Landmark Ruling on Child Marriages in Zimbabwe
By Davison Kanokanga
On the 20th January 2016, the Constitutional Court of Zimbabwe handed down a landmark ruling in the case of Loveness Mudzuru and Ruvimbo Tsopodzi vs. Minister of Justice, Legal and Parliamentary Affairs NO; Minister of Women’s Affairs, Gender and Community Development; Attorney General of Zimbabwe CC2 12/2015
The two Applicants in that matter were two young women aged 19 and 18 years respectively. They were seeking a declaratory order in the terms that:
- The effect of section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013 is to set 18years as the minimum age of marriage in Zimbabwe.
- No person, male or female in Zimbabwe may enter into any marriage including an unregistered customary law union or any other union including one arising out of religion or a religious rite before attaining the age of eighteen (18).
- Section 22 (1) of the Marriage Act (Chapter 5:11) is unconstitutional.
- The Customary Marriages Act (Chapter 5:17) is unconstitutional in that it does not provide for a minimum age limit of eight (18) years in respect of any marriage conducted under the same.
After hearing submissions from the parties’ lawyers, the Constitutional Court made the following order:
- 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.
- It is further declared that section 22(1) of the Marriage Act (Chapter 5:11) or any other law, 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.
- 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.
THE EFFECT OF THE RULING
- A child is now defined by section 81 of the Constitution to mean a girl or a boy under the age of eighteen years.
- No child i.e. a boy or a girl under the age of eighteen years has the capacity to enter into a valid marriage in Zimbabwe.
- Section 22(1) of the Marriage Act which provided that a girl who attained the age of sixteen years could get married and that a boy under eighteen years and a girl under the age of sixteen years could get married with the consent of the Minister of Justice, Legal and Parliamentary Affair is no longer part of our law.
- Whilst in the past there was no age limit in respect of customary law unions and marriages, now there is an age limit in respect of such customary law unions and marriages. The age limit is eighteen years.
- Child marriages have been abolished in Zimbabwe.
- A girl child who falls pregnant before the age of eighteen years remains the responsibility of her parents in that she will still be a child.
- Pregnancy is no longer a basis for child marriages, In this regard the court said, “A girl does not become an adult and therefore eligible for marriage because she has become pregnant…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”.
- Customary practices or customs as well as religious rites can no longer be used to justify child marriages.
- Whilst child marriages have been outlawed, they are yet to be criminalised.
While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.
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