There are growing calls for the Zimbabwean government to align existing laws on marriage to the new Constitution to protect the girl child.
By Phyllis Mbanje
Gender experts accuse the government of dragging its feet in repealing laws that perpetuate prevalent child marriages.
The current legislation does not provide protection against child marriages and its associated abuses, which the country is obliged to provide for under the Constitution and its international commitments.
“We have been waiting for a very long time, but as of now, nothing has materialised and yet everyone knows we have a problem of child marriages which affects the girl child more,” Harare West MP Jessie Majome, who also heads the legal parliamentary committee, said.
According to a 2012 survey by the United Nations Population Fund (UNFPA), the country’s prevalence of child marriages stood at 31% and Zimbabwe was among 41 nations with the highest rates of child marriages.
At the centre of the controversy are the Customary Marriages Act and the Marriage Act, both of which have not been aligned to the new Constitution.
The Customary Marriages Act, which has no specific minimum age, has seen many parents and guardians consenting to marriage of their children. It, therefore, seems to condone child marriages, with some girls getting married as young as 12 years old.
Some religious sects like the Johane Masowe have taken advantage of this Act and are marrying off young girls to older men, exposing them to sexual abuse and health complications, especially during child birth.
The current economic meltdown has not made things easier as parents are marrying off their daughters at a very young age for financial gain through payment of lobola.
Under the Marriage Act, girls under 16 can marry while the same Act says boys can only marry at 18. Girls between the ages of 16 and 18 can get married with the consent of their parents or guardians or, if a guardian refuses consent, with the consent of a High Court judge (Section 20).
This Act has been heavily criticised by child rights groups who feel it allows minors to marry. Zimbabwe signed international laws like the Convention on the Elimination of All Forms of Discrimination against Women, which seeks to promote and protect women.
Section 78 of the new Constitution, which talks about marriage rights, states that “every person who has attained the age of 18 years has the right to found a family”.
It does not distinguish between boys and girls.
“The Constitution is the supreme law and it clearly states that anyone below the age of 18 is a child, therefore, realignment creates unnecessary confusion and loopholes that put children at risk,” Real Open Opportunities for Transformation Support (ROOTS) director Beatrice Savadye, said.
Last year, the Zimbabwe Women Lawyers’ Association (ZWLA) said it was lobbying the government to amend the Marriage Act and the Customary Marriages Act to curb marriages of people below the age of 18 years.
ZWLA urged the government to abolish the provision in the Marriage Act that allows girls under the age of 16 to get married.
“The new Constitution recognises the fact that marriage is an important institution which should not be entered into by vulnerable children whose level of physical and emotional maturity demands parental care and protection, and should not be prematurely burdened with the rigours and responsibilities of marriage,” ZWLA said.
Early this year, ROOTS facilitated a ground-breaking case in which two former child brides took the government to the Constitutional Court (ConCourt) to get child marriages declared illegal and unconstitutional.
In their statements to the ConCourt, Ruvimbo Tsopodzi and Loveness Mudzuru, now 19 and 20 respectively, said Zimbabwe’s Marriage Act was discriminatory because it set the minimum age at 16 for girls and 18 for boys.
They said the law should be brought into line with Zimbabwe’s new Constitution as well as regional and international treaties banning child marriage.
“The government has a duty to realign laws to the Constitution, that is why the young women took the government to the ConCourt because it is taking too long to fulfil their duties,” Savadye said.
Speaker of Parliament Jacob Mudenda recently admitted that there was need to harmonise existing laws with the new Constitution, but said the government had no resources for such an exercise and was frantically trying to secure funds.
However, while it seems there is a lot of advocacy around the issue, what remains critical is that Zimbabwe, being a very traditional country, will not easily give up on customs and traditions.