Ms. Rebecca Gyumi, the founder and director of Children’s Rights Organisation, a local charity promoting girls’ rights, brought an action before the High Court of Tanzania challenging the constitutionality of Sections 13 and 17 of the Law of Marriage Act of Tanzania (Cap. 29 R.E. 2002). This Act allows girls to marry when they are 15 years old with parental consent and 14 years old with the permission of a court. The petition sought recognition that these provisions violated girls’ rights to equality and non-discrimination and undermines their access to education.
The High Court of Tanzania stated that Sections 13 and 17 of the Law of Marriage Act were unconstitutional because they breached Articles 12(1) and 13(1) & (2) of the Constitution of Tanzania, which protect against gender discrimination and guarantees equality before the law.
The Court held that the law’s differential treatment of girls and boys, which permitted the girl-child to marry underage with the consent of a third party, but only permitted males to marry upon reaching age 18, was discriminatory and infringed the right to equality. The Court also reasoned, in part, that a 14-year-old girl is vulnerable and may not be able to understand the social, physical, psychological, financial, and other challenges of early marriage. The Court also noted that the Law of Marriage Act was outdated and that since its enactment there has been considerable legislation to protect girls’ dignity and integrity.
The Court therefore declared the impugned provisions unconstitutional and ordered the government to review the law in accordance with its obligations under Article 6 of the Maputo Protocol (which guarantees men and women equal rights in marriage) and Article 21(2) the African Charter on the Rights and Welfare of the Child (which prohibits child marriage), with a view to setting the age of marriage at 18 without any exceptions.