by Cecilia Lipp, IANGEL Executive Director

Zimbabwe’s Constitutional Court advanced the realization of human rights on January 20th, 2016 with its groundbreaking, unanimous decision in the case of Mudzuru v. Ministry of Justice, which struck down Section 22 (1) of the Marriages Act (Chapter 5:11) that had allowed girls of 16 years to marry, as unconstitutional.  Two former child brides have moved the women’s agenda in Zimbabwe forward, as their case has brought Zimbabwe’s highest court to rule that marriage before the age of 18 is illegal for boys and girls alike.  Loveness Mudzuru and Ruvimbo Tsopodzi were 16 and 15, respectively, when they were married. Their affidavits recount their experiences, narratives which depict all too vividly the cycle of child marriage, poverty and domestic violence.  

IANGEL commends the dozens of organizations in Zimbabwe that have worked tirelessly to shift the tides, including Zimbabwe Women Lawyers Association and Zimbabwe Lawyers for Human Rights, and have thus created a sociopolitical climate where this historic decision is not only warranted, but welcome. IANGEL is honored to have been a part of this movement for the rights of girls in Zimbabwe. Our appreciation and deep respect is extended to IANGEL partner, the Research and Advocacy Unit based in Harare, Zimbabwe that has worked on this issue as a part of a consortium with over two dozen member organizations, and published a report on the Age of Consent in the SADC Region in August 2015. To all those who have demonstrated fearless commitment, deep integrity and unwavering determination in the years that have led to this sea-change moment, we say to you all, “You Are the Light!“

 

To dive a bit into the details of the decision, and hopefully to bring some clarity to the excitement that is overflowing from the staff, board and interns of IANGEL today, this decision carried within it several components that make it historic for the girl child, for women’s rights in Zimbabwe, and for human rights in its broadest sense.  

The decision in Mudzuru v Minister of Justice issued on January 20, 2016, the court made the following order:

1. The application succeeds. 2. It is declared that s 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013 sets eighteen years as the minimum age of marriage in Zimbabwe. 3. It is further declared that s 22(1) of the Marriage Act [Chapter 5:11] or any law, practice or custom authorising a person under eighteen years of age to marry or to be married is inconsistent with the provisions of s 78(1) of the Constitution and therefore invalid to the extent of the inconsistency. The law is hereby struck down. 4. With effect from 20 January 2016, no person, male or female, may enter into any marriage, including an unregistered customary law union or any other union including one arising out of religion or religious rite, before attaining the age of eighteen (18) years. 5. Each party shall bear its own costs.

The court grappled with whether or Loveness Mudzuru and Ruvimbo Tsopodzi had standing to bring the case before the court.  In its’ decision, the Court interprets §85(1)(d) of the Constitution in its broadest terms, where public interest is can be determined on the basis of “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 sufficient reasons such as poverty, disability, socially and economically disadvantaged positions, are unable to approach a court to vindicate their rights.”(Mudzuru v Minister of Justice, p17.) The court determines that §85(1)(d) “guarantees standing to a person who institutes judicial proceedings seeking to achieve the objectives for which the remedy of acting in the public interest was designed.” (Mudzuru v Minister of Justice, p19.).  This broad interpretation of §85(1)(d), and the in-depth legal analysis that accompanied it in this decision, will help ensure that human rights cases and protections of marginalized groups can more readily be brought to the Constitutional Court of Zimbabwe when they serve the “public interest”, which makes great strides in further securing the rights enshrined in the new 2013 constitution.  

The Constitutional challenge to the Marriage Act arose in light of the fact that, “(a)t the time Section 78(1) and 81(1) of the Constitution came into force, Section 22(1) of the Marriage Act [Chapter 5:11] provided that a girl who had attained the age of sixteen years was capable of contracting a valid marriage.” Since the new 2013 constitution defines a “child” as a person under the age of 18, the court struck down the Marriage Act, or any law, practice or custom that would allow a girl under the age of 18 to marry. 

Furthermore, the Marriage Act was inherently discriminatory in that it that placed the age of consent for girls at 16 and for boys at 18.  The inequality in this law had been previously documented in Zimbabwe’s own report to the UN Convention on the Elimination of all forms of Discrimination Against Women reports. For example, Zimbabwe’s 2009 report discusses the pitfalls of the Marriage Act, and even notes that there were proposed remedies under consideration at the time.  The adoption of the 2013 Constitution, with its gender equality framework that is well-aligned with international law, has afforded Zimbabwe the opportunity to turn the known challenges into successful legal reform, as was done by this historic decision in the Mudzuru case. 

IANGEL stands now, as always, in solidarity with our sister organizations and advocates in Zimbabwe.  We are delighted to see human rights realized in the 2013 Constitution reflected in the alignment of Zimbabwe’s laws with the new Constitution. And we remain honored and eager to work with our partners to connect the letter of the law to its practice, and to ever extend its reach to the most marginalized communities, so that every girl may benefit from the rights that are guaranteed her as a citizen of our world.  

Articles on this Case and Decision:

Resources on Child Marriage in Zimbabwe and in the SADC region:

Read more about IANGEL’s work for Zimbabwe.

An Historic Moment for Zimbabwe
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