Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14, CC 12-15) [2015] ZWCC 12 (20 January2016)CCZ 12/2015 - Zimbabwe

ZimbabweDomestic

Jan 20

Background

The two applicants in this case, two women aged eighteen and nineteen respectively, brought a claim to the Constitutional Court of Zimbabwe to declare the Marriage Act [Chapter 5:11], Section 22(1) and the Customary Marriages Act [Chapter 5:07] in contravention of Section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013. They claimed that this provision infringed on the fundamental right of underage girls.

It should be noted that the standing of the applicants was questioned by the respondents as, at the time of the claim, both were of age and had not entered into an official marriage union under the challenged legislation.

Court reasoning and findings

The applicants’ claim rasied four questions that for the Court to address, those being:

1) Do the applicants have standing?

2) Does Section 78(1) set the minimum age of marriage to eighteen years?

3) If Section 78(1) changes the minimum age of marriage, does it invalidate previous laws allowing for marriage unions under the age of eighteen?

4) If these laws are invalidated, what is the appropriate remedy?

For the first question, the Court acknowledged that the applicants’ rights were not directly affected by the laws in question. Regardless, the Court found that, under Section 85(1)(d) of the Constitution, the applicants were allowed to bring a claim as under “public interest”. The Court considered that, since children fall under the category of “weak and vulnerable people” in society and, thus, the applicants could bring an action to protected children’s fundamental rights without being directly affected by the infringement.

For the question of whether Section 78(1) set the minimum age of marriage at eighteen, the Court looked at the body of international law to interpret the section. The question here was whether there should be a literal interpretation of the text (“[e]very person who has attained the age of eighteen years has the right to found a family”), understanding that granting the right to “found a family” from the age of eighteen does not imply that the minimum age for marriage is eighteen. Here, the Court decided that it was evident that, given the body of international law as well as the harm suffered by young girls forced into marriage, Section 78(1) intended to set the minimum age of marriage to eighteen.

Court order or remedy

The Court declared that:

1) Section 78(1) of the Constitution of Zimbabwe sets the minimum age of marriage at eighteen years

2) Any law allowing for any person under the age of eighteen to marry is unconstitutional and is void

3) No person can marry under the age of eighteen.

Notably, the Court did not exercise its powers, under Section 175(6)(b) of the

Constitution, to retroactively declare unions entered into with girls under the age of eighteen void.

Role of children

In this case, the role of children was indirect. Meaning, the applicants that brought the claim were of age at the time, but were requesting the court to declare child marriages illegal. It should be noted the applicants of the case were subjected to an informal marriage union at the age of fifteen, but this did not give rise to a claim against the legislative framework as the union was informal.

Enforcement and other outcomes

The Court’s decision declared that the all legislation that allowed for a marriage union involving a minor was unconstitutional. This triggered a set of reforms, including changes to the Marriage Act and the Customary Marriages Act that increased the minimum age for marriages to eighteen, as well as a commitment by the Government to harmonize the relevant laws with the Constitution (see page 33 of In-Depth Review of Legal and Regulatory Frameworks on Child Marriage in Zimbabwe).

Significance of the case from a CRSL perspective

From the CRSL perspective, this case is relevant in three ways.

First, the Court’s decision has opened the door for human rights litigation to be brought by parties seeking to remedy a violation without being directly affected by it. In doing so, the Court has allowed for children’s rights – and the rights of other vulnerable members of society – to be addressed in court without them being brought by the subjects of the violation.

Second, the Court’s use of Zimbabwe’s international obligation – in particular the CRC and the ACRWC – is an important precedent for the harmonization of the international consensus on the right of children with the interpretation of the Constitution.

Third, by declaring that the Constitution sets the minimum age for marriage at eighteen, this decision has triggered legislative reform to address the problematic of child marriages. Additionally, this case has had an impact in the region, triggering similar litigation in Tanzania (see page 10 of Recent developments Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others: A review).

Country

Zimbabwe

Forum and date of decision

Constitutional Court of Zimbabwe, 20 January 2016

CRC provisions and other international law provisions

The Convention on the Rights of the Child (CRC), Articles 1, 2, 3, 24.3, 38,
The African Charter on the Rights and Welfare of the Child (ACRWC), Article 21
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Article 16
Universal Declaration of Human Rights (UDHR), Article 16
The Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages (the Marriage Convention)
The Vienna Convention on the Law of Treaties, Article 18

Domestic law provisions

The Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013, Sections 44, 78(1), 81(1), 85(1), 175(6)(b)