MERITSThe 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 ...
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
[Chapter 5:11], 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
[Chapter 5:11] and the effect of the application of section 78(1) of the
Constitution on its meaning….,.
In deciding whether section 22(1) of the Marriage Act
[Chapter 5:11], or any other law which authorizes 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
[Chapter 5:11] 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 [Chapter 5:11], 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 which came into force on
2 September 1990. Article 1 of the Convention
on the Rights of the Child 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 [Chapter 5:11] 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, 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 Universal Declaration of Human Rights 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 of the Universal
Declaration of Human Rights 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 Marriage Convention was expected to resolve
the issue of the standard age of majority for purposes of marriage. 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
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 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
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 [Chapter 5:11] 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 [Chapter 5:11] clearly
permitted marriage of a girl who had attained the age of sixteen years.
Section 20(1) of the Marriage Act [Chapter 5:11] 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 [Chapter 5:11] 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 [Chapter 5:11] 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 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 thereof 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 prohibited child marriage, section
22(1) of the Marriage Act [Chapter 5:11] 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 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 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 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 makes provision
for the protection of the rights of the child.
Article 2 of the Convention on the Rights of the Child
prohibits “discrimination” of any form against children, including on the basis
of sex. Article 3 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
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 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 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 Committee and the Convention on the Rights of the
Child 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 provides, in express
terms, that the “marriage of a child shall have no legal effect.”
ELIZABETH WARNER, in “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…, highlights the shortcomings of the Convention on the Rights of the
Child in these terms:
“The CRC, 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 Marriages Convention). Article 1 of the CRC 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 CRC 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 more so once she has borne a child of her own.
One could therefore argue that the entire CRC 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 CRC mandate where it is most needed.”
The Convention on the Rights of the Child 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 was “designed to be gender blind” violations that
primarily affect boys (i.e. child soldiers) are covered under Convention on the
Rights of the Child 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 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
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…, 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 CRC, avoids certain additional violations that are specific to
girls only. Thus, girls sometimes fail to be completely protected under the
provisions of the CRC. By identifying gender equality as a jus cogens norm, the
gender-neutral language of the CRC 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, 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 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.
The studies showed how child marriage infringed the
fundamental rights of the girl-child guaranteed by the Convention on the Rights
of the Child, 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 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 unambiguous language, Article 21 of the African
Charter on the Rights and the Welfare of the Child (1990) 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)
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) 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 authorised child marriage.
Commenting on the provisions of Article 21(2) of the African
Charter on the Rights and the Welfare of the Child (1990), ELIZABETH WARNER, in
“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…, 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 CRC and 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) had a direct effect on the views
on the validity of sections 20 and 22 of the Marriage Act [Chapter 5:11].
A review of States reports presented to the Convention on
the Rights of the Child 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) para. 159, 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) para.
214, 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 [Chapter 5:11], 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 (1979) Committee, in General
Recommendation 21 para. 38, was to the effect that provisions such as those of
section 22(1) of the Marriage Act [Chapter 5:11], 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 (1979) Committee, in making the comment in General
Recommendation 21 para. 38, 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 and Article 21(2) of the African Charter on the Rights and the Welfare of
the Child (1990) rendered provisions such as those contained in section 22(1) of
the Marriage Act [Chapter 5:11], and any other law authorising 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 [Chapter 5:11], 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 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.
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 [Chapter 5:11],
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: “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 intergenerational 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 underdeveloped
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 [Chapter 5:11] was born out of lack of commitment to
the protection of the fundamental rights of the girl child. Section 78(1) as
read with s 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)
to specify, by legislation, eighteen years as the minimum age for marriage and
abolish child marriage….,. 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….,.
Section 78(1) of the Constitution sets eighteen years as
the minimum age of marriage in Zimbabwe. Its effect is that a person who has
not attained the age of eighteen has no legal capacity to marry. He or she has
a fundamental right not to be subjected to any form of marriage regardless of
its source. The corollary position is that a person who has attained the age of
eighteen years has no right to marry a person aged below 18 years.
Section 81(1) of the Constitution puts the matter of the
legal effect of section 78(1) of the Constitution beyond any doubt. It provides
that a person aged below 18 years is “a child” entitled to the list of
fundamental rights guaranteed and protected thereunder. That means that the
enjoyment of the right to enter into marriage and found a family, guaranteed to
a person who has attained the age of 18 years, is legally delayed in respect of
a person who has not attained the age of eighteen years.
The effect of section 78(1) as read with section 81(1) of
the Constitution is very clear. A child cannot found a family.
There are no provisions in the Constitution for exceptional
circumstances. It is an absolute prohibition in line with the provisions of
Article 21(2) of the African Charter on the Rights and the Welfare of the Child
(1990). The prohibition affects any kind of marriage, whether based on civil,
customary or religious law. The purpose
of section 78(1) as read with section 81(1) of the Constitution is to ensure
that social practices, such as early marriages, that subject children to
exploitation and abuse, are arrested. As
a result, a child has acquired a right to be protected from any form of
marriage.
Effect of
Section 78(1) of the Constitution on Section 22(1) of the Marriage Act and
Child Marriage
The applicants contend that section 78(1) as read with section 81(1)
of the Constitution had the effect of rendering section 22(1) of the Marriage
Act [Chapter 5:11] invalid when it came into force on 22 May 2013.
Counsel for the applicants argued that as section 78(1) of
the Constitution contains an absolute prohibition of child marriage, section
22(1) of the Marriage Act [Chapter 5:11] cannot be construed to be in
conformity with the Constitution.
The applicants contend, further, that as a result of the
coming into force of section 78(1) as read with section 81(1) of the
Constitution, child marriage has been abolished in Zimbabwe. The argument
advanced on behalf of the applicants is that because the executive and
legislative branches of Government failed to take legislative measures to
repeal section 22(1) of the Marriage Act [Chapter 5:11], it has continued to
provide the ghost of legitimacy to child marriages entered into after 22 May
2013. The factual basis of the applicants' contention is supplied by the
findings of the Multiple Indicator Cluster Survey 2014. The findings of the
survey were that 26.2 percent of young people aged 15-19 years were in marriage
of which 24.5 per cent were females and only 1.7 per cent were males….,.
Section 78(1) as read with section 81(1) of the
Constitution sets forth the principle of equality in dignity and rights for
girls and boys, effectively prohibiting discriminatory and unequal treatment on
the ground of sex or gender. Consistent with Article 21(2) of the African
Charter on the Rights and the Welfare of the Child (1990), section 78(1) of the
Constitution abolishes all types of child marriage and brooks no exception or
dispensation as to age based on special circumstances of the child.
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 a public official, or of
the parents or guardian of the child. When read together with section 81(1) of
the Constitution, section 78(1) has effectively reviewed local traditions and
customs on marriage. The legal change is consistent with the goals of social
justice at the centre of international human rights standards requiring
Zimbabwe to take appropriate legislative measures, including constitutional
provisions, to modify or abolish existing laws, regulations, customs, and
practices inconsistent with the fundamental rights of the child. There was
obvious social need to break with the past where a child aged sixteen could be
turned into a wife.
Section 78(1) of the Constitution is based on the principle
that only free men and women of full age should marry. When men and women
marry, they assume important responsibilities. They must have reached the legal
age of maturity when they have the capacity to freely choose their partners and
be able to give free and full consent to marriage. Section 78(1) provides, in
effect, that a person aged below 18 years has not attained full maturity and
lacks capacity to understand the meaning and responsibilities of marriage.
The rights to marry and found a family are rights to be
enjoyed by adults and not children. The Inter-African Committee on Traditional
Practices Affecting the Health of Children states that early marriage is “any
marriage carried out below the age of 18 years, before the girl is physically,
physiologically and psychologically ready to shoulder the responsibilities of
marriage and child bearing.”
No law can validly give a person in Zimbabwe, who is aged
below eighteen years, the right to exercise the right to marry and found a
family without contravening section 78(1) of the Constitution. To the extent that it provides that a girl
who has attained the age of sixteen can marry, section 22(1) of the Marriage
Act [Chapter 5:11] is inconsistent with the provisions of section 78(1) of the
Constitution and therefore invalid.
In light of the overwhelming empirical evidence
on the harmful effects of early marriage on girl children, no law which authorizes
such marriage can be said to do so to protect “the best interests of the child.” The best interests of the child would be
served, in the circumstances, by legislation which repealed section 22(1) of
the Marriage Act [Chapter 5:11]. By exposing girl children to the horrific
consequences of early marriage, in clear violation of their fundamental rights
as children, section 22(1) of the Marriage Act [Chapter 5:11] is contrary to
public interest in the welfare of children. Failure by the State to take such
legislative measures to protect the rights of the girl-child, when it was under
a duty to act, denied the girl children subjected to child marriages the right
to equal protection of the law.
