Constitutional Court ruling on under 18 marriages: A step in the right direction, BUT

Constitutional Court ruling on under 18 marriages: A step in the right direction, BUT
Published: 21 January 2016 (915 Views)
On Wednesday 20 January 2016, the Constitutional Court of Zimbabwe once again made a landmark ruling, this time not on labour issues but on outlawing marriages of under 18 whether boys or girls. This is a step in the right direction. This is commendable. Prominent lawyer and human rights defender Tendai Biti successfully challenged Section 22 of the Marriage Act of the old constitution that recognises 16 years as the legal age of consent. His argument was that the section violates Section 78 of the new supreme law. Biti was representing two girls, Loveness Mudzuru and Ruvimbo Tsopodzwa both of whom were married before the age of 18.

Background
The Constitutional Court ruling comes at the backdrop of the First African Girl's Summit on Ending Child Marriage in Africa which was hosted by Zambia from 26 to 27 November 2015. The summit had the following outcomes:
 - Enhanced continental awareness on the consequences of child marriage;
 - Accelerate need to end child marriage in Africa

At the summit the Zambian President Edgar Lungu said, " I want to make sure my government has developed a strategy to end child marriage which will be launched soon, it's aimed at ending the vice, I'm not interested in curbing the vice but in eliminating it".

I like the level of commitment coupled with action oriented approach. This is the way to go if Africa is to develop in all facets be it economic, human, political and even social development. This is actually the missing link in most countries in the world. Many leaders are committed but they lack the zeal and will to operationalise the commitment. Commitment alone will never yield results. There is need for action oriented approach supported with resources. The extent of the problem in Africa is alarming and boggles the mind. Really something has to be done. We have a tall task to liberate our daughters from the child marriage scourge. It is a cancer that must be fought using all types of weapons. Child marriages is a threat to development. Any threat to development is also a threat to national and human security.  We have all the reasons to celebrate the landmark ruling and to do more to consolidate the gains achieved so far.

Significance of the land mark ruling

Therefore, the ruling is significant in many areas. While the immediate benefits are the liberation of the girl child and women emancipation, it also comes with great benefits to the whole country, continent and world at large. Child marriage affects the whole spectrum of issues and the girl child development leaving the girl child discriminated and stigmatised with little or no hope of the future. The following are the reasons why child marriages must be outlawed:

1. Child marriage is a blatant human rights violation that robs girls of their rights to health, to live in security, and to choose if, when and whom to marry. It is a harmful practice, which severely affects the rights of a child and further deprives the child from attaining other aspirations like education. It violates rights of the girl child and children in general as enshrined in the United Nations Conventions on the Right of the Child (UNCRC) as well as the African Charter on the Rights and Welfare of the Child (ACRWC) and the Constitution of Zimbabwe. It is callous in fact. There is no justification for it.

2. Child marriage denies the girl child their right to education which promotes academic, intellectual and cognitive development. Failure to be educated also affect the girl child's ability to contribute to their personal development, family and society at large. It must be noted that there is a correlation between a mother's education to her child rearing and wellbeing.

3. Child marriage has serious ramifications for the health of the girl child. According to World Health Organisation pregnancy and child birth complications is the number one cause of death among girls aged between fifteen and nineteen in developing countries. It is also argued that children are more susceptible than mature women to sexually transmitted infections (STIs), including HIV. This is as a result of biological factors such as hormonal imbalances and the thickness of vaginal tissue, and social factors such as low self confidence or self esteem that make it difficult for girls to negotiate safe sex. Girls also have lower access to sexual and reproductive health information and services than older women.

4. Child marriages can lead to intergenerational cycle of poverty. More often than not, many girls in child marriages lack skills, knowledge, and social competences to financially support their families. This exposes the family to serious vulnerability hence poverty becomes the order of the day. This is detrimental to the state for we also want the girl child to play its role in national development.

Challenges Ahead and the Way Forward
While it is greatly commendable that such a landmark ruling has been made, I must hasten to point out that we still have a mountain to climb. Such challenges are ingrained in our institutions that make up our society. From a legal point of view the battle has been won but from a social point of view, we still have challenges ahead.  We still need to be vigilant. The following are some of the challenges that we are likely to face:

1. Cultural and traditional practices
Child marriage is deeply rooted in gender inequality (gender based violence and gender discrimination), poverty, tradition and culture. The practice is most common in rural areas, where prospects for girls can be limited. In many cases, parents arrange these marriages and young girls have no choice. Consequently, some societies believe that early marriage will protect young girls from sexual attacks and violence and see it as a way to insure that, their daughters will not become pregnant out of wedlock and bring dishonour to the family. In effect, the paradox is that parents and society are often wrong. Therefore, there is need to fight this anachronistic views and assumptions if we are to celebrate the demise of child marriages within our midst.

2. Lack of knowledge of the current constitutional provisions.
More often than not, our people suffer because of lack of knowledge. While we have this landmark ruling, I wonder if people in Dotito, Tamandayi, Mugondi, Shekwa- Chipinge, Malipati, Binga etc are aware of such developments. I am still worried that even the new constitution, (Constitution of Zimbabwe Amendment (No. 20) ACT 2013) is still unknown in many corners of our country. What plans are there to deal with families that are still forcing their girl children to get married at a tender age? What monitoring mechanisms do we have in place to deal with and ensure that those that breach the law are brought to justice to face the full wrath of the law?

3. Lack of resources to raise awareness on such landmark ruling. Given the level of poverty bedevilling our society, there is lack of resources to conscientise our people on the provisions of the constitution. Again, there is need to prioritise this worthwhile cause to ensure that we nip the shoot in the bud wherever such scourge is still existent. To me, this is where we need serious collaboration between government and the development partners, non-governmental organisations and civil society so that we leave no stone unturned in our quest to ensure that our children and their future is protected and guaranteed. This must be our priority.

4. Complicit is likely to militate against such a landmark ruling in our society. Most of the girls that are getting married have consent of their parents. Given that, there is likely possibility of parents still conniving with paedophiles to arrange secret marriages for the girl child against her aspirations. We have religious cults that are still doing that. The arm of the law must reach out to such and bring them to book.

5. Need for education for the girl child

While we celebrate this landmark ruling, we must also be quick to say that there is need to educate the girl child that there is life before marriage. Some girls are not being forced to enter into early marriages but they have become so loose to an extent that they even force themselves upon men. I remember when I was reading the landmark ruling that one of my colleagues said, ''You think you have liberated the girl child yet you have actually suppressed her wishes?'' I wondered and had to ask why? He narrated how the girl child tries to entice men in our communities. So if we want to celebrate for sure, there is need to reach out to every corner of the country preaching the gospel of delayed marriages for the empowerment of the girl child for the betterment of our country and continent.

6. There is need to address the issue of sexual consent for girls
We have had debate on sexual consent in 2015. It is still unclear whether the court has banned early marriages while sexual consent for girls remain at the age of 16 years. Personally I feel that there is need to realign our laws so that they speak to each other. The age of sexual consent must be clarified because paedophiles will manipulate our girl child and live scot free. There is need for swift attendance to this issue so that we can fight the child marriage and exploitation scourge in totality.

Conclusion
The fight against child marriages is far from over. There are serious gaps to be plugged if our victory is to live forever. There is need for a multisectoral approach to this issue to ensure that all the loopholes are plugged. Let us empower the girl child, families and the whole nation on the need to protect the girl child. The girl child is our future and is a sacred specie. Well done Biti and company for the fight. You fought a good fight. You have played your part. Wonderful.
Johanne Mhlanga is a social worker and he writes in his capacity. He can be contacted on johannemhlanga82@gmail.com / 0776 308 483



- Johanne Mhlanga

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