Two young women aged 19 and 18 years approached the Constitutional Court of Zimbabwe in terms of section 85(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013, seeking an interpretation of section 78(1) read with section 81 ((1) of the Constitution. They complained that the fundamental rights of the girl child were infringed by the Marriage Act and the Customary Marriages Act. Under section 22(1) of the Marriage Act, no girl under the age of 16 years and no boy under the age of 18 years shall contract a valid marriage without the consent of the Minister. The applicants complained that the provision violated the Constitution by setting the age of marriage for girls below the age permitted by the Constitution. They also complained that the Customary Marriages Act was unconstitutional because it did not provide for a minimum age of 18 for marriages contracted under customary law. The respondents countered that the applicants lacked locus to bring the action because they neither showed personal injury nor demonstrated in whose public interest they brought the action. On the merits, they argued that section 78(1) of the Constitution only recognized the right to found a family, and this did not mean a right to contract a marriage. Further, section 22(1) of the Marriage Act did not authorize a girl child who has attained the age of 16 years to marry in contravention of the Constitution.
The Issues for Determination, were amongst others,
- Whether the applicants had locus standi to institute action
- Whether section 78(1) of the Constitution sets the age of eighteen years as the minimum age for marriage in Zimbabwe
- If the answer to issue No. 2 is in the affirmative, whether the coming into force of sections 78(1) and 81(1) of the Constitution on 22 May 2013 rendered invalid s 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
Section 85 of the Constitution of Zimbabwe grounded the right of persons acting in their own interests, on behalf of others, or in the public interest, etc, the right to seek judicial redress for the violation or threat of violation of a right. The applicants alleged that a girl child’s rights to equal protection of the law and to not be subject to any form of marriage contrary to section 81(a) read with section 78(1) of the Constitution was being or was likely to be infringed if section 22(1) of the Marriage Act was not declared unconstitutional.
To claim capacity to institute the action, the applicants need only show that they can act in any one capacity under section 85 of the Constitution. The respondents successfully showed that the applicants had not demonstrated personal injury or where likely to suffer a violation of their own rights as required by section 85(1)(a) of the Constitution. However, if a person in a section 85(1)(a) context can show that he or she would be liable to conviction under an unconstitutional law even though the unconstitutional effects are not directed at him, per se, it would cloth him with locus and it would not matter whether he or she is a victim. The concept of ‘own interest’ used in section 85(1)(a) is broad enough to include indirect interests.
The contention that the applicant lacked locus under the public interest clause in section 85(1)(d) does not hold. Section 85(1)(d) of the Constitution must be understood in the context of its purpose and the objectives it is intended to achieve. Section 85(1) is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and enforcement of the constitutional obligation imposed on the State. The form and structure of s 85(1) shows that it is a product of the liberalization of the narrow traditional conception of locus standi. It compels a court exercising jurisdiction under section 85(1) to adopt a broad and generous approach on locus.
The primary purpose of section 85(1)(d) is to ensure effective protection to any public interest shown to have been or to be adversely affected by an infringement of a fundamental right or freedom. By definition, public interest is not private, personal or parochial interest. Public interest embraces standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The paramount test should be whether the alleged infringement of a fundamental right or freedom has the effect of prejudicially affecting or potentially affecting the community at large or a significant section or segment of the community. The test covers cases of marginalised or underprivileged persons in society who because of poverty, disability, socially and economically disadvantaged positions, are unable to approach a court to vindicate their rights. Section 85(1)(d) was introduced with the view of providing expansive access to justice to wider interests in society, particularly the vulnerable groups in society, the infringement of whose rights would have remained unredressed under the narrow traditional conception of standing.
What constitutes public interest will vary from case to case. It is not necessary for a person challenging the constitutional validity of legislation to show that the legislation has infringed, or is likely to infringe fundamental human rights, or to give the particulars of a person or persons who have suffered legal injury as a result of the alleged unconstitutionality. All that section 85(1)(d) requires is that a fundamental right has been or is likely to be infringed – in this case by a legislation. The person alleging the unconstitutionality need not provide the particulars of the right holder because the constitutional invalidity of the legislation takes place immediately the constitutional provision with which it is inconsistent comes into force. Also, the constitutional invalidity of legislation enacted after the constitutional provision has come into effect occurs immediately after the legislation is enacted. The constitutional validity of the legislation does not depend on when the fundamental right infringement occurs.
The applicants in this case had no personal or financial gain to derive from the proceedings. They were not acting mala fide or out of extraneous motives as would have been the case if they were mere meddlesome busybodies seeking a day in court and cheap personal publicity. The applicants were driven by the laudable motive of seeking to vindicate the rule of law and supremacy of the Constitution. It is a high principle of constitutional law that people should be in a position to obey laws which are consistent with constitutional provisions enshrining fundamental human rights and freedoms. They acted altruistically to protect public interest in the enforcement of the constitutional obligation on the State to protect the fundamental rights of girl children enshrined in s 81(1) as read with s 78(1) of the Constitution.
Children fall into the category of weak and vulnerable persons in society. They are persons who have no capacity to approach a court on their own seeking appropriate relief for the redress of legal injury they would have suffered. The reasons for their incapacity are disability arising from minority, poverty, and socially and economically disadvantaged positions. The law recognizes the interests of such vulnerable persons in society as constituting public interest. The proceedings instituted by the applicants and the relief sought were the only reasonable and effective means for enforcement of the fundamental rights of girl children subjected to early marriages.
The Constitution imposes an obligation on the court to take international law, treaties and conventions to which Zimbabwe was party into account when interpreting Chapter 4 of the Constitution (on fundamental rights). Section 78(1) cannot be interpreted outside the context of international obligations that Zimbabwe undertook. International instruments to which Zimbabwe is a party include the Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child (ACRWC) and the Convention on the Elimination of Discrimination against Women (CEDAW). Section 78(1) and 81(1) of the Constitution must be interpreted progressively in the spirit of these instruments.
The CRC sets the age of majority at 18 years. A person who falls below this age is a child and is entitled to the protection accorded children under the CRC, on a non-discriminatory basis. Article 3 of the Convention enjoins State Parties to give primary consideration to the best interest of the child in all actions concerning children and to undertake to ensure that the child has such protection and care as is necessary for his or her wellbeing. Although CRC did not specify 18 years as the minimum age of marriage, by defining “a child”, it provided the basis for the CEDAW Committee and CRC Committee to declare 18 years as the minimum age of marriage. According to Article 16(2) of CEDAW, the marriage of a child shall lack legal effect.
The ACRWC in Article 21 similarly prohibits child marriages and betrothals of girls and boys and enjoins State Parties – including Zimbabwe - to adopt effective measures including legislation which set the minimum age of marriage at 18 years. It is a specific obligation to abolish child marriages.
Following comments and requests by international committees to adopt measures that end cultural and social practices that were harmful to children and to girls in particular, and empirical studies that showed that child marriage and its horrendous consequences were evidence of failure by the State to discharge its obligations to the girl child under international human rights law, Zimbabwe adopted sections 78(1) and s 81(1) of the Constitution to provide greater and effective protection of the fundamental rights of the child. Section 78(1) complies with Zimbabwe’s obligation under Article 21(2) of the ACRWC to adopt legislation that specifies eighteen years as the minimum age for marriage and abolishes child marriage.
The court further held that only a broad, generous and purposive interpretation would give full effect to the right to found a family enshrined in section 78(1) of the Constitution. The preferred constitutional construction “is one which serves the interest of the Constitution and best carries its objects and promotes its purpose”. Section 78 guarantees to persons who have attained the age of eighteen years freedom to enter into marriage without compulsion and with free will. Section 26(a) which falls under Chapter 2 imposes an obligation on the State to take appropriate measures to ensure that no marriage is entered into without the free and full consent of the intending spouses. On account of section 78, a person who has not attained the age of eighteen has no legal capacity to marry. He or she has a fundamental right not to be subjected to any form of marriage regardless of its source. Section 78(1), read with section 81(1) of the Constitution means that the enjoyment of the right to enter into marriage and found a family is legally delayed in respect of a person who has not attained the age of eighteen years. The effect of the provisions is clear: a child cannot found a family. It is an absolute prohibition in line with the provisions of Article 21(2) of the ACRWC. The prohibition affects any kind of marriage whether based on civil, customary or religious law. As a result, a child has acquired a right to be protected from any form of marriage.
On the principle of the supremacy of the Constitution, the invalidity of existing legislation inconsistent with a constitutional provision occurs at the time the constitutional provision comes into force and not at the time a fundamental right is said to be infringed or when an order of invalidity is pronounced by a court. A statute which is enacted when the Constitution is in existence becomes invalid the moment it is enacted if it is inconsistent with a constitutional provision.
Section 78(1) as read with section 81(1) of the Constitution sets forth the principle of equality in dignity and rights for girls and boys, effectively prohibiting discriminatory and unequal treatment on the ground of sex or gender. Consistent with Article 21(2) of the ACRWC, section 78(1) of the Constitution abolishes all types of child marriage and brooks no exception or dispensation as to age based on special circumstances of the child. Section 78(1) permits of no exception for religious, customary or cultural practices that permit child marriage; nor does it allow for exceptions based on the consent of a public official, or of the parents or guardian of the child. Read with section 81(1), section 78(1) has effectively reviewed local traditions and customs on marriage.
Section 78(1) of the Constitution is based on the principle that only free men and women of full age should marry. When men and women marry, they assume important responsibilities. They must have reached the legal age of maturity when they have the capacity to freely choose their partners and be able to give free and full consent to marriage. Section 78(1) provides, in effect, that a person aged below 18 years has not attained full maturity and lacks capacity to understand the meaning and responsibilities of marriage. No law can validly give a person in Zimbabwe who is aged below eighteen years the right to exercise the right to marry and found a family without contravening section 78(1) of the Constitution. To the extent that it provides that a girl who has attained the age of sixteen can marry, secyion 22(1) of the Marriage Act is inconsistent with the provisions of section 78(1) of the Constitution and therefore invalid.
In light of the overwhelming empirical evidence on the harmful effects of early marriage on girl children, no law which authorises such marriage can be said to do so to protect “the best interests of the child”. The best interests of the child would be served, in the circumstances, by legislation which repealed s 22(1) of the Marriage Act. By exposing girl children to the horrific consequences of early marriage in clear violation of their fundamental rights as children s 22(1) of the Marriage Act is contrary to public interest in the welfare of children. Failure by the State to take such legislative measures to protect the rights of the girl child when it was under a duty to act, denied the girl children subjected to child marriages the right to equal protection of the law.