Children’s rights and the rights of girls in particular took a major step forward in Tanzania this week: The Court of Appeal has delivered a judgment upholding a 2016 landmark high court decision holding that neither girls and boys may marry before 18. The appeal court also agreed that provisions to the contrary in the Law of Marriage Act were unconstitutional. It is a particularly important step for the courts as the number of child brides in Tanzania is among the highest in the world.
When the high court delivered its 2016 judgment finding that children could not marry before the age of 18, child and women’s rights’ activists rejoiced. Sections of Tanzania’s Law of Marriage Act that allowed girls to be married while still under age were declared unconstitutional, and the legislature was put on terms to change the law so that it conformed with the constitution.
But after that initial relief came anxiety as the government, through the Attorney General, filed an appeal and any changes to the law were put on hold.
That matter was argued in July and three judges of the Court of Appeal gave their decision earlier this week. It took the form of resounding support for the initial high court judgment, with all the grounds of appeal argued by the AG, dismissed.
In their 52-page decision, Justices Mary Levira, Winnie Korosso and Augustine Mwarija paid particular attention to several key issues that emerged from the initial application brought by Rebeca Gyumi, director of the Tanzanian child's rights NGO, Msichana Initiative.
Culture and tradition
Among these, they rejected argument that the younger age at girls could legally marry was justified by culture and tradition; they quoted and followed international law and treaties, as well as decisions from other jurisdictions on this and related issues, and they have now aligned Tanzania with a growing number of other African countries that pay close attention to the rights of women and children and outlaw child brides.
The appeal justices pointed out that the LMA was enacted in 1971 and served the purpose of that era. However, they said, ‘Tanzania is not an isolated island. It has … been indebted to legal jurisprudence from other jurisdictions, ratifying and domesticating international, regional and sub-regional instruments or enacting laws as a means of acknowledging the outcry of the international community and taking action against the violation of human rights which includes the right of a girl child.’
As Tanzania’s government had ratified and domesticated these international instruments, it had shown commitment to enforce them ‘and assure smooth realisation of human and peoples’ rights.’
Thus, the provisions challenged in the case had to be interpreted in the light of international law. The 2003 Protocol on the Rights of Women in Africa, stipulated that signatories were obliged to ensure national legislation guaranteeing the ‘minimum age of marriage for women shall be 18 years.’
The court also questioned the AG’s argument that ‘due to biological reasons, girls should be subjected to early marriages.’ Instead, the appeal judges agreed with the high court’s finding that, under the LMA, girls were exposed to serious matrimonial obligations and health risks such as domestic violence, psychological distress, teenage pregnancies and miscarriages.
A girl under 18 did not acquire adult status or the capacity to contract merely because of marriage, said the appeal judges. At the same time the international legal instruments ratified by Tanzania expressly provide that spouses should be ‘equal partners in marriage’. Yet this could not happen if a girl under 18 married someone of full contracting capacity: they could not be equal partners.
As to the question of cultural and religious rights for girls to marry, the appeal justices said they agreed with the high court: ‘It is our considered view that the argument that the two (LMA) provisions should be spared on account of values embedded in customary law and rules of Islamic law is invalid and cannot stand.’
The final decision was that the entire appeal lacked merit and the court dismissed it with no order as to costs.
That means the state has 12 months to change the LMA so that it conforms with the constitution and the decisions of the two courts. It is particularly important that the state keeps to the deadline because Tanzania has one of the highest rates of child brides in the world.
The original high court application was brought in the name of Rebeca Gyumi, a lawyer and the founder and director Msichana Initiative, a Tanzanian NGO focused on educating and empowering girls. Following the 2016 high court judgment, she won a UN Global Goals Award for her efforts to end child marriages in Tanzania. Commenting on the outcome of the appeal she said it was an important milestone in the fight.
She described the decision as affirming the regional and international human rights instruments that include Tanzania as a party. These instruments require the eradication of child marriage and that the principles of equality and informed consent in marriage are upheld.
Dismissal of the appeal was also welcomed by the Southern Africa Litigation Centre, whose programme director, Tambudzai Gonese-Manjonjo, expressed the hope that the state would move quickly to implement the decision by amending the LMA. She also urged that the amendment should provide for ‘consequences’ for anyone who facilitated child marriage.
Read a full analysis of the 2016 high court decision