CHILD MARRIAGES IN A COUNTRY WHERE A DUAL LEGAL SYSTEM EXISTS : THE
CASE STUDY OF ZIMBABWE
JUSTICE FOR CHILDREN TRUST
Presentation by Edna Mapuranga
Introduction
This presentation is going to look at :• The definition of a child in Zimbabwe;
• What a dual legal system is;
• The kinds of marriages that exist in Zimbabwe;
• The laws that protect children.
• Gaps
• Recommendations
Dual Legal System
• What is the dual legal system?
A dual legal system is a system wherein
customary law and general law exist side by
side. General law (laws made by parliament
and decided cases).
• What is customary law?
Customary law are practices and customs.
Dual Legal System Cont.
• Most countries in Southern Africa have dual
legal systems for example South Africa.
Kind of marriages that exist in
Zimbabwe
• The general law marriage – one man one wife.
• The Customary law marriage – one man can have
more than one wife.
• The Unregistered Customary Law Unions governed by custom and practice of the
indigenous people of a particular community –
the majority of unions in Zimbabwe fall under the
this kind of marriage even religious sects. NB: The
majority of children find themselves in this type
of union.
National Framework - Which Laws deal
with child marriages
• The Marriage Act Chapter 5:11 – provides that the
minimum marriageable age for girls is sixteen (16) and
eighteen (18) for boys.
• The act allows the marriage of a minor provided that a
legal guardian consents. PS: social and economic
problems - guardians have found themselves marrying
off their children.
• The act prohibits children below the age of 16 in the
case of girls and 18 in the case of boys to contract a
valid marriage except with the written permission of
the Minister, which he may grant in any particular case
which he considers such marriage desirable.
Which laws cont.
• Customary Marriages Act – Chapter 5:07 – no
provision for minimum age for marriage.
• Religious and traditional groups take
advantage of this act to marry children.
Which laws.
• Criminal Law (Codification and Reform) Act
has provisions that prohibit sexual activity
with a young person under 16 and a minor
under 12.
Which laws cont.
• The Domestic Violence Act – defines violence to
include abuse derived from cultural or customary
practices that discriminate against or degrade
women such as child marriages. The Act does not
however have a define who this child is.
• PS: Since the enactment of the Domestic Violence
Act – the courts have been using this Act to
criminalise perpetrators who marry children.
Which laws cont.
• The Zimbabwean Constitution – there is
protection from discrimination.
Regional & International Instruments
• The Zimbabwean Government has signed and
ratified regional and international instruments
which set the best practices in terms of child
protection.
Do these laws offer any protection
• Good laws and policies but these laws on their
own are contradictory for example general law
provide a minimum age for marriage whilst
customary law does not; The Domestic
Violence Act does not define child marriage
though it criminalises child marriages.
• The Constitution prohibits discrimination but
not in issues of culture as it recognises the
application customary law.
Protection Cont.
• Protection given by one piece of legislation
can be taken away by another piece of
legislation. This is complicated by the fact that
some judicial officers do not have some pieces
of legislation eg the Domestic Violence Act. In
dealing with the issue of child marriages, the
courts can choose which law to use.
Protection cont.
• There is no clear definition of a child in
Zimbabwe and this creates disparities in
interpretation.
• Though the Constitution has a clause on non
discrimination, protection against child
marriage is extended to boys in the Marriage
Act – Section 22
• Offenders in relation to the Criminal Law Code
find escape routes by marrying the children.
What are we doing and what we can
consider
• CSOs should strengthen collaboration
and seek accountability. For example,
Zimbabwe has Justice Alfas Chitakunye member of the African Committee of
Experts on the Rights and Welfare of the
Child yet the country has been lagging
behind on the submission of reports.
What we can consider
• There is need to harmonize the different
pieces of legislature that offer protection to
children and come up with a comprehensive
Children’s Act. Countries such Swaziland can
equally step up their advocacy efforts.
• Take advantage of forums like these to
highlight and share issues like this.
• Evidence based programming.
What we can consider
• Continuous legal education targeting judicial
officers.
• In Zimbabwe, the proposed New Constitution
brings an opportunity for child rights
organisations to reach out to the citizens with
information as regards the sections that
provides for children’s rights and gender
equality so that they can make informed
choices when voting.
What we can consider
• Involvement of children
• Advocate for the harmonisation of treaties to
be in line with national laws.
Wondering……
Should tradition not evolve and do away with
aspects that are harmful to children and the
girl child in particular? Can a girl realise her
full potential as a human being if she can be
encouraged to start a family at 16?
Conclusion : THE BIG ISSUE
• Desmond Tutu had this to say in Johannesburg
when addressing a meeting on Girls not
Brides:“This is an issue, I liken to apartheid in South
Africa, that I would want to bring to it the
same passion, the same commitment that I
had in our struggle against apartheid” Source Zimbabwe Herald - 7th of November 2012
THANK YOU
THANK YOU