Constitutional Court of Zimbabwe
20 January 2016
Article 1: Definition of the child
Article 2: Non discrimination
Article 3: Best interests of the child
Article 24(3): Health and health services
Other international provisions:
African Charter on the Rights and Welfare of the Child, Article 21: Protection against harmful social and cultural practices
Universal Declaration of Human Rights, Article 16: Right to marry and to found a family
Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention)
Convention on the Elimination of All Forms of Discrimination against Women, Article 16
International Covenant on Economic Social and Cultural Rights
International Covenant on Civil and Political Rights
Constitution of Zimbabwe: s 78(1) Marriage rights, s 81(1) Rights of Children, s 44 Protection of fundamental rights Marriage Act, s 22(1) Customary Marriages Act
The case was brought by two women in the public interest. They asked the Court to declare that the minimum age of marriage in Zimbabwe is 18 years old based on s 78(1) of Zimbabwe’s 2013 Constitution, which states that every person who has attained the age of 18 has the right to found a family, read together with s 81 of the Constitution, which accords special protection to children, defined as all boys and girls under the age of 18.
Section 22 of the Marriage Act, which pre-dates the Constitution, allows girls aged 16 and over to marry with the consent of a parent or guardian. Girls under 16 and boys under 18 could not marry except with the consent of the Minister of Justice.
The applicants argued that since Constitution now defines a child as anyone under 18, no boy or girl under that age can enter a valid marriage and that s 22 of the Marriage Act violates the Constitution in that it treats girls and boys differently.
The government opposed the application and argued that s 78(1) provides the right to found a family which is not the same as the right to marry and that the Court should take the literal meaning of that phrase. It was also submitted that different treatment of girls and boys in this context is justified by the different rate at which the two sexes mature.
Issue and resolution:
Minimum age of marriage. The Court decided that the Constitution sets the minimum age of marriage in Zimbabwe at 18 and that any other law, custom or practice which allows marriage of parties below that age is unconstitutional and invalid as of the date of the judgment.
The Court first examined the applicants’ standing to bring this action in the public interest. It discussed at length the concept of ‘public interest’ and concluded that it includes cases where the “alleged infringement […] has the effect of prejudicially affecting or potentially affecting the community at large or a significant section or segment of the community” and “cases of marginalised or underprivileged persons in society who because of sufficient reasons such as poverty, disability, socially and economically disadvantaged positions, [who] are unable to approach a court to vindicate their rights.” In the present case, the Court was satisfied that the two women made the application to altruistically protect the rights of female children who may be subjected to early marriage and that the case should be allowed in the public interest.
When considering matters of interpretation of constitutional rights, the Court is obliged to consider any relevant provisions of international law and all treaties and conventions to which Zimbabwe is a party. The judgment referred to a number of such treaties, paying particular attention to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWR).
In 1965 when the Marriage Act was enacted, the relevant international norms in existence at the time did not specify any specific minimum age for entering into marriage, leaving States to choose an age in their domestic law. In 1981 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) came into force, Article 16 of which prohibited child marriage explicitly, however it did not set a minimum age or even a definition of ‘child’.
In 1990, the CRC was the first international convention to define ‘child’ as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” The Court reviewed academic writings related to the lack of an explicit prohibition of child marriages in the CRC and the use of gender-neutral language throughout. Nonetheless, the Court noted that the Convention is “a milestone in child and human rights” and a number of studies have based a definition of ‘child marriage’ on it to be a marriage of a person falling within the definition of a ‘child’ in Art. 1 CRC.
In contrast, Article 21 of the ACRWC, which also came into force in 1990, sets clearly and unambiguously that States must take measures, including the introduction of legislation, to set the minimum age of marriage at 18 years of age.
The Court noted that the enactment of ss 78(1) and 82(1) of the 2013 Constitution was born out of Zimbabwe’s commitment to provide greater protection for the fundamental rights of the child. The obligation imposed by Article 21 of the ACRWC to observe 18 as the minimum age to marry is clear and Zimbabwe is bound comply with it and abolish child marriages.
The Court rejected the respondent’s suggestion that the phrase ‘to found a family’ in s 78(1) means anything different than entering into marriage. If such an interpretation was accepted, it would mean that persons under 18 may marry but not found a family and persons over that age may found a family but no right to marry, which according to the Court was an absurd interpretation of the law. The Court said that entering into marriage is by definition one of the methods by which a family is founded.
Instead, the Court chose to adopt a broad, generous and purposive interpretation of the text of the Constitution. This means that the language of the law should be interpreted in the way which best serves to promote its purpose. Since no other part of s 78 conveys the right to marry, subsection (1) must be interpreted as to containing the right to enter into marriage of persons over the age of 18. Therefore, a person under 18 has no legal capacity to marry and a fundamental right not to be subjected to any form of marriages regardless of its source (civil, customary or religious law).
This conclusion is further supported by a reading of s 81 granting special protection to children whose purpose is to eliminate social practices, such as early marriage, which subject children to exploitation and abuse. The effect of reading the two provisions together is that a child cannot found a family, without any exception. The Court noted that such an interpretation of the Constitution is in line with the ACRWC. The Court referred to the review by various UN treaty bodies of Zimbabwe’s marriage laws, who noted that differences between the legal ages to marry between girls and boys are discriminatory and must be eliminated. It also considered studies detailing the negative consequences of early marriage on children and girls in particular. Since the Constitution sets forth the principle that men and women are equal and prohibits discrimination and unequal treatment on the ground of sex or gender. Moreover, the Court noted that there is no scientific evidence to support the argument the girls mature physiologically, psychologically and emotionally at an earlier age than boys.
Therefore, the Court declared that the minimum age of marriage in Zimbabwe is 18 and child marriage in Zimbabwe was outlawed at the time when the new Constitution came into force. Any contradicting provisions in pre-existing legislation, such as s 22(1) of the Marriage Act, became invalid on that date. However, the Court decided to limit the retrospective effect of the decision, because of the disruption it may cause on persons acted in the belief that these laws were valid. It was deemed in the public interest to make an order that no person under the age of 18 could enter into a marriage effective from the date of the judgment.
Excerpts citing CRC and other relevant human rights instruments:
Section 78(1), as read with s 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 s 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 CRC which came into force on 2 September 1990. Article 1 of CRC 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 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 p. 247.
Under Article 16(1) of the UDHR, 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) 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 UDHR 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 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.
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 CEDAW reserved the right to marry and to found a family to men and women of full age.
Article 16(2) 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 CEDAW prohibited child marriage, s 22(1) of the Marriage Act 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 CEDAW did not even define “child”.
The problem of lack of definition of “child” in Article 16(2) of the CEDAW 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 CRC 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 CRC makes provision for the protection of the rights of the child. Article 2 of the CRC 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 CRC 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 CRC provides that States Parties shall take measures to abolish “traditional practices prejudicial to the health of children”.
Although the CRC did not specify the age of eighteen as the minimum age for marriage, in defining “a child”, it provided the CEDAW Committee and the CRC Committee with the basis for declaring the minimum age of marriage to be eighteen years. This is because Article 16(2) of the CEDAW provides in express terms that the “marriage of a child shall have no legal effect”.
Elizabeth Warner in the Article referred to earlier at p 251 highlights the shortcomings of the CRC 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 CRC 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 CRC was “designed to be gender blind” violations that primarily affect boys (i.e. child soldiers) are covered under CRC Article 38. The same consideration is not given to violations predominantly affecting girls in child marriage.
Askari’s solution to the CRC’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 CRC, as it stands, is in many ways a milestone in child and human rights. It was after the CRC 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 CRC.
The studies showed how child marriage infringed the fundamental rights of the girl–child guaranteed by the CRC 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:
- 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:
- Those customs and practices prejudicial to the health or life of the child; and
- Those customs and practices discriminatory to the child on the grounds of sex or other status.
- 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 ACRWC 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 Charter 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 ACRWC 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 ACRWC, Elizabeth Warner in the Article already referred to had this to say at p 257:
“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 ACRWC had a direct effect on the views on the validity of ss 20 and 22 of the Marriage Act. A review of States reports presented to the CRC 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 s 22(1) of the Marriage Act 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 CEDAW Committee in General Recommendation 21 para. 38 was to the effect that provisions such as those of s 22(1) of the Marriage Act, 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 CEDAW 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 CRC and Article 21 (2) of the ACRWC rendered provisions such as those contained in s 22(1) of the Marriage Act, 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.
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 ACRWC to specify by legislation eighteen years as the minimum age for marriage and abolish child marriage. Under Article 18 of the Vienna Convention on the Law of Treaties which came into force on 2 January 1980, a State Party is enjoined to hold in good faith and observe the rights and obligations in a treaty to which it is a party. 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.
It is important to recall the comment by the CEDAW Committee in General Recommendation 21 para. 38 to the effect that s 22(1) of the Marriage Act 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.
CRIN believes this decision is partially consistent with the CRC. The Court was correct to find that a different age of marriage for boys and girls is a rights violation, contrary to Article 2 CRC. Nonetheless, not all marriage of persons under the age of 18 is violates the Convention. The Committee on Rights of the Child and the Committee on the Elimination of Discrimination against Women have said that in exceptional circumstances a mature and capable child over the age of 16 may marry “provided that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the evidence of maturity without deference to cultures and traditions.” Such an approach is consistent with the best interests principle (Art. 3 CRC) and the evolving capacities of the child (Art. 5 CRC). However, in order to fully comply with children’s rights standards, any system that allows the marriage of children under the age of 18 must ensure that the child has provided their free and informed consent and that authorising the marriage is consistent with the child’s best interests, based on an individual assessment of the facts of the case.
Const. Application No. 79/14, Judgment No. CCZ 12/2015
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