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.
LOCUS STANDI
The right to approach a court directly seeking appropriate relief in cases arising from alleged infringement of a fundamental human right or freedom enshrined in Chapter 4 of the Constitution is given to the persons specified under section 85(1) of the Constitution.
Section 85(1) of the Constitution provides:
“85 Enforcement of fundamental human rights and freedoms
(1) Any of the following persons, namely –
(a) Any person acting in their own interests;
(b) Any person acting on behalf of another person who cannot act for themselves;
(c) Any person acting as a member, or in the interests of a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”
The applicants alleged, that, the fundamental rights of a girl child to equal treatment before the law and not to be subjected to any form of marriage enshrined in section 81(1) as read with section 78(1) of the Constitution have been, are being, and are likely to be infringed if an order declaring section 22(1) of the Marriage Act, and any other law authorising child marriage, unconstitutional was not granted by the Court.
What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made.
In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.
The respondents correctly submitted, that, although the applicants claimed to have been acting in their own interests, in terms of section 85(1)(a) of the Constitution, the facts showed that they had failed to satisfy the requirements of that rule.
The rule requires, that, the person claiming the right to approach the court must show on the facts, that, he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person.
In other words, the person must have a direct relationship with the cause of action.
The first part of the rule of standing under section 85(1)(a) of the Constitution needs no elaboration. Its content has constituted the meaning of the traditional and narrow rule of standing with which any common law lawyer is familiar. It is the rule which prompted CHIDYAUSIKU CJ to comment, in Mawarire v Mugabe NO and Others CC01-13…,:
“Certainly this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”
That is the familiar rule of locus standi based on the requirement of proof by the claimant of having been or of being a victim of infringement or threatened infringement of a fundamental right or freedom enshrined in Chapter 4 of the Constitution.
The second aspect of the rule is not so familiar. It needs elaboration.
The Canadian cases of R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 and Morgentaler Smoling and Scott v R (1988) 31 CRR 1 illustrate the point, that, a person would have standing under a provision similar to section 85(1)(a) of the Constitution to challenge unconstitutional law if he or she could be liable to conviction for an offence charged under the law even though the unconstitutional effects were not directed against him or her per se.
It would be sufficient for a person to show that he or she was directly affected by the unconstitutional legislation. If this was shown, it mattered not whether he or she was a victim.
In R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 a corporation was allowed to challenge the constitutionality of a statutory provision at a criminal trial on the grounds that it infringed the rights of human beings and was accordingly invalid.
The corporation had been charged in terms of a statute which prohibited trading on Sundays.
It did not have a right to religious freedom. The corporation was nevertheless permitted to raise the constitutionality of the statute which was held to be in breach of the Charter on the Rights and Freedoms (see Ferreira v Levin NO and Others 1996 (1) SA 984…,.). The corporation had a financial interest in the form of profits made out of trading on Sundays.
The concept used in section 85(1)(a) of the Constitution is “own interests” the broad meaning of which includes indirect interests such as commercial interests.
The corporation alleged, that, the statute was unconstitutional because it infringed the fundamental right to freedom of religion of non-Christians who did not observe Sunday as the day of rest and worship.
In getting the statute declared unconstitutional, the corporation's primary purpose was the protection of its own commercial interests and freedom from criminal prosecution for alleged breach of an invalid statutory provision.
A similar issue arose in Morgentaler Smoling and Scott v R (1988) 31 CRR 1: Male doctors who were prosecuted under anti-abortion provisions successfully challenged the constitutionality of the legislation in terms of which they were prosecuted.
The legislation directly infringed the rights of pregnant women who were the victims of the anti-abortion provisions.
The rights, the infringement of which formed the basis of the constitutional challenge, were of pregnant women. The rights did not and could not vest in the male doctors. If pregnant women were free to consult the doctors for purposes of abortion, the doctors would benefit financially from charging for services rendered in performing the abortions.
The doctors had their own financial and personal interests to protect in challenging the constitutionality of the anti-abortion legislation on the ground that it infringed the fundamental right of pregnant women to security of the person enshrined in section 7 of the Charter.
Counsel for the applicants conceded, that, the applicants were not victims of the alleged infringements of the fundamental rights of girl children involved in early marriages. They failed to show that any of their own interests were adversely affected by the alleged infringement of the rights of girl children subjected to early marriages. They could not identify any girl child or girl children the infringement of whose rights could be said to have directly and adversely affected their own interests.
Since the applicants were not victims of the infringements of the fundamental rights enshrined in section 81(1) of the Constitution, as they are not children, they could not benefit personally from a declaration of unconstitutionality of any legislation authorizing child marriage.
The contention by the respondents, that, the applicants lack standing under section 85(1)(d) of the Constitution is based on an erroneous view of the requirements of the rule.
The argument that the applicants were not entitled to approach the court to vindicate public interest in the well-being of children protected by the fundamental rights of the child enshrined in section 81(1) of the Constitution overlooked the fact, that, children are a vulnerable group in society whose interests constitute a category of public interest.
Notwithstanding the allusion to acting under section 85(1)(a) of the Constitution, the founding affidavit shows that the applicants believed themselves to be acting in terms of section 85(1)(d) and had their hearts in that rule....,.
Whilst its purpose is to ensure that a person who approaches a court in terms of the procedure prescribed under the rule has the protection of public interest as the objective to be accomplished by the litigation, section 85(1)(d) of the Constitution directs against the use of the procedure to protect private, personal, or parochial interests.
By definition, public interest is not private, personal or parochial interest.
