In this Law Reform Watch we shall expand on some of the issues arising from the Constitutional Court ruling and indicate how complex they are and how they need to be thoroughly thought through before rushing into legislative action to give effect to the court’s judgment. Â
In subsequent bulletins we shall turn to the SADC Model Law, explaining its origins and contents, and we shall then go on to suggest what should be done to give effect to the court’s judgment and what aspects of the Model Law should be incorporated into Zimbabwean law to suit the local context and what should be prioritised. The need for action to go hand in hand with informing citizens and with a National Plan of Action to end child marriage in Zimbabwe cannot be overemphasised.
What the Concourt Judgment Did – Only a First Step
It made Child Marriage Illegal
The Constitutional Court declared that provisions of our law that permitted children under the age of 18 to marry violated the Constitution.
The Ruling was that:
- under the Constitution 18 years is the minimum age of marriage in Zimbabwe;
- section 22(1) of the Marriage Act and any other law, practice or custom authorising a person under 18 to marry is unconstitutional and invalid;
- from 20 January 2016 no one may enter into any marriage or other union, including a customary or religious union, before attaining the age of 18.
The judgment is no more than a declaration that child marriage is unconstitutional. More needs to be done to make the judgment effective:
Next Steps – To Deal with Issues Arising from the Judgment
The Status of Pre-existing marriages
First it is important to note that pre-existing marriages [i.e. marriages contracted prior to the judgment of 20th January 2016] are not affected by the judgment. The court did not declare pre-existing child marriages to be invalid because of the immense disruption such a declaration might cause to the persons involved.
Amendment of marriage laws
Although section 22(1) of the Marriage Act has been declared invalid it remains on the statute book. It must be repealed at the earliest opportunity. Other provisions of the Act also deal with the marriage of minors, and they too must be repealed: sections 20, 21 and 22(2) and (3).
The Customary Marriages Act also needs amendment, primarily to insert a provision prohibiting the marriage of minors [at present no minimum age is specified in the Act]. In fact more amendments are needed: so many, in fact, that the whole Act should be revised and re-enacted. For example, there is a provision (section 12) which states that if “Africans†want to marry under the Marriage Act rather than the Customary Marriages Act they must get a certificate from a magistrate stating that the bride’s parents or guardian have consented to the marriage. It is extraordinary that such a provision has remained in the Act so long after Independence and the passing of the Legal Age of Majority Act.
Publicising the illegality of child marriage
Child marriage is an established feature in many sections of our society, and its illegality must be publicised as widely as possible so that everyone is aware of it. Not only its illegality but the disadvantages to society of child marriage – highlighted during the campaign to end child marriage – need to be stressed if social, cultural and religious practices allowing child marriage are to be overcome. Communities need to be involved in discussing the impact the judgment will have on them and how they can implement the law and still provide for the girl child. The government [through state media, the education and child welfare and gender ministries], NGOs [through training and radio], young people, churches and communities themselves need to be part of the drive to educate all people – men and women, boys and girls – in Zimbabwe
Criminalisation of child marriage
It is not enough for the law simply to state that the marriage of minors is invalid. Some penalty should be imposed on adults who compel or induce minors to get married. This needs to be done with great care, however, because the law must not unduly disrupt family relationships. For example, it would not help the immediate family or society as a whole to prosecute parents who, unable to feed their children, agreed to marry off an under-age daughter in order to alleviate their plight.  The question that must be considered carefully is when to criminalise child marriage – whether to introduce an amendment to the Criminal Law Code immediately to give force to the judgment, or whether this step should be put on hold it until there is more information disseminated.
The Welfare of Children who are already in child marriages
The Constitutional Court judgment did not affect pre-existing child marriages. But children who are already caught up in such marriages need to be protected against the potentially horrific consequences of their marriages just as much as children who are not yet married [who are protected by the judgment]. The fact that the court did not outlaw existing marriages does not mean that Parliament cannot do so,  It could, for example, enact a law giving children who are parties to such marriages the right to renounce their marriages, with the same rights to maintenance and division of property as wives have on divorce. Questions of maintenance, guardianship and custody of the children of such a marriage and their rights of inheritance would have to be considered as would problems of roora/lobola, the ability of their family of origin to look after them, and returning them to school if they have children or are pregnant. Should any child be given the option of remaining in such marriages? Do we consider children can make such a decision? If not, who should? If they stay in the marriage can they be offered legal or social welfare provisions to ensure that they or their children are not abused?
[Note: any measures taken will only have to be in place for 4 years or six at the most as from the 20th January 2016, the day of the Concourt judgment.]
Those married as children who are now adults
Should they also be given a means of opting out? If so, issues of maintenance, guardianship and custody of minor children, maintenance and inheritance will have to be considered.
More Access to Education and Training especially for the Girl Child
Two of the evil consequences of child marriage are that they deprive girls of a proper education and condemn them to a self-perpetuating cycle of poverty. Outlawing child marriage will not in itself permit girls to enjoy their constitutional right to education nor will it lift them out of poverty. For the full benefits of the judgment to be felt, the government will have to take measures that extend the reach of free education. There will be a societal problem of girls whose parents cannot afford to let them continue with their education but who cannot get married. If this is not dealt with, and if adequate government planning, state finance and help from donors is not forthcoming, the horrific consequences may be a continuation of illicit marriages that are more open to abuse, or an increase in trafficking of children, street child, teenage prostitution, etc.
Teenage pregnancies may increase because of the ruling. Thought must be given to either preventing them or making provision for them.
Age of consent to Sex
The judgment does not affect the age at which young persons can consent to sexual intercourse [currently 16 years in terms of section 70 of the Criminal Law Code]. Early sexual activity, like early pregnancy, is a different issue from child marriage. Some organisations have urged raising the age of sexual consent to 18.  Raising the age of consent to 18 may further protect girls against predation by older men but will do nothing to stop teenage sexual activity, and may cause injustice if youngsters are prosecuted for doing what comes naturally. Also any change to the age of consent must take into account the effect of reproductive heath and HIV AIDS programmes. The consequences of driving teenage sexual activity underground and making HIV and AIDS and family planning programmes illegal would be serious.
Age of consent in regard to Rape
Currently sexual intercourse with a girl under the age of 12 is rape [not just “statutory rapeâ€]. This age may also have to be reconsidered.
Implementation
How is the judgment and legislation arising from it going to be implemented – who will take responsibility – central government, individual Ministries, local authorities, the National Council for Welfare of Children?
What about people without birth certificates?
Marriage officers will need to ascertain the age of those who come to them for marriage – but many in Zimbabwe do not have birth certificates.
Monitoring
What mechanisms can be put in place to monitor the ending of child marriage?
Conclusion
There are many issues and questions arising from the judgment, and no doubt more will arise. Aligning the Marriage Acts to the judgment is straightforward and should be done immediately. Before other laws can be changed, however, there are complex societal, administrative, legal and financial considerations that will have to be considered and taken into consideration.
There needs to be prioritisation, planning and appropriate timing. The legislative agenda needs to go hand in hand with the National Plan of Action involving Ministries, UN agencies and NGOs and communities as well as the justice system.
Part II will look at SADC Model Law for ideas on how to deal with some of these issues.
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