News / National
LEAD party sues govt over child marriage laws
15 Sep 2021 at 05:24hrs | Views
THE leader of the opposition, Labour Economist Afrikan Democrats (LEAD) party Linda Tsungirirai Masarira and co applicants have taken the government to court in their quest to end child marriages.
They are seeking an order compelling the alignment of the Marriages Act Chapter 5:11, the Customary Marriages Act Chapter 5:07 and Section 70 of the Criminal Law (Codification and Reform) Act chapter 9:27 with section 78 (1) as read with section 81 (1) of the Constitution of Zimbabwe and section 15 of the General Law Amendment Act Chapter 8:07.
Masarira and co-applicants, Precious Musarurwa and Munyaradzi Midzi filed the application at the Constitutional Court in Harare on Wednesday citing Justice Minister Ziyambi Ziyambi, Home Affairs Minister Kazembe Kazembe, Women Affairs Minister Sithembiso Nyoni Attorney General, Johane Marange Apostolic Church and High Priest Noah Taguta as first to sixth respondents respectively.
They said their application was for direct access to the constitutional court on the matter of aligning laws in their quest to end child marriages, sex exploitation and abuse.
"Section 2 (1) of Amendment No.20 of the Constitution of Zimbabwe is promulgated on the tramping sense of the Constitution as the supreme law of the land," read their application.
"More so, in terms of section 78 (1) and (2), the Constitution provides for the legal age for marrying and that this must be done out of free will. The law states that every person who has attained the age of eighteen years has the right to found a family and that no person may be compelled to be married against their will."
They noted that it is not worthy that the Zimbabwean marriage laws …are inconsistent with the supreme law of the land as evidenced by section 20 (2) of the aforementioned Act which provides for the conditions for marrying minors.
"The Act provides that the marriage of a minor shall not be solemnized without the consent in writing of the persons who are, at the time of the proposed marriage, the legal guardians of such minor or, where a minor has only one legal guardian, without the consent in writing of such legal guardian: Provided that-i) if the consent of any legal guardian cannot be obtained by reason of absence or inaccessibility or by reason of his being under any disability, a judge of the High Court may grant consent to the marriage, and the consent of the judge so given shall have the same effect as if it had been given by the legal guardian whose consent cannot be obtained," read the application.
"If any legal guardian refuses his consent, a judge of the High Court may grant consent to the marriage, and the consent of the judge so given shall have the same effect as if it had been given by the legal guardian whose consent is refused."
Masarisa said Section 22 of the Act differentiate the age of marriage for girls as it states that (1) no boy under the age of eighteen years and no girl under the age of sixteen years shall be capable of contracting a valid marriage except with the written permission of the Minister, which he may grant in any particular case in which he considers such marriage desirable.
She said this is Provided that - (i) such permission shall not relieve the parties to the proposed marriage from the obligation to comply with all other requirements of this Act
"In essence, the marriage laws prior to the Marriages Act are inconsistent because it legalizes marriage of sixteen year old girl children as opposed to boys. Moreover, consent for the marriage is sought from another person other than the girl child hence, negating the freedom of will for a girl child to marry out of their will. In this respect, the aforementioned provisions of the Marriages Act [Chapter 5:11] must be repealed because they are invalid to the extent of their inconsistency," she submitted.
"Articulating further, the Customary Marriages Act [Chapter 5:07] prohibited pledging of girls and women in section 11… Therefore, marriage must be done out of free will. We pray for the alignment of laws to protect the girl child and for section 70 of the criminal law to be declared inconsistent and revoked."
The respondents are yet to file opposition to the application.
They are seeking an order compelling the alignment of the Marriages Act Chapter 5:11, the Customary Marriages Act Chapter 5:07 and Section 70 of the Criminal Law (Codification and Reform) Act chapter 9:27 with section 78 (1) as read with section 81 (1) of the Constitution of Zimbabwe and section 15 of the General Law Amendment Act Chapter 8:07.
Masarira and co-applicants, Precious Musarurwa and Munyaradzi Midzi filed the application at the Constitutional Court in Harare on Wednesday citing Justice Minister Ziyambi Ziyambi, Home Affairs Minister Kazembe Kazembe, Women Affairs Minister Sithembiso Nyoni Attorney General, Johane Marange Apostolic Church and High Priest Noah Taguta as first to sixth respondents respectively.
They said their application was for direct access to the constitutional court on the matter of aligning laws in their quest to end child marriages, sex exploitation and abuse.
"Section 2 (1) of Amendment No.20 of the Constitution of Zimbabwe is promulgated on the tramping sense of the Constitution as the supreme law of the land," read their application.
"More so, in terms of section 78 (1) and (2), the Constitution provides for the legal age for marrying and that this must be done out of free will. The law states that every person who has attained the age of eighteen years has the right to found a family and that no person may be compelled to be married against their will."
They noted that it is not worthy that the Zimbabwean marriage laws …are inconsistent with the supreme law of the land as evidenced by section 20 (2) of the aforementioned Act which provides for the conditions for marrying minors.
"The Act provides that the marriage of a minor shall not be solemnized without the consent in writing of the persons who are, at the time of the proposed marriage, the legal guardians of such minor or, where a minor has only one legal guardian, without the consent in writing of such legal guardian: Provided that-i) if the consent of any legal guardian cannot be obtained by reason of absence or inaccessibility or by reason of his being under any disability, a judge of the High Court may grant consent to the marriage, and the consent of the judge so given shall have the same effect as if it had been given by the legal guardian whose consent cannot be obtained," read the application.
"If any legal guardian refuses his consent, a judge of the High Court may grant consent to the marriage, and the consent of the judge so given shall have the same effect as if it had been given by the legal guardian whose consent is refused."
Masarisa said Section 22 of the Act differentiate the age of marriage for girls as it states that (1) no boy under the age of eighteen years and no girl under the age of sixteen years shall be capable of contracting a valid marriage except with the written permission of the Minister, which he may grant in any particular case in which he considers such marriage desirable.
She said this is Provided that - (i) such permission shall not relieve the parties to the proposed marriage from the obligation to comply with all other requirements of this Act
"In essence, the marriage laws prior to the Marriages Act are inconsistent because it legalizes marriage of sixteen year old girl children as opposed to boys. Moreover, consent for the marriage is sought from another person other than the girl child hence, negating the freedom of will for a girl child to marry out of their will. In this respect, the aforementioned provisions of the Marriages Act [Chapter 5:11] must be repealed because they are invalid to the extent of their inconsistency," she submitted.
"Articulating further, the Customary Marriages Act [Chapter 5:07] prohibited pledging of girls and women in section 11… Therefore, marriage must be done out of free will. We pray for the alignment of laws to protect the girl child and for section 70 of the criminal law to be declared inconsistent and revoked."
The respondents are yet to file opposition to the application.
Source - Byo24News
