Child-marriages outlawed in Zimbabwe

The landmark ruling was made in a case in which two teenagers, Loveness Mudzuri (20) and Ruvimbo Tsapotsi (19), were challenging the Customary Marriages Act, claiming it allows girls to get married at an early age.

The two girls fell pregnant at the ages of 15 and 16 respectively and were seeking an order barring children from entering into unregistered customary law unions before the age of 18. They also wanted any unregistered customary law union contracted by a person below the age of 18 to be declared null and void.

The applicants, through their lawyer Tendai Biti, argued that since “a child” was now defined to mean a girl and a boy under the age of 18 years, no child had the capacity to enter into a valid marriage in Zimbabwe since the coming into force of sections 81 (1) of the Constitution on May 22, 2013.

They further argued that section 22(1) of the Marriage Act or any other law which authorizes a girl under the age of eighteen years to marry, infringed the fundamental right of the girl child to equal treatment before the law as enshrined in section 81(1)(a) of the Constitution.

The girls also argued that section 22(1) of the Marriage Act exposed the girl child to the horrific consequences of early marriage, which are the very injuries against which the fundamental rights were intended to protect every child.

In its view, the court said it was 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.

It was also the court’s view that the application raised questions of national importance, answers to which were not obvious and that litigation really concerned the ending of the problem in child marriage.

The Constitutional Court full bench, led by Justice Vernanda Ziyambi, declared that child marriages were illegal and also ruled that Section 22(1) of the Marriages Act (Chapter 5:11) was inconsistent with provisions of the Constitution of Zimbabwe, which sets the minimum age of marriage at 18 years old.

“The application succeeds. It is declared that section 78 (1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 sets 18 years as the minimum age of marriage in Zimbabwe.

“It is further declared that section 22(1) of the Marriage Act [chapter 5:11] or any law, practice or custom authorizing 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 law is hereby struck down,” the ruling said.

“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 18.

“Each party shall bear costs,” added Justice Ziyambi in passing the ruling.

The ruling was written by deputy chief justice Luke Malaba.