The two applicants are young women aged 19 and 18 years respectively. They have approached this Court in terms of section 85(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”) which came into force on 22 May 2013.They complain about the infringement of the fundamental ...
The two applicants are young women aged 19 and 18 years respectively. They have approached this Court in terms of section 85(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”) which came into force on 22 May 2013.
They complain about the infringement of the fundamental rights of girl children subjected to early marriages and seek a declaratory order in the terms that:
“1. The effect of section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 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. The 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.
5. The respondents pay costs of suit.”
The application arose out of the interpretation and application by the applicants, on legal advice, of section 78(1) as read with section 81(1) of the Constitution.
Section 78(1) of the Constitution is one of the provisions in Chapter 4 which enshrine fundamental human rights and freedoms. It provides:
“78 Marriage Rights
(1) Every person who has attained the age of eighteen years has the right to found a family.
(2) No person may be compelled to enter into marriage against their will.
(3) Persons of the same sex are prohibited from marrying each other.”
Section 81(1) of the Constitution enshrines the fundamental rights of the child.
The fundamental rights, the alleged infringement of which are relevant to the determination of the issues raised by the application, are:
“81 Rights of Children
(1) Every child, that is to say, every boy and girl under the age of eighteen years, has the right –
(a) To equal treatment before the law, including the right to be heard;
(b)…,.
(c)…,.
(d) To family or parental care or to appropriate care when removed from the family environment;
(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect, or any form of abuse;
(f) To education, health care services, nutrition, and shelter;
(g)…,.
(h)…,.
(2) A child's best interests are paramount in every matter concerning the child.
(3) Children are entitled to adequate protection by the courts, in particular, by the High Court as their upper guardian.”
The protection of the fundamental rights of the child is guaranteed under section 44 of the Constitution.
The provision imposes an obligation on the State and every person, including juristic persons, and every institution and agency of the Government, at every level, to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4.
The applicants contend that on a broad, generous, and purposive interpretation of section 78(1) as read with section 81(1) of the Constitution, the age of eighteen years has become the minimum age for marriage in Zimbabwe.
They argued, that, section 78(1) of the Constitution cannot be subjected to a strict, narrow, and literal interpretation to determine its meaning if regard is had to the contents of similar provisions on marriage and family rights found in international human rights instruments from which section 78(1) of the Constitution derives inspiration.
The applicants claimed the right to approach the court seeking the relief they seek under section 85(1)(a) and (d) of the Constitution. In paragraph 16 of the founding affidavit, the first applicant, with whom the second applicant agreed, states:
“16:…,. The issues I raise below are in the public interest, and, therefore, I bring this application in terms of section 85(1)(a) and (d) of the Constitution of Zimbabwe.”
In paragraph 21 of the founding affidavit, the first applicant states:
“21. The instant application is an important public interest application that seeks to challenge the law in so far as it relates to child marriages in Zimbabwe. It is motivated by my desire to protect the interests of children in Zimbabwe.”
At the time sections 78(1) and 81(1) of the Constitution came into force, section 22(1) of the Marriage Act [Chapter 5:11] provided, that, a girl who had attained the age of sixteen years was capable of contracting a valid marriage. She had to obtain the consent, in writing, to the solemnization of the marriage of persons who were, at the time of the proposed marriage, her legal guardians, or, where she had only one legal guardian, the consent, in writing, of such legal guardian.
A boy under the age of eighteen years and a girl under the age of sixteen years had no capacity to contract a valid marriage except with the written permission of the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”).
A child was defined under section 2 of the Child Abduction Act [Chapter 5:05] and section 2 of the Children's Protection and Adoption Act [Chapter 5:06] to be a person under the age of sixteen years.
The applicants contend that since “a child” is now defined by section 81(1) of the Constitution to mean a girl and a boy under the age of eighteen years, no child has the capacity to enter into a valid marriage in Zimbabwe since the coming into force of sections 78(1) and 81(1) of the Constitution on 22 May 2013.
They contend further, that, section 22(1) of the Marriage Act, or any other law which authorises a girl under the age of eighteen years to marry, infringes the fundamental right of the girl child to equal treatment before the law enshrined in section 81(1)(a) of the Constitution.
The argument was that section 22(1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.
The respondents opposed the application and the granting of the relief sought by the applicants on two alternative grounds.
They took as a point in limine the contention, that, the applicants lacked the right to approach the court claiming the relief sought.
The argument made on behalf of the respondents was that although the applicants claimed to have approached the court in terms of section 85(1)(a) of the Constitution, they did not allege that any of their own interests was adversely affected by the alleged infringement of the fundamental rights of the girl child.
The respondents pointed to the fact, that, none of the applicants alleged that she entered into marriage with the boy who made her pregnant. They said that the applicants alleged that they got pregnant, stopped going to school, and went to live with the boys concerned at their parents homes. The applicants did not suggest that they entered into unregistered customary law unions.
The argument was that the applicants were no longer children protected from the consequences of early marriage by the fundamental rights of the child enshrined in section 81(1) of the Constitution.
On the question whether the applicants had locus standi to approach the court, acting in the public interest, under section 85(1)(d) of the Constitution, the respondents contend that the applicants failed to satisfy the requirements of standing under the relevant provision.
They alleged in the opposing affidavits, that, the applicants were required to give particulars of girl children whose fundamental rights had been infringed and on whose behalf they purported to act.
It was common cause, that, the applicants made no reference, in the grounds of the application, to any particular girl or girls whose rights had been, were being, or were likely to be infringed by being subjected to child marriage in terms of section 22(1) of the Marriage Act or any other law.
The argument was that the applicants had not produced facts to support their claim to locus standi under section 85(1)(d) of the Constitution.
The grounds of opposition to the application on the merits are straight forward.
The respondents denied that section 78(1) of the Constitution has the effect of setting the age of eighteen years as the minimum age for marriage in Zimbabwe. Their reason for the denial was that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.”
The contention is that the meaning of section 78(1) of the Constitution is apparent from the grammatical and ordinary meaning of the language used in giving the “right to found a family.”
The respondents contend, further, that section 78(1) of the Constitution does not give a person who has attained the age of eighteen years the “right to enter into marriage.”
The minor premise on which the contention is based is that the “right to found a family” does not imply the right to marry.
The respondents supported their denial of the contention that section 78(1) of the Constitution sets the age of eighteen years as the minimum age of marriage by the argument advanced on their behalf, that, section 78(1) of the Constitution is not amenable to a broad, generous, and purposive interpretation in the determination of its meaning.
The argument was that it is only accommodative of a literal interpretation.
The effect of the respondents argument was that the question of interpretation did not arise as the words used were clear and un-ambiguous.
Having denied the allegation that section 78(1) of the Constitution sets the age of eighteen years as the minimum age for marriage, the respondents went on to deny that section 22(1) of the Marriage Act, or any other law which authorizes a girl child who has attained the age of sixteen years to marry, contravenes section 78(1) of the Constitution.
They raised as a rationale for the difference in the treatment of a girl child and a boy child under section 22(1) of the Marriage Act - the old notion that a girl matures physiologically and psychologically earlier than a boy.
They put forward the notion of the alleged difference in the rates of maturity in the growth and development of girls and boys as justification for legislation which condemns a girl child, under the pretext of marriage, to a life of sexual exploitation and physical abuse.
The respondents took the view, that, there was nothing unconstitutional about legislation which authorised child marriage.
They suggested that the applicants were the cause of the problem.
The argument was that they should have taken responsibility for getting pregnant. The contention is that instead of seeking to have legislation on child marriage declared unconstitutional, the applicants should have taken advantage of their painful experiences to embark on advocacy and educational programmes to share their experiences with girl children. In that way, the argument went, they would give the girl children the skills and knowledge necessary to enable them to make the right choices on matters of sexual and reproductive health.
Four questions arise for determination from the positions taken by the applicants and the respondents. They are:
(1) Whether or not the applicants have, on the facts, locus standi, under section 85(1)(a) or section 85(1)(d) of the Constitution, to institute the proceedings claiming the relief they seek.
(2) If they are found to have standing before the Court, does section 78(1) of the Constitution set the age of eighteen years as the minimum age for marriage in Zimbabwe?
(3) If the answer to issue No.2 is in the affirmative, did the coming into force of sections 78(1) and 81(1) of the Constitution, on 22 May 2013, render invalid section 22(1) of the Marriage Act [Chapter 5:05] and any other law authorizing a girl who has attained the age of sixteen to marry?
(4) If the answer to issue No.3 is in the affirmative, what is the appropriate relief to be granted by the Court in the exercise of the wide discretion conferred on it under section 85(1) of the Constitution....,.
MERITS
The respondents case on the merits is that section 78(1) of the Constitution does not set the age of eighteen years as the minimum legal age of marriage.
They argued that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.” The subsection does not, in express terms, give the person concerned the 'right to marry'.
According to the respondents, section 22(1) of the Marriage Act, or any law which authorizes a girl child who has attained the age of sixteen to marry, is not inconsistent with section 78(1) of the Constitution.
The applicants took issue with the literal interpretation of section 78(1) of the Constitution by the respondents. They contend, that, the meaning of section 78(1) of the Constitution can only be determined on the basis of a broad, generous, and purposive interpretation of its provisions.
INTERNATIONAL CONVENTIONS AND TREATIES
Context of Section 78(1) of the Constitution and Section 22(1) of the Marriage Act
The court is faced with the question of interpretation of section 78(1) as read with section 81(1) of the Constitution. It is also faced with the question of interpretation of section 22(1) of the Marriage Act and the effect of the application of section 78(1) of the Constitution on its meaning.
Section 46(1)(c) of the Constitution imposes an obligation on a court, when interpreting any provision of the Constitution contained in Chapter 4, to take into account international law and all treaties and conventions to which Zimbabwe is a party.
Both section 22(1) of the Marriage Act and section 78(1) of the Constitution were born out of provisions of international human rights law prevailing at the time of their respective enactment.
The meaning of section 78(1) of the Constitution is not ascertainable without regard being had to the context of the obligations undertaken by Zimbabwe under the international treaties and conventions on matters of marriage and family relations at the time it was enacted on 22 May 2013.
In deciding whether section 22(1) of the Marriage Act, or any other law which authorises child marriage, infringes the fundamental rights of girl children enshrined, guaranteed, and protected under section 81(1) as read with section 78(1) of the Constitution, regard must be had to the contemporary norms and aspirations of the people of Zimbabwe as expressed in the Constitution.
Regard must also be had to the emerging consensus of values in the international community, of which Zimbabwe is a party, on how children should be treated and their well-being protected so that they can play productive roles in society upon attaining adulthood.
The object of the interpretation of section 78(1) as read with section 81(1) of the Constitution, and of section 22(1) of the Marriage Act, should be to ensure that the interpretation resonates with the founding values and principles of a democratic society based on openness, justice, human dignity, equality and freedom set out in section 3 of the Constitution, and regional and international human rights law.
In considering the meaning of section 22(1) of the Marriage Act as a norm of behaviour towards children, the court has to take into consideration the current attitude of the international community, of which Zimbabwe is a party, on the position of the child in society and his or her rights.
Section 78(1) as read with section 81(1) of the Constitution, testifies to the fact that Zimbabwe is a signatory to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).
By signing these documents, Zimbabwe expressed its commitment to take all appropriate measures, including legislative, to protect and enforce the rights of the child as enshrined in the relevant conventions to ensure that they are enjoyed in practice.
Section 78(1) as read with section 81(1) of the Constitution must be interpreted progressively.
Child marriage is defined by the United Nations Children's Fund (UNICEF) (2011) Child Protection from Violence, Exploitation and Abuse Report as “a formal marriage or informal union before age 18.”
The term “child marriage” covers marriages of persons under the age of 18 years.
The minimum age of marriage was prescribed by the Committee on the Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW Committee) to be 18 years.
This was a result of the definition of “child” by Article 1 of the Convention on the Rights of the Child (CRC) which came into force on 2 September 1990.
Article 1 of the Convention on the Rights of the Child (CRC) defines 'a child' to mean “every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier.”
Section 22(1) of the Marriage Act was enacted in 1965 as a response to omissions and exceptions that existed in the international human rights provisions on the protection of children that existed at the time.
The provisions that existed at the time were found in 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 (the Marriage Convention).
The common feature of the many conventions was the failure to specify for States Parties the minimum age of marriage as a means of protecting children. They left the matter exclusively to domestic law.
It is striking how poorly international human rights conventions addressed the practice of child marriage.
Apart from their general lack of vision, the conventions, not being self executing, constituted promises by the adopting parties to enact domestic legislation and adopt other measures to achieve the desired objectives.
Until 1990, almost all the conventions which contained provisions on marriage avoided specifying a mandatory minimum age of marriage for the States Parties.
While many conventions provided that marriage must be freely consented to by the bride and groom, there was no recognition of the special vulnerabilities of children where “consent” could be easily coerced or unduly influenced by adults: see Elizabeth Warner “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004) Article 1…,.
Under Article 16(1) of the Universal Declaration of Human Rights (UDHR), the United Nations General Assembly proclaimed that only men and women of full age, without any limitation due to race, nationality, or religion, have a right to marry and to found a family.
The United Nations General Assembly, by necessary implication, declared that a person who had not attained the age of majority could not exercise the right to marry and to found a family.
Article 16(2) of the of the Universal Declaration of Human Rights (UDHR) proclaimed that marriage shall be entered into only with free and full consent of the intending spouses. By necessary implication, a person below the age of majority was not capable of giving free and full consent to marriage.
Marriage was to be for adult persons only, and, consent to marriage given on behalf of the intending spouses, was prohibited.
The problem with Article 16(1) and (2) of the Universal Declaration of Human Rights (UDHR) was not only that it was a declaration with no binding force on Member States, it also did not specify what the age of majority should be.
In 1962, the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) was expected to resolve the issue of the standard age of majority for purposes of marriage.
The Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) required States Parties to take legislative action to specify a minimum age for marriage. It stipulated, that, no marriage shall be legally entered into by a person under the minimum age, except where a competent authority granted a dispensation as to the age, for serious reasons, in the interest of the intending spouses.
According to a non-binding recommendation accompanying the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention), States Parties were directed not to specify a minimum age for marriage less than 15 years. States Parties were permitted to specify a minimum age for marriage by reference to what they considered to be the age of puberty.
The problem with the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) is that it did not specify for States Parties a minimum age of marriage. It left States Parties free to set their own minimum ages for marriage.
As a result, States Parties set minimum ages of marriage as low as sixteen years for girls whilst setting different and usually higher ages for boys.
The other problem was that the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) created exceptions permitting marriages of girls below the minimum age where Government officials approved of the marriages.
The effect of these provisions was that once a girl was married, however young she was, she was treated, under domestic law, as an adult.
Laws for the protection of children no longer reached her.
It was in the context of the omissions and exceptions in the provisions of international human rights law that the Marriage Act was enacted.
Section 22(1) of the Marriage Act prohibited marriage of a boy under the age of eighteen and of a girl under the age of sixteen except with the written permission of the Minister when he or she considered such marriage desirable.
The written permission, which was intended to be granted prior to solemnization of the marriage, could be granted after the solemnization where the Minister considered the marriage desirable and in the interests of the parties concerned.
Section 22(1) of the Marriage Act clearly permitted marriage of a girl who had attained the age of sixteen years.
Section 20(1) of the Marriage Act required that consent, in writing, be given to the solemnization of the marriage by the legal guardians of the girl.
Legal guardian was defined to include the mother of the girl where she and the father of the minor were living together lawfully as husband and wife or were divorced or were living apart and the sole guardianship of the minor had not been granted to either of them by order of the High Court or judge thereof.
Consent to marriage could be granted by a judge of the High Court where the consent of the legal guardian could not be obtained by reason of absence, or inaccessibility, or by reason of his or her being under any disability.
Section 21(1) of the Marriage Act provided that where a marriage which required the consent of a legal guardian, or legal guardians, had been solemnized without such consent, it became a valid marriage, if, within a period of six weeks, calculated from the date on which a legal guardian or legal guardians first had notice of such marriage, he or she or they did not make an application to the High Court for an order setting aside the marriage and declaring it void.
What is clear from the interpretation of the relevant provisions of the Marriage Act is that once a child got married, with the written permission of the Minister, and a girl who had attained the age of sixteen got married, they were treated as persons of full age to whom protection of the rights of the child was lost.
On 3 September 1981, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) came into force.
On the principle of equality of men and women, Article 16(1) provided that States Parties shall take all appropriate measures to ensure that men and women have the same right to enter into marriage and that each spouse has a right to enter into marriage only with his or her free and full consent.
By necessary implication, Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) reserved the right to marry and to found a family to men and women of full age.
Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides:
“2. The betrothal and the marriage of a child shall have no legal effect and all necessary action, including legislation, shall be taken to specify a minimum age of marriage and to make the registration of marriages in an official registry compulsory.”
Although Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibited child marriage, section 22(1) of the Marriage Act could not, at the time, be condemned for permitting child marriage in the absence of a specific provision in the international human rights law setting a minimum legal age for marriage.
Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) did not even define “child”.
The problem of lack of definition of “child” in Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was solved by the coming into force, on 2 September 1990, of the Convention on the Rights of the Child (CRC).
In Article 1, the Convention on the Rights of the Child (CRC) provided that:
“For the purposes of the present convention, a child means every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier.”
The Convention on the Rights of the Child (CRC) makes provision for the protection of the rights of the child.
Article 2 of the Convention on the Rights of the Child (CRC) prohibits “discrimination” of any form against children, including on the basis of sex.
Article 3 of the Convention on the Rights of the Child (CRC) provides that “in all actions concerning children, the best interests of the child shall be a primary consideration” and that States Parties must “undertake to ensure the child such protection and care as is necessary for his or her well-being.”
The Convention on the Rights of the Child (CRC) also provides, that, all children shall have the right to protection from all forms of physical or mental violence, injury, abuse, maltreatment or exploitation; the right to health; the right to education; the right to protection from abduction, sale, or trafficking; the right to rest and leisure; the right to protection from economic exploitation; and the right to protection from all forms of exploitation prejudicial to the child's welfare.
In Article 24.3 the Convention on the Rights of the Child (CRC) provides that States Parties shall take measures to abolish “traditional practices prejudicial to the health of children.”
Although the Convention on the Rights of the Child (CRC) did not specify the age of eighteen as the minimum age for marriage, in defining “a child” it provided the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee and the CRC Committee with the basis for declaring the minimum age of marriage to be eighteen years.
This is because Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides, in express terms, that the “marriage of a child shall have no legal effect.”
ELIZABETH WARNER, in the article “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004)…, highlights the shortcomings of the Convention on the Rights of the Child (CRC) in these terms:
“The Convention on the Rights of the Child, intended as a comprehensive treaty on the rights of children, contains no explicit provision on marriage, which is odd, if not downright baffling (perhaps the drafters thought the subject was already covered by the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriages Convention)).
Article 1 of the Convention on the Rights of the Child provides that 'a child means every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier'.
The word 'majority' is deliberately not defined in the Convention on the Rights of the Child and is left to local law to determine.
Consider how problematic this provision is in the case of a married female child.
In a society where a woman's value is defined entirely by reference to her marital status and her ability to bear children, a married female is likely to be viewed as having attained adult or 'majority' status regardless of her age, all the moreso once she has borne a child of her own.
One could therefore argue, that, the entire Convention on the Rights of the Child becomes irrelevant to her at that point.
And, indeed, many domestic laws explicitly provide that a person attains majority upon marriage, regardless of her age, thus creating an exception to the general 'rule of 18' that eviscerates the Convention on the Rights of the Child mandate where it is most needed.”
The Convention on the Rights of the Child (CRC) has also been criticised for not applying to girls and boys equally, in that, it does not give due consideration to particularly harmful situations that may be specific to either girls or boys.
ASKARI LADAN, in an article titled “The Convention on the Rights of the Child; The Necessity of Adding a Provision to Ban Child Marriages” (1998) 5 ILSA Journal of International and Comparative Law 123, explains that although the Convention on the Rights of the Child (CRC) was “designed to be gender blind” violations that primarily affect boys (i.e. child soldiers) are covered under CRC Article 38.
The same consideration is not given to violations predominantly affecting girls in child marriage.
Askari Ladan points out, that, although the issue of child soldiers may at times impact upon the girl-child, the primary target of concern is the boy–child.
Similarly, even though the issue of child marriage is of greater concern for girls, it could also apply to boys.
But, the failure of the Convention on the Rights of the Child (CRC) to protect the girl child against a particular practice that is primarily of concern to her is unfair in light of the fact that special consideration is given to an issue where boys are particularly vulnerable.
Such a gap reveals discrimination against the girl-child in the sense, that, the reality of her situation is not taken into account or specifically addressed.
There is need to fully acknowledge that a child's gender can detrimentally affect the realisation of his or her right.
The use of gender–neutral language throughout the Convention on the Rights of the Child (CRC) may have been intended to promote equality and the inclusiveness that was lacking when the language of human rights was written solely from a male perspective.
JEWEL AMOAH, in an article titled “The World on Her Shoulders: The Rights of the Girl–Child in the Context of Culture & Identity” Essex Human Rights Review Vol.4 No.2, September 2007 argues further, that, the inclusion of gender neutral language, on its own, is also not an ideal final solution. She concludes at p15 that:
“The failure to make specific reference to the girl–child and conditions that exacerbate her vulnerability is itself a form of discrimination against her…,. It is not enough that the language simply be gender–neutral; but, where there are specific gendered human rights abuses, then these must be directly addressed.”
Askari Ladan's solution to the Convention on the Rights of the Child's failure to thoroughly consider gender specific rights violations is to have the concept of gender equality established as a peremptory norm. She states:
“The problem of placing girls under the general category of 'child' is alleviated if gender equality is recognised as a peremptory and therefore non-derogable norm. Because it is gender–neutral, the term 'child' as used in the Convention on the Rights of the Child, avoids certain additional violations that are specific to girls only.
Thus, girls sometimes fail to be completely protected under the provisions of the Convention on the Rights of the Child.
By identifying gender equality as a jus cogens norm, the gender neutral language of the Convention on the Rights of the Child will no longer detrimentally affect girls human rights. Instead, girls rights will be protected irrespective of whether the treaty provisions are specific or general since gender equality will be the standard against which violations will be measured.”
It is, however, accepted by the critics, that, notwithstanding its shortcomings, the Convention on the Rights of the Child (CRC), as it stands, is, in many ways, a milestone in child and human rights.
It was after the Convention on the Rights of the Child (CRC) guaranteed specific “Rights of the Child” that child marriage could be viewed as a social evil in terms of its consequences on the girl child.
Study after study began to define child marriage as marriage of “a child” as defined under Article 1 of the Convention on the Rights of the Child (CRC).
The studies showed how child marriage infringed the fundamental rights of the girl–child guaranteed by the Convention on the Rights of the Child (CRC), particularly; the right to education; the right to be protected from all forms of physical or mental violence, injury, or abuse, including sexual abuse; the right to be protected from all forms of sexual exploitation; the right to the enjoyment of the highest attainable standard of health; the right to educational and vocational information and guidance; the right to seek, receive, and impart information and ideas; the right to rest and leisure and to participate freely in cultural life; the right not to be separated from parents against their will; and the right to protection against all forms of exploitation affecting any aspect of the child's welfare.
In 1990, the African Charter on the Rights and the Welfare of the Child (1990) came into force.
Article 21 of the African Charter on the Rights and the Welfare of the Child (1990) is significant enough to repeat here:
“Article 21 Protection against Harmful Social and Cultural Practices
1. States Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth, and development of the child, and, in particular:
(a) Those customs and practices prejudicial to the health or life of the child; and
(b) Those customs and practices discriminatory to the child on the grounds of sex or other status.
2. Child marriage and the betrothal of girls and boys shall be prohibited, and, effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory.”
In clear and un-ambiguous language, Article 21 of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) imposed on States Parties, including Zimbabwe, an obligation which they voluntarily undertook, to take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth, and development of the child.
The African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) goes on to specifically target child marriage as such a harmful social and cultural practice affecting the welfare, dignity, normal growth, and development of the child - particularly the girl child.
The States Parties are placed under a positive obligation to take effective measures, including legislation, to specify the age of eighteen years as the minimum age for marriage.
They are obliged to abolish child marriage.
Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) avoided the omissions and exceptions that the other conventions on human rights, relating to marriage, had permitted States Parties to exploit through local laws that authorized child marriage.
Commenting on the provisions of Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC), ELIZABETH WARNER, in the article “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004)…, had this to say…,:
“This is the most explicit provision of any of the international treaties discussed herein. It unequivocally sets the minimum age of marriage at eighteen and brooks no exception for local, religious, or other cultural practices, nor does it allow for exceptions based upon the consent of a local authority or the parents or guardians of the children concerned.
An Oxfam report optimistically states, that, this law is a reflection of changes in attitudes toward child marriages in recent years. The only drawback to this convention is that there are not more States that are parties to it. Again, one longs for the ability to insert this provision into the Convention on the Rights of the Child (CRC) and the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriages Convention) where it so clearly belongs.”
The provisions of Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) had a direct effect on the views on the validity of sections 20 and 22 of the Marriage Act.
A review of States reports presented to the Convention on the Rights of the Child (CRC) Committee from 1997 to 2004 reveals, that, forty-four States specified a lower age for girls to marry than boys.
In its concluding comments, E/1996/22 (1995)…, the Committee on the International Convention on Economic Social and Cultural Rights (ICESCR Committee) indicated that differences in marriageable age between girls and boys violated provisions of international human rights instruments guaranteeing to girls and boys equal treatment before the law.
In its concluding comment on Zimbabwe, A/53/40 (1998)…, the Committee on the Convention on Civil and Political Rights (ICCPR Committee) expressed the view, based on the interpretation of section 22(1) of the Marriage Act, that, early marriage, and the statutory difference in the minimum age of girls and boys for marriage, should be prohibited by law.
The Government of Zimbabwe was asked to adopt measures to prevent and eliminate prevailing social and cultural practices harmful to the welfare of children.
The comment by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee in General Recommendation 21…, was to the effect, that, provisions such as those of section 22(1) of the Marriage Act, which provided for different ages for marriage for girls and boys, assumed, incorrectly, that girls have a different rate of intellectual development from boys or that their stage of physical and intellectual development at marriage was immaterial.
The Committee recommended that these provisions be abolished.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee, in making the comment in General Recommendation 21…, proceeded on the basis, that, it was common cause that the coming into effect of Article 1 of the Convention on the Rights of the Child (CRC) and Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) rendered provisions such as those contained in section 22(1) of the Marriage Act, and any other law authorizing marriage of a person aged below eighteen years, inconsistent with the obligations of Zimbabwe under international human rights law to protect children against early marriage.
The view held was that the abolition of the impugned statutory provisions would be consistent with the fulfilment by Zimbabwe of the obligations it undertook in terms of the relevant conventions and the Charter.
The question was when the abolition would take place.
The adoption of legislative measures for the abolition of the offending statutory provisions, such as section 22(1) of the Marriage Act, became a compelling social need....,.
Section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution) was enacted for the purpose of complying with the obligations Zimbabwe had undertaken under Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) to specify, by legislation, eighteen years as the minimum age for marriage and abolish child marriage.
Under Article 18 of the Vienna Convention on the Law of Treaties, which came into force on 2 January 1980, a State Party is enjoined to hold in good faith and observe the rights and obligations in a treaty to which it is a party.
Zimbabwe had to see through its obligations under the conventions to which it is a party, requiring it to specify eighteen years to be the minimum age of marriage and to abolish child marriage. As the obligations were specific in terms of what the States Parties had to do, the compliance by Zimbabwe was also specific.
