Read Zimbabwe constitutional court’s 2016 decision on marriage age

For many months international and regional organisations have warned about the dire consequences for child marriage of Covid-19, lockdowns and the economic stress they are all causing. But the story of 14-year-old Memory Machaya, who died in childbirth last month, is no less tragic for all those warnings. Her horrific death, and her burial just hours later by the apostolic church to which she and her family belong, have stirred up many people in Zimbabwe and beyond.

Her death and her ‘marriage’ might partly result from economic stressors related to Covid-19, since such ‘marriages’ inevitably go along with significant bride price. But there are others factors that are certainly to blame. The religious sect to which her family belongs is obviously culpable. So is the government of Zimbabwe, while the inaction of the police force has led to many jokes at their expense.

It could have been very different for Memory, and other nameless girls married off, like her, at 13 or younger, if only the Harare government had acted to outlaw child marriage, something it was obliged to do both in terms of Zimbabwe’s own highest court on constitutional matters, and in terms of the country’s obligations under international law and the Conventions to which it is party.


In January 2016, eight judges of the country’s highest court on constitutional matters ruled that the lawful age of marriage, for both boys and girls, was 18. In a decision that today shines like a star in Zimbabwe’s increasingly murky legal sky, the judges made it absolutely clear that the existing marriage law permitting girls to marry at 16 and that set differing minimum marriage ages for boys and girls, was unconstitutional.

No religious, cultural or other grounds could provide justification for child marriages, said the court. There could be no special clause allowing a guardian, a judge, a cultural or church leader to give permission for an under-age girl to marry; nor could there ever be an ‘exceptional case’: under the constitution there was ‘an absolute prohibition on child marriage’.


Re-read that decision today though, and it becomes clear that the state has a heavy responsibility to bear in relation to Memory and others like her whose names we shall never know.

When the matter was argued, the government’s legal team put up a very ‘spirited’ defence of the law found unconstitutional by the eight judges. They strongly argued that girls should be allowed to marry at 16 and that a different minimum age for marriage should be set for boys and girls because they came to physical and emotional maturity at differing times.

This defensive attitude was a warning signal to many that the state would drag its feet when it came to making the changes demanded by the constitutional court’s findings. And indeed, five years later, those changes have not yet been made. Though the laws on marriage are now unconstitutional in relation to the minimum age at which a girl may marry, they have not been updated and replaced. In effect, nothing has changed.


Why this reluctance to protect Zimbabwean girls? Many social media commentators put it down to the fact that the ruling Zanu-PF party wants the vote of traditionalists who practice child-marriage, estimated to number in their millions, making up the indigenous apostolic churches to which Memory’s family belonged. Banning child marriage risks alienating this vote, a risk that the party leadership won’t take.


The facts of Memory’s story have obviously touched many people deeply.

Human Rights Watch (HRW) called the tale ‘heart-wrenching’, while a statement by the office of UN Zimbabwe spoke of ‘deep concern’ about the circumstances of her death. HRW director, Southern Africa, Dewa Mavhinga, noted that Memory was forced out of school and into marriage aged just 13, something not uncommon in the widespread religious sect to which her family belongs, one that, according to HRW, ‘mixes Christian beliefs with traditional cultures’.

Indigenous apostolic churches with such beliefs have ‘millions of followers’ in Zimbabwe, according to Mavhinga, an estimate that makes the potential for church-sanctioned rape of under-age girls truly horrifying. Despite the constitutional court’s 2016 decision outlawing ‘child marriages’, the practice continues, says Mavhinga, and he quotes a member of an apostolic church as telling HRW, ‘As soon as a girl reaches puberty, any man in the church can claim her for his wife.’

The circumstances surrounding Memory’s illegal ‘marriage’, her subsequent death and her burial just hours later, have all caused concern. Police have said they are ‘investigating’, but while the identity of Memory’s family and her church-sanctioned rapist are known, there have been no arrests. To make matters worse, HRW quotes ‘distraught relatives’ of Memory as saying the church is planning to ‘give’ a nine-year-old girl as a ‘replacement’ to the man regarded by the church as Memory’s husband.


HRW commented that, like Memory, many Zimbabwean girls suffer abuse ‘because of the authorities’ inaction’. In a formal statement, UN Zimbabwe said that early forced marriages were a violation of the Convention on the rights of the child, to which Zimbabwe is a signatory, and urged that the Harare government fast-track a pending Marriage Bill ‘which recognises child marriage as a crime’.

Zimbabwe’s gender commission has called on government to ‘take leadership’ and declare ‘unambiguously’ that what are ‘sanitised’ as ‘child marriages’ amount in fact to child rape and will be punished by the full wrath of the law. The commission also wants the ‘law enforcement system’ to be held to account when its members ‘abdicate their duties’ and allow ‘paedophiles and their facilitators free reign’.

In its reaction, Lawyers for Human Rights says nothing about government inaction, but, addressing the ‘apostolic sect’ to which Memory’s family belongs, urges that it stop child marriages ‘as they expose young girls to sexual predators and [are] tantamount to rape and child abuse’.


On 6 August, the police issued a formal statement saying that it had ‘taken note of print and social media reports and inquiries on the alleged death of Memory Machaya (14) at a church shrine’ recently. The police were ‘now conducting investigations into the case’ and ‘more information will be released soon’. Since the media report that she died on July 15, and newspapers have been in touch with the police since then, many argue that the police response is far too late. International lawyer Thompson Chengeta of Oxford’s Bonavero Institute, for example, writes that since the relevant names, dates and place are all known, it appears that ‘what’s simply needed is an arrest’.

August is women’s month in SA, a time to highlight issues particularly affecting women and girls; it would be hard to find a more urgent target for action than child marriage. The SA government has recently published a paper on its updated, comprehensive marriage law proposals for comment, hoping to submit an official Bill to parliament by 2024. Among the issues it addresses is a strict minimum age for marriage, proposing the ‘complete removal of child marriages’ in the country’s planned new marriage regime.

But all that is in the future, and meanwhile, given the prevalence of child marriage in many parts of Southern Africa, it is just chance that Memory lived and died in Zimbabwe rather than South Africa.

* 'A matter of justice', Legalbriefs, 10 August 2021