Author: Nqobani Nyathi
Researcher, Centre for Human Rights, University of Pretoria
Recently, there have been reports about a 14-year old child who died during childbirth. The reason why such a tragedy happened and may continue to happen is the State’s failure or unwillingness to eradicate child marriages. This article seeks to outline Zimbabwe’s legislative framework regarding child marriages and its obligations in terms of international law.
The legal position
Child marriage is illegal in Zimbabwe as held by Zimbabwe’s Constitutional Court. In January 2016, the apex court rightly found that the legislative provisions legalising child marriages were inconsistent with the Constitution of Zimbabwe. The Constitution has fairly strong provisions promoting and protecting the rights of children, including the right to be protected from sexual exploitation or any form of abuse. The Court also observed that historically there has been a “lack of common social consciousness on the problems of girls who became victims of early marriages.”
The fact that child marriages had to be declared illegal through litigation exposes this lack of common social consciousness. Zimbabwe had been clinging to the archaic law legalising the marriage of children in terms of both the Marriage Act 81 of 1964 and the Customary Marriages Act 23 of 1950.
Instead of conceding that child marriages were unconstitutional as per the constitutional provisions and obligations under international law, the Minister of Justice, Legal and Parliamentary, the Minister of Women’s Affairs, Gender and Community Development and the Attorney General opposed the order sought. On merits, they argued that the marriage of children was not unconstitutional. This reflects the State’s lack of will to address child marriages. Using the unsubstantiated claim based on patriarchal values, the respondent Ministers and the Attorney General claimed that girls physiologically and psychologically mature earlier than boys. They also said that the young women who had approached the Constitutional court challenging child marriages “should have taken responsibility for getting pregnant”. Their arguments to keep the child marriage legislation failed.
There is yet to be law reform focusing on aspects related to child marriages. The Marriages Bill is still before Parliament. Belatedly, it sets the minimum age of marriage at eighteen and seeks to criminally sanction anyone involved in illegally marrying a child.
International law obligations
Zimbabwe ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) on 15 April 2008. Previously, it had ratified the African Charter on the Rights and Welfare of the Child (African Children’s Charter) on 19 January 1995. Article 6(a) of the Maputo Protocol sets the minimum age of marriage for women at eighteen years. Article 21(2) of the African Children’s Charter prohibits betrothal and marriage of children. It also imposes an obligation on State parties to take action, including legislative reform to ensure that children are not married. In essence, on an international plane, Zimbabwe already had an obligation to eliminate child marriages before the 2013 Constitution. The failure to do so seems to have been deliberate or negligent.
The State is aware that despite the proscription of child marriages, some religious sects promote the marriage of children, hindering their access to health and the right to education. While it has claimed some efforts to eradicate child marriages, these are not supported by evidence, which is why children are still illegally “married”. The inequitable patriarchal norms, claiming religious justification in most instances, continue to perpetuate the illegal practice of child marriages.
In 2017, the African Commission on Human and Peoples’ Rights (African Commission) and the Committee of Experts on the Rights of the Child (ACERWC) adopted their first joint general comment on ending child marriages. The general comment reiterates the obligations that the State parties, including Zimbabwe, have towards the eradication of child marriages. It sets out various legislative, institutional and other measures.
The legislative measures are aimed at prohibiting the betrothal and marriage of boys and girls under the age of 18, without exception and ensuring that those who are entering into marriages have full and free consent to marry.
To implement these legislative measures, Zimbabwe must set up institutional measures that include the verification of the ages of those entering into marriage, registration of all marriages, data collection and allocating and budgeting resources to end child marriages.
Other obligations include addressing factors that contribute to child marriages such as poverty, harmful traditional and religious practices and gender inequality and discrimination. Additionally, there must be a national plan and early warning programme, development and implementation of special measures to prevent child marriage among children at higher risk, reparation of victims of child marriages and raising awareness through public information campaigns.
For a country that has fairly comprehensive constitutional provisions protecting the rights of children, there is not much left to be done in terms of legislative reform. It is concerning that about eight years after the Constitution came into effect and over five years since Zimbabwe’s apex court pronounced that child marriage is unconstitutional, there has not been any legislative reform to ensure that there are practical legislative measures in place to ensure that children are not married or betrothed. Again, there is no evidence of an effective monitoring system to combat child marriages.
Overall, the State has not done enough to protect the girl child. There is an urgent need to institute legislative, institutional and other reforms to prevent child marriages and also to support and protect children who have been illegally married, including allocation of sufficient resources towards the eradication of child marriages and reparations for children who fall victim to child marriages.
Holding religious sects that continue to practice this form of abuse accountable is critical. There is a need for a law that criminalises adults who have sex with children, without exception. This should be accompanied by sentences that emphasise deterrence. Also, there is an urgent need to provide comprehensive sexuality education and information programmes to encourage uptake of sexual and reproductive health services for girls. This may help to bring the obscure but pervasive cases of sexual abuse and exploitation to light. At the same time, the State must put in place access to justice programmes to ensure that there are available and effective remedies for children who are victims of sexual exploitation and abuse.
About the Author:
Nqobani Nyathi is a Zimbabwean lawyer, and a Doctoral Candidate and Researcher at the Centre for Human Rights, University of Pretoria.
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