Two women (“Applicants”), aged 18 and 19 asked the Court to interpret and apply constitutional provisions to the law on marriage to address the problem of early marriages which constituted an infringement of the fundamental rights of the girl child. They argued that Section 78(1), as read with Section 81(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013 (the “Constitution”), should be interpreted to mean that a person below the age of 18 years cannot marry under any law. They also sought a declaratory order to state: “(1) [t]he effect of s 78(1) of the [Constitution] is to set 18 years as the minimum age of marriage in Zimbabwe; (2) no person, male or female in Zimbabwe may enter into any marriage including an unregistered customary law union or any other union including one arising out of religion or a religious rite before attaining the age of eighteen (18); (3) Section 22(1) of the Marriage Act [Chapter 5:11] is unconstitutional; (4) [t]he Customary Marriages Act [Chapter 5:07] is unconstitutional in that it does not provide for a minimum age limit of eighteen (18) years in respect of any marriage contracted under the same, and (5) [t]he respondents pay costs of suit.”
The Court examined the following issues: (1) whether the applicants had sufficient standing interest under Section 85(1)(a) or (d) of the Constitution to institute the proceedings claiming the relief they sought; (2) whether Section 78(1) of the Constitution sets the age of 18 years as the minimum age for marriage in Zimbabwe; and (3) whether Sections 78(1) and 81(1) of the Constitution rendered invalid Section 22(1) of the Marriage Act and any other law authorizing a girl under the age of 18 to marry.
The Court determined that, while the petitioners do not have standing under Section 85(1)(a) of the Constitution to bring this action, they did have the right to bring it under the public interest provisions of Section 85(1)(d), because the interests of children subjected to early marriages were a public interest concern.
The Court looked to Zimbabwe’s obligations to various international human rights treaties and conventions to interpret and apply the meaning of Section 78(1) as read with Section 81(1) of the Constitution. It also considered the attitude of international law toward child marriage, especially through the Convention on the Rights of the Child (“CRC”) and the African Charter on the Rights and Welfare of the Child (“ACRWC”). The Court also noted that a child is defined as a person below the age of 18, and that child marriage is defined as marriage of a person under the age of 18.
The Court found that Section 22(1) of the Marriage Act was enacted in 1965 at a time when states were guided by Article 16 of the Universal Declaration of Human Rights (“UDHR”) and the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (“Marriage Convention”), which did not provide adequate protection for children before the CRC and ACRWC. Zimbabwe therefore set minimum ages of consent based on norms other than the protection of the rights of children, so that the Marriage Act permitted marriage of girls under the age of 18.
The Court highlighted that the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), which entrenched the principle of equality of men and women, reserved the right to marry and create a family to both men and women of full age (Article 16). Article 16(2) of CEDAW prohibited child marriage, though it did not define “child,” however the full implications of this provision were set when the CRC defined “child” in 1990.
The Court noted that CEDAW and the CRC created a progressive recognition of the harm to children of child marriages and the negative implications on the enjoyment of the rights of the child.
When the ACRWC came into force in 1999, Article 21(2) clearly and unambiguously prohibited child marriages and specified the minimum age of marriage to be 18 years for any person. The Court recognized that Section 78(1) of the Constitution was enacted to comply with the obligations of Zimbabwe under Article 12(2) of the ACRWC. The Court therefore held that Section 78(1) should be interpreted to mean that a person who has not attained the age of 18 has no legal capacity to marry, so that the legal effect of the provision is to set the minimum age of marriage at 18.
According to the Court, by defining a child as a person below the age of 18, Section 81(1) of the Constitution supported the application of Section 78(1). Therefore the enjoyment of the right to enter into marriage and create a family is guaranteed to a person aged 18 years or older and is legally delayed for a person under the age of 18.
The Court clarified that Section 78(1) had effectively abolished all types of child marriages without any exception for any religious, customary, or cultural practices. Further, it eliminated the practice of having someone else, such as parents or public officials, consent to marriage on the person’s behalf. Therefore “no law could validly give a person in Zimbabwe who is aged below eighteen years the right to exercise the right to marry and found a family without contravening Section 78(1) of the Constitution.”
The Court held that Section 22(1) of the Marriage Act is inconsistent with the provisions of Section 78(1) of the Constitution to the extent that it provides that a girl who has attained the age of 16 can marry, and therefore that it is invalid.
The Court also declared that starting January 20, 2016, no person, male or female, may enter into any marriage, including an unregistered customary law union or a religious union, before reaching the age of 18.
The Zimbabwe Constitutional Court recognized and articulated many of the issues that are associated with child marriages. Many countries in Africa have ratified the ACRWC and are obligated to abolish child marriages under Article 21 of the treaty. As the Court recalls, these obligations include legislative measures such as prohibiting persons below 18 from marrying. Some countries in Africa have yet to take such legislative measures. However, States must address questions regarding enforcement of these laws, and whether the criminalization of child marriage would be the best way to ensure compliance with domestic law.