Why the Law Has Failed to End Child Marriage in Zimbabwe

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Mhaka Tinatswe

Founder|Activist|Lawyer

In 2013 Zimbabwe adopted the amended Constitution. While this is a part of welcomed law reform the problem was that various pieces of legislation did not correspond with this new Constitution (particularly around gender equality in marriage laws, age of consent and child marriage). In 2015, an Inter-Ministerial Taskforce was set up to carry out constitutional alignment. These would be the individuals responsible for the harmonization of different laws with the newly amended constitution. In response to child marriage prevalence in 2016, two women challenged sections of the Marriage Act that made it legal for a child below the age of 18 to be married. In this landmark case Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14, CC 12-15 the Constitutional Court ruled that

  1. The legal age of marriage is 18.
  2. Section 22 of the Marriage Act and any other law allowing persons below the age of 18 to marry is inconsistent with the Constitution.
  3. No person may enter into a marriage or customary law union before the age of 18.

In 2017, the House of Assembly began developing the Marriages Bill, in response to this judgment and other gender-related injustices. While this judgment sparked the conversation around child marriage it certainly did not stop it. One would have thought that the protection of vulnerable groups was a priority but it is now 2020 and child marriage has not been criminalized and legislation has not been repealed. Though the official judicial position is that it is prohibited, multiple pieces of legislation continue to perpetuate the crime and provisions that render that decision ineffective:

  1. THE CONSTITUTION OF ZIMBABWE, 2013

Section 26 states that the State must take appropriate measures to ensure that no marriage is entered into without the free and full consent of the intending spouses and children are not pledged in marriage. Section 78 states that only persons aged 18 and above can found a family. While these sections can be relied on to confirm the legislature’s position on child marriage, there has been very little effort to make any alignment that will challenge the status quo of women and girls in Zimbabwe.

Section 3 (1) (l) of the Act lists child marriage as a form of domestic violence and section 4 states that anyone guilty of any offense in the former is liable to a fine and imprisonment. While problematizing child marriage, the Act does not define who a child is at law, neither does it expand further on the definition and penalty that is attached to it. Realistically, this means that it is impossible to prosecute a perpetrator with reliance on this section. It is moot.

Section 20 of this Act deals with the marriage of minors. The section allows for a legal guardian to give consent to the marriage of a child below a certain age, and Section 22 states that age to be eighteen for boys and sixteen for girls (a discriminatory and unjustified distinction). While this was declared unconstitutional by the Mudzuru case, this is how the Act currently reads. Additionally, the Act neglects to clearly state an age that marriage to a minor becomes illegal or the criminal liability attached to facilitating or taking part in it. (This will be remedied by the Marriage Bill that has now been in its development stages for four years).

Section 3& 4 of the Act state the limited circumstances under which women in Zimbabwe can terminate a pregnancy. These are :

  • Endangerment to the life of the mother
  • Where there is a serious risk to the mental or physical health of the child
  • Where the pregnancy is a result of unlawful intercourse namely rape or incest.

Section 64 of the Criminal Code (Reform and Codification) Act states that a person found guilty of sexual intercourse or conduct with a minor above the age of 12, be charged with sexual intercourse or performing an indecent act with a young person instead of rape. The impact of this provision has been that minors above the age of 12 who are not protected by the Criminal Code cannot meet the requirement of unlawful sex, and thus cannot lawfully terminate under the Termination of Pregnancy Act. This is against section 78 of the Constitution that disallows people below the age of 18 to start a family. It also increases the number of girls below the age of 16 that are forced into marriage after falling pregnant, or surviving rape. The end result of the confusion between laws is that crimes are hardly deterred and matters are difficult to determine.

  • THE CRIMINAL CODE (REFORM & CODIFICATION) ACT

Section 64 of this Act allows perpetrators to commit sexual acts with minor children that are above the age of 12. While the wording does not actually state that, it allows the court to say that a survivor of what is commonly known as statutory rape was capable of consenting to sexual acts and accordingly¸ the perpetrator can be charged with sex with a minor. Not only does this clash with Constitutional provisions, it borderlines absurdity to allow 12-year-olds to consent to sex. This section has been instrumental in the perpetuation of harmful value judgments that hyper sexualize young girls and leave room for their exploitation by perpetrators that are familiar with the law.

Essentially, though child marriage has been caused by harmful religious and cultural practices, the legislature has failed to regulate its prevalence through deterrent laws. The inconsistencies in the system worsen the problem. To eliminate child marriage section 3 of the Marriage Bill criminalizes child marriage, but it is necessary to confront whether the normalized order of things can be changed by a 5-year prison sentence for committers of sexual crimes that have been poorly and loosely defined.

OTHER RELEVANT ACTS :

THE CHILDRENS ACT 5;06

CUSTOMARY MARRIAGES ACT 5:07

TRAFFICKING IN PERSONS ACT 9:25

GENERAL LAW AMENDMENT ACT 8:07