In a judgment ruling handed down on Wednesday 20 January 2016, Deputy Chief Justice Luke Malaba, ruled that no child in Zimbabwe should marry before attaining 18 years and declared that Section 22(1) of the Marriage Act (Chapter 5:11) or any law, practice or custom authorising a person under 18 years of age to marry or to be married is inconsistent with the provisions of Section 78(1) of the Constitution and therefore invalid to the extent of the inconsistency.
The Deputy Chief Justice also declared that with effect from Wednesday 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 18 years.
Deputy Chief Justice Malaba also declared that Section 78 (1) of the new Constitution sets 18 years as the minimum age of marriage in Zimbabwe.
The ruling came after two former child brides Loveness Mudzuru and Ruvimbo Tsopodzi aged 19 and 18 years respectively, petitioned the Constitutional Court in 2014 in a ground-breaking bid to get child marriages declared illegal and unconstitutional and cited Justice, Legal and Parliamentary Affairs Minister, Women’s Affairs, Gender and Community Development and the Attorney General as respondents in an application in which they protested about the infringement of the fundamental rights of girl children who have for years been subjected to early marriages.
Loveness and Ruvimbo, who were represented by Tendai Biti of Tendai Biti Law, a member of Zimbabwe Lawyers for Human Rights (ZLHR), in an application supported by ZLHR and Veritas, argued that since a child is now defined by Section 81(1) of the Constitution to mean a girl and a boy under the age of 18 years no child has the capacity to enter into a valid marriage in Zimbabwe since the coming into force of Section 78(1) and 81(1) of the new Constitution on 22 May 2013.
The former child brides further contended that Section 22(1) of the Marriage Act or any other law which authorises a girl under the age of 18 years to marry, infringes the fundamental right of the girl child to equal treatment before the law enshrined in Section 81(1)(a) of the Constitution. They argued that Section 22(1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.
The respondents were represented by Olivia Zvedi from the AG’s Office, who opposed the child brides’ application.
Although the ruling is a victory and the fact that the primitive practice of child marriages has been recognised and outlawed, ZLHR feels that a lot needs to be done in implementing it and educating Zimbabweans about the legal position so that everyone is aware of this position.
Source: Zimbabwe Lawyers for Human Rights