CCC12-15 - LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O. and OTHERS

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Children Violations-viz early marriages re section 78 of the Constitution.

Children Violations-viz child marriages re section 81 of the Constitution.

Constitutional Law-viz legal age of majority re section 78 of the Constitution.

Constitutional Law-viz legal age of majority re section 81 of the Constitution.

Children Violations

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.

Children Violations

Surprisingly, counsel for the respondents sought to justify marriage under section 22(1) of the Marriage Act [Chapter 5:11] on the ground that a girl physiologically, psychologically, and emotionally matures earlier than a boy.

The contention is without scientific evidence to support it.

The Zimbabwe Human Rights Bulletin Number 98, August 2014 states that the reason why eighteen years is specified under international human rights law, and national Constitutions, as the minimum age for marriage, is that a person of that age is considered to be psychologically and physiologically developed enough for the responsibilities and consequences of marriage and is capable of giving free and full consent to marriage.

As a matter of fact, the Inter-African Committee on Traditional Practices Affecting the Health of Children gives the rationale for international human rights law setting eighteen years as the minimum age for marriage, as being that a girl aged below 18 years is invariably, physically, physiologically, and psychologically immature to shoulder the responsibilities of marriage and child-bearing.

The horrific consequences of child marriage are clear testimony to the flaw in the respondents' argument.

It is important to recall the comment by the Convention on the Elimination of All Forms of Discrimination against Women Committee, in General Recommendation 21 para. 38, to the effect that section 22(1) of the Marriage Act [Chapter 5:11] assumed, incorrectly, that girls have a different rate of intellectual development from boys or that their stage of physical and intellectual development at marriage is immaterial.

The respondents failed to appreciate that it is not the circumstance or condition of the child that is the determinant factor when the effect of section 78(1) of the Constitution on legislation is considered. Section 78(1) has the effect of protecting every child, equally, regardless of his or her personal condition. The factor of a girl maturing earlier than a boy, said to be the rationale for the differences in the treatment of girls and boys authorized by the impugned legislation, is of no consequence in the determination of the effect of section 78(1) of the Constitution on the validity of the legislation. Section 78(1) entitles a girl and a boy to equal protection and treatment before the law.

It is regrettable that the respondents failed to appreciate that the rationale they advanced in support of the difference in the treatment of girls and boys, formalised by the impugned legislation, is the old stereotypical notion that females were destined solely for the home and the rearing of children of the family and that only the males were destined for the market place and the world of ideas.

See Stanton v Stanton 421 US 7(1975).

The contention by the respondents is contrary to the fundamental values of human dignity, gender equality, social justice, and freedom which the people of Zimbabwe have committed themselves to uphold and promote through legislation governing the interests of children.

Fear was also expressed that, if section 22(1) of the Marriage Act [Chapter 5:11], and any other law or custom which authorizes child marriage, were declared unconstitutional and struck down, men would impregnate girls and not bear the responsibility of having to marry them.

The short answer to the concern is that once it is accepted, as it should be, that sections 78(1) and 81(1) of the Constitution guarantee and protect the right to equality of treatment before the law to a girl and a boy, without provision for exceptions, the circumstance of a girl getting pregnant does not disentitle her from the enjoyment of all the rights of a child enshrined in section 81(1) of the Constitution.

A girl does not become an adult and therefore eligible for marriage because she has become pregnant. The effect of the protection under section 78(1) as read with section 81(1) of the Constitution, is that a girl remains a child, regardless of her pregnancy status, until she attains the age of 18 years. Whilst she is a child, all the fundamental rights of a child protect her from being subjected to any form of marriage. The pregnant girl is entitled to parental care and schooling just as any other child is entitled. This means that the parental obligation to care for and control the girl child does not cease because of her pregnancy.

Resistance to the liberation of the girl child from the shackles of child marriage and its horrific consequences, based on conceptions of sex discrimination, is against the best interests of the girl child served by the enforcement of the fundamental rights enshrined in sections 78(1) and 81(1) of the Constitution. Girl children are entitled to effective protection by the Court which is the upper guardian of the rights of children and whose duty it is to enforce the fundamental rights designed for their protection. The history of the struggle against child marriage sadly shows that there has been, for a long time, lack of common social consciousness on the problems of girls who became victims of early marriages.

There is a difference between making a man take responsibility for the pregnancy of a girl and the maintenance of the baby once it is born and compelling a girl child to get married because she got pregnant. The issue of early pregnancy is a social problem that needs cooperation amongst all stakeholders to solve. It would, in fact, be a form of abuse of a girl child to compel her to be married because she got pregnant. That, in any case, cannot happen without a contravention of section 78(1) as read with section 81(1) of the Constitution. What is clear is that pregnancy can no longer be an excuse for child marriage.

There cannot be a family founded by a child.

Even under the provisions of section 22(1) of the Marriage Act [Chapter 5:11], pregnancy was not regarded as a condition necessary for marriage. Of urgency is the prevention of the ongoing violations of the girl child's fundamental rights. Once the fact that child marriage has been abolished in Zimbabwe is known, the imperative character of the law shall be felt in the hearts and minds of many men and women so strongly that transformative obedience to it shall become a matter of habit.

APPROPRIATE RELIEF

The applicants have succeeded in showing that section 78(1) of the Constitution sets 18 years as the minimum age of marriage in Zimbabwe. They have also succeeded in showing that section 22(1) of the Marriage Act [Chapter 5:11], and any law, custom and practice which authorises child marriage is unconstitutional. That would include the Customary Marriages Act [Chapter 5:07] to the extent that it authorizes child marriage.

The duty of the Court is to declare legislation which is inconsistent with the Constitution to be invalid. Section 175(6)(b) of the Constitution gives the Court a discretion to make an order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity. In the exercise of its discretion, the Court is cognisant of the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid. The Court has found it in the public interest to make the order granted to have effect from the date of issue…..,.

DISPOSITION

The court makes the following order:

1. The application succeeds.

2. It is declared that section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013 sets eighteen years as the minimum age of marriage in Zimbabwe.

3. It is further declared that section 22(1) of the Marriage Act [Chapter 5:11], or any law, practice, or custom authorising a person under eighteen years of age to marry, or to be married, is inconsistent with the provisions of section 78(1) of the Constitution and therefore invalid to the extent of the inconsistency.

The law is hereby struck down.

4. With effect from 20 January 2016, no person, male or female, may enter into any marriage, including an unregistered customary law union or any other union, including one arising out of religion or religious rite, before attaining the age of eighteen (18) years.

5. Each party shall bear its own costs.

Sexual Intercourse with a Young Person or Statutory Rape, Consensual Juvenile Sex and Pledging of the Girl Child