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Why ruling against child marriages can’t be ignored

The Constitutional Court last week made a landmark ruling outlawing marriages of people under the age of 18, in what has been described as a major victory against child marriages.

Tendai Biti

Below the lawyer who represented child brides Loveness Mudzuru and Ruvimbo Tsopodzwa in the case, Tendai Biti writes exclusively for The Standard on the implications of the ruling.

Tendai Biti, secretary-general of Zimbabwe's Movement for Democratic Change addresses the media after the Southern African Development Community extraordinary meeting on Zimbabwe.

In male dominated social formations such as Zimbabwe, women find themselves victims of poverty, patriarchy, oppression, repression and alienation.

Women find themselves as innocent bystanders, mere objects in the development process.

Oftentimes, they work so hard in the barren fields for little results, yet at the same time burdened by marriage, giving birth and motherhood.

Oftentimes, their bodies are commodified and their thought processes and contributions are undermined by a world outlook that still views the same as necessary inconveniencies.

The decision passed this week by the Constitutional Court in respect of child marriages being outlawed, is a small but important and significant blow against the cobwebs of patriarchy, poverty and the exploitation of women, in particular the girl child.

Child marriages are rife in Zimbabwe and internationally. The 2014 multiple indicator cluster survey report, states that for people aged between 20 and 49 years, one in three women was married or got in a union before the age of 18.

That same report shows that 24,5% of young people aged between 15 and 19 years were married before the age of 18.

Indeed, the above statistics are not unique to Zimbabwe. Average estimates indicate that globally 25 000 girls are married before the age of 18 on a daily basis.

The impact of child marriages was captured brilliantly by the judgement of the Constitutional Court.

The first obvious consequence is that child marriages enforce the gendered notion of poverty and powerlessness.

As the judgement shows; “Although child marriages most often stem from poverty, powerlessness, it only further reinforces the gendered notions of poverty and powerlessness, stultifying the physical, mental, intellectual and social development of the girl child and heightening the social isolation of the girl child.

“Evidence shows that child marriages are a tool of oppression which subordinates not just the woman but her family. Not only do child marriages perpetuate an inter-generational cycle of poverty and lack of opportunity. It reinforces the subordinated nature of communities that traditionally serve the powerful classes by giving a child in marriage to an older male.”

Thus by proscribing child marriages, the court has made a huge statement in protecting the rights of children.

In this regard, the Constitutional Court judgement should never be underestimated.

The behaviour of communities, sects and groupings will have to change to comply with the judgement.

It is gratifying to note that the leaders of the apostolic faith have embraced the judgement.

Traditional leaders, churches and civic society should play their part. There is no doubt that the judgement will have an international impact.

One will hope that international activists and lawyers in the Far East and Asia where child marriages are rife will find life in the judgement.

What is important is for the legislature to ensure that Zimbabwe laws are harmonised to the judgement.

There is urgent need for Parliament to amend the Marriages Act and the African Marriages Act to provide criminal sanctions to those who “marry” children.

Other laws such as the Criminal Procedure and Evidence Act; and the Criminal Codification Act also need harmonisation.

One aspect which the policymakers need to look at in light of the judgement is the issue of the age of sexual consent and criminal capacity to commit offences.

The Child Protection and Adoption Act needs to be replaced by a brand new one that recognises the provision of Section 81 of the Constitution as well as the implicit consequence of the judgement.

A mere amendment of the Act will certainly not be enough.

However, judicial and legislative reforms are not enough, due to the fact that child marriages occur largely as a result of poverty.

In a country such as ours where the per capita income is as little as $200 and most of the population is in the informal sector, there is need to address the challenges that lie in poverty and exclusion.

Regrettably, the government appears clueless on ways of turning around the economy.
Apart from poverty, the social crisis in this country is contributing to the rise in child marriages. The social contract in Zimbabwe is still broken.
They look after child-run homes as a result of disease and divorce.

Many parents have fled to the Diaspora leaving children to fend for themselves. The divorce rate in Zimbabwe is now the highest in sub-Saharan Africa in per capita terms. So it is quite clear that the duty of society is to re-fabricate and restore family unity.
The creation of strong institutions will simply be essential.

The long and short of the above is that the judiciary has done its part. It is now left to the State and society to carry out the unfinished business of the judgement.

The issues of education, social cohesion, economic transformation and legislative harmonisation are not the domain of the courts.

For now, however, it suffices to thank the two litigants, Loveness Mudzuru and Ruvimbo Tsopodzwa, who had the courage to bring the court application.

In the case of Tsopodzwa, her husband and family were against the signing of court papers.

The organisations too that were involved in the court application also need to be commended.

These include women’s organisations, lawyers’ organisations and Veritas Zimbabwe.

Finally, indebtness must be expressed to the Bench for penning a judgement, which was phenomenal and the tasks that need to be done.

Tendai Biti is a renowned lawyer, former Finance minister and People’s Democratic Party president.

One Response to Why ruling against child marriages can’t be ignored

  1. Webster Sibanda January 27, 2016 at 5:50 pm #

    In as much as I am more than 100% in agreement with the Constitutional Court Ruling on 18 years and above marriages I still have a problem on how such a tall order will be implemented.

    in the remote areas of Binga among the Tonga where marriage at 14+ is a norm rather than a probability and where the culture promotes marriage at that age, how will the law make the whole community to change all of a sudden and for the girls to wait for another 4 years to get married. More- over a majority of marriages in those places are not registered and the courts will never know about them unless there is a misfortune and somebody in reported. A rare occurrence indeed!

    How will that be possible in Hwange among the Nambya where after the Spurus ( the cultural gatherings or Umbuyisos in August September) where under the cover of darkness the girls as young as 13 indulge in sex with boys as young as 17 and early in the mornings they would be sitting at the center of the boy’s home for attention by the elders or the new in- laws to solemnise their arrival into the family.

    How will such a modern and good ruling be implemented in Tsholotsho and Plumtree among the BaKalanga where marriage at 16 to 17 is a common feature. Also all around Zimbabwe sex with 12 year olds have been found to be a common feature and occurrence.

    The ruling may be a land mark on paper but with such a modern society that we find ourselves in in Zimbabwe it will be difficult to implement or just impossible to monitor. The victims to this new ruling will only be the few cases that will be reported to the police otherwise the so- called land mark ruling does not change anything at all. It is just a ruling for the paper- tigers only and not for the affected or newly found victims.

    There is need for far more consultation in such important rulings that impinge on the Cultures of the sixteen societies that have lived together in Zimbabwe since colonialisation because the acculturation that has taken shape for almost a century now should been taken into account before such a land mark ruling was made.

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