be the standard against which violations will be measured.”
It is, however, accepted by the critics, that, notwithstanding its shortcomings, the Convention on the Rights of the Child (CRC), as it stands, is, in many ways, a milestone in child and human rights.
It was after the Convention on the Rights of the Child (CRC) guaranteed specific “Rights of the Child” that child marriage could be viewed as a social evil in terms of its consequences on the girl child.
Study after study began to define child marriage as marriage of “a child” as defined under Article 1 of the Convention on the Rights of the Child (CRC).
The studies showed how child marriage infringed the fundamental rights of the girl–child guaranteed by the Convention on the Rights of the Child (CRC), particularly; the right to education; the right to be protected from all forms of physical or mental violence, injury, or abuse, including sexual abuse; the right to be protected from all forms of sexual exploitation; the right to the enjoyment of the highest attainable standard of health; the right to educational and vocational information and guidance; the right to seek, receive, and impart information and ideas; the right to rest and leisure and to participate freely in cultural life; the right not to be separated from parents against their will; and the right to protection against all forms of exploitation affecting any aspect of the child's welfare.
In 1990, the African Charter on the Rights and the Welfare of the Child (1990) came into force.
Article 21 of the African Charter on the Rights and the Welfare of the Child (1990) is significant enough to repeat here:
“Article 21 Protection against Harmful Social and Cultural Practices
1. States Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth, and development of the child, and, in particular:
(a) Those customs and practices prejudicial to the health or life of the child; and
(b) Those customs and practices discriminatory to the child on the grounds of sex or other status.
2. Child marriage and the betrothal of girls and boys shall be prohibited, and, effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory.”
In clear and un-ambiguous language, Article 21 of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) imposed on States Parties, including Zimbabwe, an obligation which they voluntarily undertook, to take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth, and development of the child.
The African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) goes on to specifically target child marriage as such a harmful social and cultural practice affecting the welfare, dignity, normal growth, and development of the child - particularly the girl child.
The States Parties are placed under a positive obligation to take effective measures, including legislation, to specify the age of eighteen years as the minimum age for marriage.
They are obliged to abolish child marriage.
Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) avoided the omissions and exceptions that the other conventions on human rights, relating to marriage, had permitted States Parties to exploit through local laws that authorized child marriage.
Commenting on the provisions of Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC), ELIZABETH WARNER, in the article “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004)…, had this to say…,:
“This is the most explicit provision of any of the international treaties discussed herein. It unequivocally sets the minimum age of marriage at eighteen and brooks no exception for local, religious, or other cultural practices, nor does it allow for exceptions based upon the consent of a local authority or the parents or guardians of the children concerned.
An Oxfam report optimistically states, that, this law is a reflection of changes in attitudes toward child marriages in recent years. The only drawback to this convention is that there are not more States that are parties to it. Again, one longs for the ability to insert this provision into the Convention on the Rights of the Child (CRC) and the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriages Convention) where it so clearly belongs.”
The provisions of Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) had a direct effect on the views on the validity of sections 20 and 22 of the Marriage Act.
A review of States reports presented to the Convention on the Rights of the Child (CRC) Committee from 1997 to 2004 reveals, that, forty-four States specified a lower age for girls to marry than boys.
In its concluding comments, E/1996/22 (1995)…, the Committee on the International Convention on Economic Social and Cultural Rights (ICESCR Committee) indicated that differences in marriageable age between girls and boys violated provisions of international human rights instruments guaranteeing to girls and boys equal treatment before the law.
In its concluding comment on Zimbabwe, A/53/40 (1998)…, the Committee on the Convention on Civil and Political Rights (ICCPR Committee) expressed the view, based on the interpretation of section 22(1) of the Marriage Act, that, early marriage, and the statutory difference in the minimum age of girls and boys for marriage, should be prohibited by law.
The Government of Zimbabwe was asked to adopt measures to prevent and eliminate prevailing social and cultural practices harmful to the welfare of children.
The comment by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee in General Recommendation 21…, was to the effect, that, provisions such as those of section 22(1) of the Marriage Act, which provided for different ages for marriage for girls and boys, assumed, incorrectly, that girls have a different rate of intellectual development from boys or that their stage of physical and intellectual development at marriage was immaterial.
The Committee recommended that these provisions be abolished.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee, in making the comment in General Recommendation 21…, proceeded on the basis, that, it was common cause that the coming into effect of Article 1 of the Convention on the Rights of the Child (CRC) and Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) rendered provisions such as those contained in section 22(1) of the Marriage Act, and any other law authorizing marriage of a person aged below eighteen years, inconsistent with the obligations of Zimbabwe under international human rights law to protect children against early marriage.
The view held was that the abolition of the impugned statutory provisions would be consistent with the fulfilment by Zimbabwe of the obligations it undertook in terms of the relevant conventions and the Charter.
The question was when the abolition would take place.
The adoption of legislative measures for the abolition of the offending statutory provisions, such as section 22(1) of the Marriage Act, became a compelling social need.
There was overwhelming empirical evidence of the horrific consequences of child marriage.
Study after study exposed child marriage as an embodiment of all the evils against which the fundamental rights are intended to protect the child.
The studies showed, that, where child marriage was practised, 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.
The facts set out here, on the horrific consequences of child marriage, as part of the context for the determination of the question of the constitutional validity of section 22(1) of the Marriage Act, could not fail to have an impact on the conscience of any society that cares about the fundamental values of human dignity, freedom, and equality.
Elizabeth Warner found, that, while the prevalence of child marriage cuts across many different countries with different cultural and religious traditions, certain factors pertaining to the practice were nearly universal.
She found that the marriage of a girl child is almost always arranged by her parents, or guardian, whose desires take precedence over the wishes of the child. The marriage is a bartered transaction, accompanied by payment of a negotiated bride price from the groom's family to the bride's family. In general, the younger the bride the higher the price she will fetch. Girls are usually married to much older men who can afford to pay the bride price. The marriage is immediately consummated and the girl made to start bearing children immediately.
A study by the Division of Policy and Practice of UNICEF titled “Child Marriage and the Law” (April 2007)…, looked at the causes of child marriage. It states:
“Poverty is one of the main determinants of early marriage. In many countries in the Middle East, South Asia, and Sub-Saharan Africa poverty drives families to give their daughters in marriage in the hope that this will alleviate the family's poverty and secure the family's honour when it is at stake.
Although child marriage is seen as a way to escape the cycle of poverty, child marriage in fact worsens the cycle of inter-generational poverty.
Although poverty is one of the underlying causes of child marriage, as parents see this as an opportunity to receive money or save money, child marriage is not restricted to poor families. Child marriage is also one way of preserving wealth in families of a higher socio–economic class.”
The horrific consequences of child marriage were set out in the UNICEF report titled “Child Marriage and the Law” (April 2007)…, with such admirable clarity that it would be an injustice to the study to paraphrase the findings. They are set out as follows:
“4.5 Consequences of Child Marriage
Although child marriage most often stems from poverty and powerlessness, it only further reinforces the gendered notions of poverty and powerlessness stultifying the physical, mental, intellectual, and social development of the girl child and heightening the social isolation of the girl child.
Evidence shows, that, child marriage is a tool of oppression which subordinates not just the woman but her family. Not only does child marriage perpetuate an inter-generational cycle of poverty and lack of opportunity, it reinforces the subordinated nature of communities that traditionally serve the powerful classes by giving a girl child in marriage to an older male.
4.6 Domestic Violence
Child marriage often partners young girls with men who are much older. Girls find themselves in new homes with greater responsibilities, without much autonomy or decision–making power and unable to negotiate sexual experiences within the marriage. Economic dependency and the lack of social support also expose young married girls to other kinds of violent trauma during marriage. A child bride is often regarded as a wife-in-training and is considered to be docile and malleable. This assumption exposes child brides to the greater risk of domestic violence and sexual abuse by her in-law's family. Child brides are also forced into household labour in their husband's families which result in the exploitation of the girl child.
4.7 Trafficking in Women and Children
Since child marriages are contingent upon large amounts of money exchanging hands, child marriage amounts to trafficking in girls. Child marriage often facilitates the trade in women as cheap labour and has led to a rise in trafficking in women and children. Child marriage is also used as a means to conduct prostitution and bonded labour.
4.8 Health Costs
Child marriage reinforces the incidence of infectious diseases, malnutrition, high child mortality rates, low life expectancy for women, and an inter-generational cycle of girl child abuse. Pregnancy-related death is a leading cause of death for girls between 15 and 19 years of age. The dangers of early marriage affect not only the girl child, but the child born to her as well. Premature birth, low growth rate, and poor mental and physical growth are some characteristics of babies born to young mothers.
The real costs associated with women's health and infant mortality are enormous.
Child marriage can have devastating consequences on the sexual and reproductive health of girls: specifically increasing the risk of maternal mortality and morbidity and contracting sexually transmitted diseases - particularly HIV/AIDS. The risk of contracting STI's and HIV rises and married girls are unable to negotiate safe sex, and, are more likely to be married to older men with more sexual experience who are more likely than single men to be HIV positive.
Young girls, particularly those below 15 years of age, face serious reproductive health hazards; sometimes losing their lives as a result of early pregnancies. Those under the age of 15 are five times as likely to die as women in their twenties. The main causes are haemorrhaging, sepsis, pre-eclampsia/eclampsia, and obstructed labour. When a young mother's vagina, bladder, or rectum tears during child birth, it can cause urine or faeces leakage known as obstetric fistula. This can happen when a young woman with under-developed physiology gives birth.
In addition to their lack of power in relation to their husbands or in-laws, girls are further exposed to sexual and reproductive health problems because of their lack of knowledge, information, and access to sexual and reproductive health services, in particular family planning, ante-natal, obstetrics, and post-natal care.
4.9 Education
Countless studies have proven that early marriage is universally associated with low levels of schooling. After marriage, young married girls access to formal, and even non-formal education is severely limited because of restrictions placed on mobility by domestic burdens, child bearing, and social norms that view marriage and schooling as incompatible. Since in most cultures girls leave their parental home upon marriage, parents tend not to invest in the education of daughters because the benefits of their investment will be lost.
Child marriage and lack of access to continued educational opportunities also limit young women's access to employment opportunities. Child marriage is also associated with early widowhood, divorce, and abandonment which often results in “feminization of poverty”. Research has shown that girls with higher levels of schooling are less likely to marry as children.”
Elizabeth Warner observed, that, regardless of how it occurs, early marriage takes a terrible toll on a girl's physical and emotional health.
Because of her age, inexperience, and vulnerability, she is likely to be dominated and controlled by her husband, who has the power to keep her a virtual prisoner. Rape, beatings, and other forms of sexual and domestic violence are common and early and repeated pregnancies are life threatening. Young mothers also face far greater risks of complications in pregnancy because their bodies are not sufficiently developed and infant mortality is far greater among young mothers.
Enactment of Section 78(1) of the Constitution
Consideration of the changes in international human rights law on marriage and family relations over five 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.
Section 78(1) as read with section 81(1) of the Constitution is born out of commitment by the international community, including Zimbabwe, to providing greater and effective protection of the fundamental rights of the child.
Section 78(1) of the Constitution was enacted for the purpose of complying with the obligations Zimbabwe had undertaken under Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) to specify, by legislation, eighteen years as the minimum age for marriage and abolish child marriage.
Under Article 18 of the Vienna Convention on the Law of Treaties, which came into force on 2 January 1980, a State Party is enjoined to hold in good faith and observe the rights and obligations in a treaty to which it is a party.
Zimbabwe had to see through its obligations under the conventions to which it is a party, requiring it to specify eighteen years to be the minimum age of marriage and to abolish child marriage. As the obligations were specific in terms of what the States Parties had to do, the compliance by Zimbabwe was also specific.
Although the respondents contend, that, the nature and scope of the content of section 78(1) of the Constitution is ascertainable from the literal meaning of the language used, all they did was to restate the terms of the provision.
Mere restatement of terms of a provision is not an application of the Golden Rule of construction.
The respondents did not interpret the provisions of section 78(1) of the Constitution to determine its meaning, because, had they done so, they would have realized the absurdity of concluding that a family is not founded on marriage.
They would also have realised the absurdity of concluding, that, persons who have attained eighteen years have a right to found a family but no right to marry.
The absurdity would manifest itself in that their contention would mean, that, whilst persons under eighteen years would, according to them, have the right to marry, they would not have the right to found a family.
The respondents overlooked the fact, that, even the literal rule of interpretation is based on the acceptance of the principle, that, words are symbols by which ideas or thoughts are conveyed. Meaning is the totality of what the words signify.
As JUSTICE HOLMES of the Supreme Court of the United States of America said in Towne & Eisner 245 US 418 (1918)…, “a word is…, the skin of the living thought.”
The respondents did not interpret the provisions of section 78(1) of the Constitution to determine its meaning, because, had they done so, they would have realized the absurdity of concluding that a family is not founded on marriage.
They would also have realised the absurdity of concluding, that, persons who have attained eighteen years have a right to found a family but no right to marry.
The absurdity would manifest itself in that their contention would mean, that, whilst persons under eighteen years would, according to them, have the right to marry, they would not have the right to found a family.
Section 46(1)(a) of the Constitution obliges a court, when interpreting a provision contained in Chapter 4, to give full effect to the rights and freedoms enshrined in the Chapter.
The court is required, by section 46(1)(d) of the Constitution, to pay due regard to all the provisions of the Constitution, in particular, the principles and objectives set out in Chapter 2.
The purpose of interpreting a provision contained in Chapter 4 must be to promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality, and freedom, and, in particular, the values and principles set out in section 3 of the Constitution.
If the literal interpretation were applicable to the determination of the meaning of section 78(1) of the Constitution, its application would not give the fundamental right guaranteed and protected under section 78(1) the full measure of protection it deserves.
The interpretation would fail to take into account the fact, that, the nature and scope of the content of the right to found a family require, in many instances, that the persons who have attained the age of eighteen, who are desirous to found a family, enter into an agreement to live together as husband and wife which union forms the foundation and nucleus of the family.
Entering into marriage is, by definition, one of the methods by which a family is founded.
The court agrees with counsel for the applicants, that, only a broad, generous, and purposive interpretation would give full effect to the right to found a family enshrined in section 78(1) of the Constitution.
In Rattigan and Others v The Chief Immigration Officer and Others 1994 (2) ZLR 54 the Court held, that, the preferred constitutional construction “is one which serves the interest of the Constitution and best carries its objects and promotes its purpose.”
See also Smythe v Ushewokunze and Another 1997 (2) ZLR 544 (S).
The interpretation of section 78(1) of the Constitution must take into account the provisions of subsections (2) and (3).
Sub-section (2) guarantees, to the persons who have attained the age of eighteen years, freedom to enter into marriage without compulsion and with free will.
Section 26(a), which falls under Chapter 2, imposes an obligation on the State to take appropriate measures to ensure that no marriage is entered into without the free and full consent of the intending spouses.
For the persons who have attained the age of eighteen to enjoy the right to enter into marriage freely and with full consent as intending spouses, they must first have the right to enter into marriage.
Similarly, subsection (3) which prohibits same sex persons from entering into marriage, means that those with the right to enter into marriage are the persons mentioned in section 78(1) of the Constitution.
It is the person mentioned in section 78(1) of the Constitution who is given the right to exercise the right to enter into marriage with a person of the opposite sex who also has attained the age of eighteen years.
Both sub sections (2) and (3) of section 78 of the Constitution do not guarantee the right to enter into marriage.
The necessary implication leads to the conclusion, that, the right to enter into marriage is guaranteed to a man and woman who have attained the age of eighteen by section 78(1) of the Constitution.
