IT was a joyous occasion for the country’s women when the Constitutional Court (ConCourt) ruled with immediate effect that no child under the age of 18 should enter into marriage in terms of the Constitution.
“With effect from January 20 2016, no person, male or female may enter into any marriage, including unregistered customary law union or any other union including one arising out of religious rites before attaining the age of 18 years,” deputy chief Justice, Luke Malaba, ruled after he struck down section 22 of the Marriages act (Chapter 5.11), which allowed 16-year-olds to marry.
Despite winning the case against child marriages, the battle continues for the women’s movement in Zimbabwe.
Although laws are very important in criminalising child marriages, they are one tool in a range of measures needed to address child marriages.
Enforcement measures and civic education need to complement legislation to have an impact on the lives of girls at risk of child marriage.
Zimbabwe is one of four southern African countries with the highest rates of girl child marriages, according to the United Nations Population Fund and the development group Plan International. The others are Malawi, Mozambique and Zambia.
Girls who marry early are often forced to drop out of school, limiting their prospects. Giving birth before their bodies are fully developed can also lead to long-term medical conditions such as fistula, which is a hole occuring between the vagina and rectum or bladder. This is caused by prolonged obstructed labour leaving a woman unable to control urine or faeces or both. Marrying young also makes girls more vulnerable to domestic abuse.
Women’s organisations argue that early marriages prevent children, especially girls, from developing careers, forcing them into the cycle of poverty.
And many have welcomed attempts by Zimbabwe to rein in on the “scourge” by illegalising and criminalising marriage before one reaches 18.
Although hailed as an important step in recognising the full potential of girls and reframing how girls should be treated in society, the law requires a cultural shift, especially among the religious apostolic sects that condone child marriages.
Without a cultural shift, it will be impossible to achieve zero child marriages because already the country faces a huge challenge among the religious apostolic sects, where child marriage is most common.
Lawyer, Sharon Bwanya said the court ruling was indeed a cause for celebration, but there was an urgent need to realign the laws.
“There is now need to urgently align the Marriage Act and the Customary Marriages Act to reflect this new position. Further, there may be need to reconsider the age of sexual consent and increase it to 18 years as well so that there is no confusion regarding 16-year olds being deemed old enough to consent to sex, but too young to be married, otherwise we will be sending mixed signals to the religious and cultural sects that promote child marriages where the law says, it’s okay to sleep with them, but not okay to marry them. Then there is also the need for rigorous enforcement of these laws, otherwise they would be high sounding nothings,” Bwanya said.
With this new court ruling, it therefore means that Section 70(4)(a)(iv) of the Criminal Code, which says that statutory rape is having sex with a young person aged between the ages of 12 and 16, has to be changed to say between 16 to 18.
For ROOTS director, Beatrice Savadye, the organisation behind the court case that led to the landmark ruling, it was a moment of celebration, however, she highlighted the need to ensure a swift alignment of laws.
“ROOTS welcomes this judgement which comes as a milestone in the campaign to end child marriages and the protection of the rights of children, specifically young girls who remain the main victims of this scourge in society. As a grassroots-based organisation we are going to heighten civic education in all the communities, especially hotspots such as mining and farming communities and the religious groups such as the apostolic sects.
“We have been working with traditional leaders as well and will continue to engage them through community dialogues to empower communities to shift their mindsets, behaviours and attitudes towards child marriage,” Savadye said.
The Zimbabwe Association of Doctors for Human Rights (ZADHR) also applauded the ConCourt for handing down a progressive judgment.
“The judgement will go a long way in preserving the sexual and reproductive health and human rights of minors below the age of 18. ZADHR has always campaigned against child marriages, calling for the abolition of early and forced child marriages, arguing that such marriages compromised the health, education and basic human rights of the child.”
Welcoming the ConCourt ruling the United Nations system in Zimbabwe said outlawing marriage of persons below the age of 18 advanced child rights in the country as well as upholds the Constitution and reaffirms Zimbabwe’s commitment to the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child.
“We are delighted that the ruling sends yet again another powerful signal of Zimbabwe’s commitment to fulfil its obligations under national and international law,” said the UN in a statement which further reads: “Child marriages are not only an affront to the dignity and well-being of individual girls; they also deprive nations of the social and economic benefits that derive from an educated and skilled female population. The ruling also underscores the need to reform the current Marriage Act and the Customary Marriage Act to align them with the Constitution.”
According to the 2014 Multiple Cluster Indicator Survey (MICS), 32,8 percent of women aged between 20 and 49 years were married before the age of 18. Furthermore, child marriage has a distinct gender dimension whereby 24,5 percent of girls aged 15-19 years are currently married or in a union while only 1,7 percent of boys in the same age group are married or in a union.
The United Nations Children’s Fund (UNICEF) acting representative, Jane Muita, said the next steps are crucial if the ConCourt ruling is to be successful in bringing about actual change in the lives of children, especially girls, who are facing the risk of early marriage.
“First and foremost, practical measures need to be put in place to enforce the ruling. This will require the concerted efforts of all — the children themselves, families, communities, religious and traditional leaders, state institutions, non-governmental organisations and other development partners. Secondly, programmes need to be put in place to educate the public on the implications of the ruling. These efforts should include challenging the norms that promote child marriage, promoting gender equality and equal opportunities for girls and boys, and supporting leaders across the country who are proactively mobilising their communities to end child marriages.
“Thirdly, efforts need to be accelerated to reform the Marriage Act and the Customary Marriage Act which currently are not in tandem with the Constitution,” Muita said.
Challenging the cultural norms include challenging the mindset of men like Tendai Charakupa (22) of Mahusekwa in Marondera who last week begged the court not to convict him for rape, but to allow him to marry a 13-year-old girl.
He was, however, found guilty and sentenced to seven years.
Child marriage, defined as a formal marriage or informal union before age 18, is a reality for both boys and girls, although girls are disproportionately the most affected.
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