Press Statement on Constitutional Court Application on ending child marriages
2 September 2021
Yesterday Afternoon 1 September 2021, LEAD President Linda Tsungirirai Masarira and her co applicants Precious Musarurwa and Munyaradzi Midzi applied for direct access to the constitutional court on the matter of aligning laws in our quest to end child marriages, sexploitation and abuse.
Section 2 (1) of Amendment No.20 of the Constitution of Zimbabwe promulgated on the tramping sense of the Constitution as the supreme law of the land.
The law states that the Constitution is the Supreme law of the land and any law, practice, custom or conduct inconsistent with it is invalid to the extent of it’s inconsistency.
More so, in terms of section 78 (1) and (2), the Constitution provides for the legal age for marrying and that this must be done out of free will.
The law states that every person who has attained the age of eighteen years has the right to found a family and that no person may be compelled to be married against their will.
Thus, it goes without saying that the legal age for marriage must be eighteen and not any age less. However, it is note worthy that the Zimbabwean marriage laws enacted through the Parliament of Zimbabwe through the Marriages Act [Chapter5:11] are inconsistent with the supreme law of the land.
This can be evidenced by section 20 (2) of the aforementioned Act which provides for the conditions for marrying minors.
The Act provides that the marriage of a minor shall not be solemnized without the consent in writing of the persons who are, at the time of the proposed marriage, the legal guardians of such minor or, where a minor has only one legal guardian, without the consent in writing of such legal guardian:
(i) if the consent of any legal guardian cannot be obtained by reason of absence or inaccessibility or by reason of his being under any disability, a judge of the High Court may grant consent to the marriage, and the consent of the judge so given shall have the same effect as if it had been given by the legal guardian whose consent cannot be obtained;
(ii) if any legal guardian refuses his consent, a judge of the High Court may grant consent to the marriage, and the consent of the judge so given shall have the same effect as if it had been given by the legal guardian whose consent is refused.
Section 22 of the Act differentiate the age of marriage for girls as it states that
(1) no boy under the age of eighteen years and no girl under the age of sixteen years shall be capable of co ntracting a valid marriage except with the written permission of the Minister, which he may grant in any particular case in which he considers such marriage desirable:
(i) such permission shall not relieve the parties to the proposed marriage from the obligation to comply with all other requirements of this Act;
(ii) such permission shall not be necessary if by reason of any such other requirement the consent of a judge is necessary and has been granted.
In essence, the marriage laws prior to the Marriages Act is inconsistent because it legalizing marriage of a sixteen year old girl children as opposed to boys.
Moreover, consent for the marriage is sought from another person other than the girl child hence, negating the freedom of will for a girl child to marry out of their will.
In this respect, the aforementioned provisions of the Marriages Act [Chapter 5:11] must be repealed because they are invalid to the extent of their inconsistency.
Articulating further, the Customary Marriages Act [Chapter5:07] prohibited pledging of girls and women in section 11 as it promulgated that
(1) Any agreement in which a person, whether for consideration or otherwise, pledges or promises a girl or woman in marriage to a man shall be of no effect.
Therefore, marriage must be done out of free will. We pray for the alignment of laws to protect the girl child and for section 70 of the criminal law to be declared inconsistent and revoked.
Statement Issued by: EVERJOY CHIDINDI (LEAD Presidential Spokesperson)
She can be contacted on- 0783764003