Child marriage not criminal yet: Biti

lawyer Tendai Biti yesterday urged the government to expedite the harmonisation of child rights and marriage laws in order to protect children from early marriages.


Biti, who represented two women, former victims of early marriages in a successful Constitutional Court (ConCourt) application to have the practice outlawed, told journalists at a Press briefing in Harare that it was now up to the legislature and Executive to hasten their work in order to operationalise the judgment.

“It is now up to the legislature to harmonise the laws. The judgment does not make the action of marrying a child a criminal offence yet. It has to be codified.
Our society will need a holistic approach to the challenge that the bench has put at us,” he said.

“The ConCourt did it so brazenly that the ball is not in the government’s court. The ConCourt just made that which is not criminal into a criminal offence, but it would need an accompanying policy and law to operationalise it. It said to the government ‘you are not doing your job. We have done ours’.

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“We now have a dangerous gap that authorities will need to cover very quickly. These are dark areas to do with the obnoxious African Marriages Act as well as the Marriages Act. While from yesterday (Wednesday) marrying anyone below the age of 18 is illegal, there is no criminal sanction.”

Biti said the biggest driver of child marriages was poverty and deprivation.

“Poverty drives child marriages and for Zimbabwe, even with the prescription of beautiful laws, the practice could still go on. Government figures show that at least 79% of Zimbabweans live in extreme poverty, there is general breakdown of the social fabric, child marriages are inevitable and the country has become the continent’s divorce capital,” he said.

Biti said the contentious issue of “consent” also remained a “dark area”.

“The matter before the ConCourt was about defining what a child is, as well as the minimum age. The two women argued that a child cannot be married, neither can they bear the burden of taking care of a family. These lacunas will require Parliament to deal with as a matter of urgency,” he said.

“Consent at 16 is specific to rape, but there is no general age of consent as is widely believed.”

The ConCourt on Wednesday outlawed marriages with children under the age of 18, in the process declaring unconstitutional section 11(1) of the Marriage Act.

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