Author: Christina Nyandoro
Christina Nyandoro is an LLM Student at the University of Cape Town, South Africa
Child marriage is a human rights violation often following from and leading to further human rights violations. It cannot be tackled in isolation as it is inextricable linked to other abuses that affect women and girls throughout their lives. In Mudzuru v Ministry of Justice[i], the Constitutional Court of Zimbabwe delivered a land mark ruling that outlawed all forms of child marriages. Through this decision which has been widely applauded, the Zimbabwean judiciary took an important step towards protecting the rights of children in Zimbabwe.
The minimum age of marriage in Zimbabwe is regulated by the Zimbabwe Marriage Act [Chapter 5:11] and the 2013 Constitution. According to s 22 of the Marriage Act, a girl or boy who attains the ages 16 or 18 respectively is capable of contracting a valid marriage. However, a boy or girl who falls under the minimum age may yet contract a valid marriage if given a written permission by the Ministry of Justice, Legal and Parliamentary affairs. When the new Constitution came into force on the 22nd of May 2013, the minimum age of marriage boy girls and boys became 18 years. The effect of s 78 (1) when read together with s 81(1) of the Constitution, is to deny a girl or boy under that age the capacity to contract a valid marriage.
The main issue for determination in the Mudzuru case was the applicable minimum age. Two women aged 19 and 18 years had approached the Constitutional Court in terms of s 85 (1) of the Constitution of Zimbabwe on the ground that subjecting children to early marriages was an infringement of their fundamental rights. The contended that by allowing marriage at the age of 16, the Marriage Act exposed the girl child to the horrific consequences associated with early child marriages.
Neither Applicants in this case were minors. Hence, the interesting question of their locus arose. The traditional rule of standing gave a right to approach court for legal redress to a person who suffered or would have suffered direct legal injury by reason of the infringement or threatened infringement of his or her fundamental right, freedom or interest by the action of the State or public authority. Neither Applicants in the case were minors, or had been subjected to child marriages. Hence, they would have been prevented by the traditional rule of standing unless they were representing persons who were unable to seek redress by themselves by reason of being under physical detention, which was not the case here. To resolve the question of locus, the court looked into the underlying purpose of s 85(1) of the Constitution, which enshrines the right to approach a court for appropriate relief for an alleged infringement of a fundamental human right or freedom enshrined in the Constitution, and found that the purpose was to ensure protection from human rights infringement that could adversely affect diverse interests in society.
The Court’s approach was without question a broad and purposive interpretation of s 85’s guarantee of the fundamental right of access to justice. The Court gave s 85 (1) (d) the broadest possible interpretation to locus standi, rooting same in a liberal, elastic or even relative construction of public interest. Public interest in the Court’s view, embraces standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The test then turned on whether the alleged infringement had the effect of prejudicially or potentially affecting the community at large or a significant section or segment of the community. The Court also considered cases of marginalised or underprivileged persons in society - apparently situating girl children within the category - and described them as persons in socially and economically disadvantaged positions who, being unable to approach a court, necessarily require all the assistance they can get in order to vindicate their rights. The law recognized the interest of such vulnerable persons as constituting the public interest, and that a public interest action will usually involve foregoing personal benefit to achieve social justice.
Thus, locus standi was construed in the context of the fundamental principle underpinning the new Constitution, which seeks to ensure that “every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection” by the State. The technicality in a rigid application of locus standi, could not be allowed to deny the applicants protection by the court. The fundamental right to access to justice overrides technicalities of law. To quote from the judgment, the Court had to “eschew over reliance on procedural technicalities, to afford full protection to the fundamental human rights and freedoms enshrined in Chapter 4”. This principle required that everyone has unlimited access to the court.
Having resolved the question of locus in favour of the Applicants, the Court then turned to the main issue for determination, and held that any law, custom or practice which allows marriage involving parties below the age of 18 years, contrary to the Constitution of Zimbabwe, was unconstitutional and invalid. It was no doubt an inevitable outcome, as the provision of the Marriage Act in question contradicted the Constitution. However, the Court should be applauded for the industry it employed to reach that outcome. It had recourse to international conventions, reviewing their influence on domestic law in Zimbabwe. They found leeway for such recourse in s 46(1) (c) of the new Constitution, which requires courts to take international law into account when interpreting domestic law. Hence, the Court referred to Article 16 (2) of the Convention on the Elimination of all Forms of Discrimination against Women, noting its requirement that only women and men of full age could marry. It also referred to the wider and more comprehensive protections for children under the Convention on the Rights of the Child, and noted that child marriages infringe on a number of other child rights such as the right to education, the right to be protected from all forms of violence, the right to be protected from sexual exploitation, etc. Notably, the Court also referred to provisions of the African Charter on the rights and Welfare of the Child, which guarantee protection from harmful social and cultural practices, including child marriage (Article 21 (2)).
In essence, s 22 of the Marriage Act failed the constitutional test, and the Constitutional Court arrived at this conclusion through purposive judicial reasoning that expunged traditional strictures around the application of locus and wove international human rights standards into how human rights provisions in the Constitution. These are interesting developments that enrich Zimbabwe’s access to justice and child rights jurisprudence. To quote a few lines from Chief Justice of Zimbabwe in Mawarire v Mugabe No and others CCZ1/2013, the court should not limit access to court to 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 is an empowering endorsement of public interest litigation in protection of rights of vulnerable members of the society, such as the girl child and women. .
Constitution of the Republic of Zimbabwe Amendment (No .20) 2013
Marriage Act (Chapter 5:11)
[i] Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others  ZWCC 12.