Gisela Sin Gomiz 1/17/23 Gisela Sin Gomiz 1/17/23

Child and Adolescence Court of Zacapa, No. 19003-2011-0637-Of.3ª (Mayra Amador Raymundo) and four ors. - Guatemala

Background

Following a fall in the price of coffee, which triggered an economic crisis, 88.88% of residents of the Camotan municipality fell below the poverty line with 38.20% of residents living in extreme poverty.

In 2009, a group of 14 CSOs from Guatemala advocated for the creation of an international fact-finding task force (“Mission”) with the objectives of, first, verifying possible cases of violations of the right to food and other related human rights in Guatemala, and second, drawing the attention of the competent authorities, the media, the international community and regional and international human rights bodies and agencies. The Mission, which was composed of a range of international human rights organisations, found evidence of chronic malnutrition of children, lack of food, lack of work, lack of access to land and lack of basic services (water, housing and sanitation).

This situation prompted Asociación Nuevo Día, a CSO under the umbrella of the Campaign Guatemala sin Hambre (a coalition of NGOs), to survey the children living in the municipality. The aim of the survey was to identify possible legal claims to create a national legal precedent for the protection of the human rights of children.

With the support of Guatemala Sin Hambre, the parents of five children, Dina Marilú, Mavèlita Lucila Interiano Amador, René Espino Ramírez, Mayra Amador Raymundo, and Leonel Amador García, filed claims against the State, on behalf of their children. They argued that there were violations of the rights to food, to life, to health, to education, to housing and to work by the state under national and international law.

The legal viability of each of the cases was carefully assessed. The main challenge was to demonstrate that the State was responsible for the deteriorating health of the children, and not the parents. This was necessary so as to avoid the Attorney General's Office (PGN) deciding to remove the children from the care of their parents and placing them in alternative care.

Reasoning

The Court first recalled the constitutional obligation (articles 1, 2, 47 and 51) of the State to protect the individual and the family and to protect the physical, mental and moral health of children, guaranteeing their right to food, health, education, security and social security, among others. It also referred to the best interests of the child as a primary consideration when taking measures in relation to children (CRC, art. 3 and Law on the Protection of Children and Adolescents, art. 5), to children’s right to express their views (Law on the Protection of Children and Adolescents, art. 116), the right of the child to an adequate standard of living for the child's physical, mental, spiritual and social development (CRC, art. 9) and the right to special care and assistance for all children (arts. 25(1) and 25(2) of the Universal Declaration of Human Rights). The Court also noted that the Law on the Protection of Children and Adolescents (arts. 5, 18, 19, 53, 54 and 112) obliges the state to "adopt appropriate legislative, administrative, social and educational measures to protect children against all forms of neglect or negligent treatment".

The Court stated that the right to food, recognised in a number of international law treaties ratified by Guatemala, should be interpreted broadly, in accordance with the definition provided by the UN Committee on Economic Social and Cultural Rights in its General Comment No. 12, as the "right to have regular, permanent and free access, either directly or through direct purchase, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the population to which the consumer belongs, and which ensures a physical and mental, individual and collective, free of distress, satisfying and dignified life". Therefore, the Court reasoned that there are three levels of State obligation related to the right to food and nutrition, those being to (i) respect (refrain from adopting measures that will prevent or impede access to food and nutrition); (ii) protect (adopt measures to prevent private companies or individuals from impeding access to food and nutrition); and realise (initiate activities with the aim of strengthening access to food and nutrition, where the State is responsible to guarantee access when the individual is not able to do so themselves and in a way that does not interfere with the enjoyment of other human rights contained in domestic and international legal instruments).

As such, and due to the serious effects that the state failings at issue had on the physical and psychological development of the children (see, “Peritajes” in all four cases) as well as the principle of the best interests of the child, the Court found that the State had violated the right to food (Law on the National System of Nutritional Security, arts. 28, 29, 30, 31 and 32; Constitution, arts. 55 and 99; and ICESCR, art. 11), the right to life (Constitution, art. 3), the right to an adequate standard of living (CRC, art. 27 and Law on the Protection of Children and Adolescents, art. 4), the right to health (Constitution, arts. 51, 93 and 94) and the right to housing (Housing Law, arts. 6, 30 and 32, and ICESCR, art. 11) by omission, meaning that it had failed in its obligation to realise said rights.

Remedy

The Court made orders directing a range of measures to be implemented by specific state entities (Ministry of Agriculture, Livestock and Food, Ministry of Communications and Infrastructure, Ministry of Public Health and Social Assistance and Municipal Mayor, among others), including providing regular access to food, drinking water and medical treatment to the five plaintiff children as well as providing the families with the land and farming equipment for harvesting.

Additionally, the Court ordered the State to implement a protocol (“Protocolo para el ejercicio del derecho humano a la alimentación”) to prevent future violations of this nature, involving multiple ministries, and specified the minimum content that Protocol should contain in terms of coordination, intervention and monitoring mechanisms and administrative timelines.

Role of children

The case was brought on behalf of five children by their parents with the support of Guatemala Sin Hambre, a group of 14 NGOs.

Enforcement and other outcomes

In December 2013, FIAN International and the Campaign Guatemala Sin Hambre conducted a monitoring visit on the implementation of the decisions. This revealed that the living conditions of the families had not substantially improved due to severe delays and shortcomings in state compliance with the measures ordered in the judgments.

The decisions issued by the Child and Adolescence Court of the Zacapa Department were upheld by the Guatemalan Constitutional Court on 1 October 2015, after the Ministry of Communications, Infrastructure, and Housing filed an appeal. The Constitutional Court ruled that the State must meet the requirements of the decisions by all means available to it.

According to a 2019 report resulting from the work promoted by the Task Force on Right to Food, the situation of the children had not changed significantly. The situation resulted in the death of one of the girls due to malnutrition in 2017 and the forced emigration of two of the children. In addition, measures were not adopted to address the condition of physical and cognitive disability of two of the children, which worsened as a result of chronic malnutrition. Furthermore, the lack of participation of the children and their families in the design, implementation, adjustment and follow-up of the measures resulted in a lack of adaptation to their needs, perceptions and proposals.

Significance of the case from a CRSL perspective

The role of civil society organisations in the CRSL is particularly noteworthy due to their involvement in the investigations prior to the filing of the CRSL claim, in the preparation and presentation of the claim, as well as in the follow-up and monitoring of compliance with the judgments. The group of 14 NGOs that supported and guided the children's parents to bring the cases before the Court deliberately sought to establish jurisprudence and judicial means for addressing children’s economic, social and cultural rights. They also sought to influence existing social policies and ensure that they had a child rights perspective.

These cases created legal precedent that furthers the enjoyment of children’s rights, including potentially in the context of CRSL. In the first instance, the fact that the State’s scope of liability has been widened both incentivises the State to enact policies that prevent further children’s rights violations and opens up the court system for future claims. In the second instance, it explicitly ordered the State to prevent future violations by enacting a plan requiring the collaboration of multiple State entities, which should benefit other children and contribute to advancing children’s rights in Guatemala.

Country

The Republic of Guatemala

Forum and date of decision

Child and Adolescence Court of the Zacapa Department

April 3, 2013 (Dina Marilú and Mavèlita Lucila Interiano Amador)

April 12, 2013 (Brayan René Espino Ramírez),

May 10, 2013 (Mayra Amador Raymundo)

May 31, 2013 (Leonel Amador García)

CRC provisions and other international law provisions/sources

Convention on the Rights of the Child, Articles 1-3, 5-6, 9, 12, 24, 27, 28, and 29
Universal Declaration of Human Rights, Articles 1-2, 7, 17, 19, 25(1), 25(2), 26, and 29
International Covenant on Civil and Political Rights, Articles 1-2, 5(2), 9, 11, 14(1), 23(1), and 24(1)
American Convention on Human Rights, Articles 1(1-2), 5(1), 17(1), and 19
International Covenant on Economic, Social and Cultural Rights, article 11
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant), 12 May 1999

Domestic law provisions

Political Constitution of Guatemala, Articles 1- 4, 46-47, 51, 71-72, 95, 101, 119 (d), 203-205, and 211
Law on the Protection of Children and Adolescents, Articles 1-5, 11, 15-20, 22, 49, 53-54, 56, 59-60, 75, 80, 101, 104, 108-112, 114, 116-117, 119-124, and 128
Law on the National System of Nutritional Security, Articles 1-4, 6-7, 10, 19, 20-22, 28 and 29
Municipal Code, Articles 1, 3, 5, 8, 35, and 53(d)
Health Code, Articles 1-2, 4, 7, 8, 9(a and d), 11, 18, 37-41, 43, 68, 70, 72, 74, 78-79, 87, and 90- 95
Housing Law, Articles 2, 4-7, 32, 35, 43, and 73- 77
Land Trust Fund Law, Articles 2, 4, 8, 13, and 20-21.

Related information

The applicants:

The parents on behalf of the children (5) Dina Marilú, Mavèlita Lucila Interiano Amador, René Espino Ramírez, Mayra Amador Raymundo, and Leonel Amador García.

In support of the applicants:

Campaign Guatemala sin Hambre (coalition of NGOs)

2a calle 4-50, Zona 2 Ciudad de Guatemala, Guatemala

The respondents:

State of Guatemala

Amicus curiae:

International Commission of Jurists (ICJ)

Rue des Buis 3
P.O. Box 1740
1211 Geneva 1, Switzerland

Case documents

The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-0637-Of.3ª (Decision for Mayra Amador Raymundo)
The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-00638-Of. 1ª (Decision for Dina Marilú y Mavèlita Lucila Interiano Amador)
The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-0639-Of.3ª (Decision for Brayan René Espino Ramírez)
The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-0641-Of.3a (Decision for Leonel Amador García)
Ruling by the Guatemalan Constitutional Court, file No. 4474-2014
Amicus Curiae – International Commission of Jurists (ICJ)

Secondary documents

Agudo A, 'Guatemala: El Hambre Que Cien Años Dura' El País (2019), accessed 19 May 2022

Baires Quezada R, 'Cinco Niños Olvidados Ganan Juicio Al Estado' Plaza Pública (2013), accessed 16 May 2022

Central de Organizaciones Indígenas Campesinas Ch'ortí Nuevo Día, Guatemala Sin Hambre and Procurador de los Derechos Humanos, 'Informe Sobre El Cumplimiento De Las Sentencias De Camotán. "Sin Horizontes De Desarrollo Humano"' (2019), accessed 19 May 2022

Comisión Interamericana de Derechos Humanos (CIDH), 'Situación De Derechos Humanos En Guatemala' (2017), accessed 16 May 2022

FIAN Internacional et al., 'El Derecho A La Alimentación En Guatemala. Informe Final Misión Internacional De Verificación' (Magna Terra editores 2022), accessed 19 May 2022

FIAN International, 'FIAN International’s Submission On Children’S Right To Food And Nutrition To The Committee On The Rights Of The Child Day Of General Discussion: “Children’S Rights And The Environment”' (2016), accessed 17 May 2022

'Guatemala Condenado Por Violaciones Al Derecho A La Alimentación' (International Commission of Jurists, 2013), accessed 16 May 2022

'Judge Declares State Of Guatemala Responsible For Right To Food Violations' (Fian.org, 2013), accessed 19 May 2022

- Mogollón V, Cano M, and Wolpold-Bosien M, 'El Derecho a La Alimentación – Acciones Y Omisiones Del Estado. Informe Del Monitoreo De Las Sentencias En El Caso De Desnutrición Infantil En Camotán, Guatemala' (Fian Internacional and Campaña Guatemala sin Hambre 2014), accessed 17 May 2022

Radio Urbana, 'Magali Cano Sobre La Campaña Guatemala Sin Hambre' (2016), accessed 17 May 2022

Billy Quarterman 1/20/16 Billy Quarterman 1/20/16

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

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)