Pedestrian Opinion with Mike Murenzvi
Child marriages represent an unwanted vestige from a time gone by. This was time when the marriage of young girls in a family represented survival from poverty.
Despite further modernisation, this remains the lived reality for many communities, whether by circumstance or by religious or societal tradition.
Following the enactment of the 2013 Constitution of Zimbabwe, two young ladies – both victims of child marriage – launched a legal challenge that redefined the minimum age for marriage in the country. In 2016, their challenge succeeded and the minimum age of marriage for girls was regularised to 18 in accordance with the Constitution up from the previous 16.
This Constitutional Court case of Loveness Mudzuru and Ruvimbo Tsopodzi v the Ministers of Justice and Women’s Affairs officially ended the legality of all child marriages and enforced the minimum age of marriage to 18 across both sexes, while also enforcing the principle that any person under the age of 18 is a child and must be protected.
What did the Constitutional Court decide?
- It is declared that s 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 s 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 s 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 18 years.
In limbo: the Marriages Bill
Following the Mudzuru case, Government was compelled to make the appropriate changes to the law in order to complete the effect of the judgment. These changes were essentially to amend the Marriage act to align the minimum age for marriage as well as to amend the Criminal Law Code to also align the age of sexual consent.
These two changes would have been fairly and easy to pass through Parliament as they would have directly dealt with the requirements of the judgment and associated commentary. This did not happen. The Government decided, instead, to opt for a complete overhaul of marriage laws.
Since 2016, the Marriages Bill has been a charged and topical issue across the country, not because of aligning the marriage age to the Constitution, but rather because of the wording of some of the other clauses in relation to unmarried partners and customary marriage.
As a result of the controversy surrounding the Marriages Bill, it has been stalled in Parliament. After a long, drawn-out process in which the Civil Partnerships clause was a burning issue, the National Assembly finally passed the Bill on 3 November 2021 and passed it on to the Senate.
In the Senate, the same Bill has been stuck for more than a year now, with traditional chiefs in Senate standing their ground in opposition to the clause that makes roora/lobola optional. They want roora/lobola to remain a prerequisite for customary marriages.
Several rights organisations have called for the swift enactment of these laws in order to properly protect children from early marriage, as well as to prosecute those adults who engage in, or promote such practices.
The mismatch of ages of sexual consent and marriage
In all these proposed legal changes, one glaring gap remains – that of ages of sexual consent and marriage. The Government denied calls by the public and various groups to align both ages to the same eighteen and instead decided to leave the age of sexual consent at sixteen.
In effect, this means that girls aged 16 or 17 remain exposed to sexual exploitation by adults without any possible recourse, unless it is a matter of sexual abuse or rape.
While previously, marriage was an option, albeit an unjust one, these children remain unprotected prey for lecherous adults who know that for as long as there was consent, the worst outcome from such acts is maintenance of a child born out of such acts.
The future of the minor mother will have changed in ways that can’t be imagined.
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The case of Anna Machaya
In July 2021, it was reported that a 15-year-old girl had died during childbirth at an apostolic shrine in Marange. Following significant public outrage, the police were forced to investigate the claim and established that the young girl’s name was Anna Machaya, from Gweru. Her parents had allegedly married her off within the doctrines of their faith to a 26-year-old, Hatirarame Momberume.
After some further investigations, Momberume was charged with having sex with a minor and murder. In November, he was granted bail by the High Court after the State failed to link the essential elements of murder to their charges, leaving an effective charge of having sex with a minor.
The current status of this case shows the effect of delayed enactment of substantive and definitive laws and punishment on child marriage. The would-be husband can only be charged with having sex with a minor, and nothing else.
Elusive justice
Six years and countless victims later, there is no effective legislation against child marriages.
The fight that should have taken a turn to give the police real teeth against this scourge continues unabated. While traditional and religious leaders have begun speaking against this practice within their communities, it will take more than just sabre rattling to change the mindset of people to whom this practice is deeply ingrained or a way out of crippling poverty.
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The author writes in his personal capacity and his views don’t represent any organisation with which he is affiliated.
