M & ANOR v MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS NO & ORS

* Editor’s note – Please note that this judgment was to be published in ZLR 2015 (1) volume, but was not published due to an unavoidable reason. We regret any inconvenience caused.

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CONSTITUTIONAL COURT, HARARE

[Constitutional Application CCZ 12-15]

January 14, 2015

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GWAUNZA, GARWE,
GOWORA, HLATSHWAYO, PATEL AND GUVAVA JJCC

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 78 – Right to found a family – Whether includes right to marry – Whether there is a minimum age of marriage.

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 81 – Rights of children – Whether there is a prohibition against child marriage.

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Locus standi under section 85 (1) – The need for a broad and generous approach to locus standi.

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 46 – Principles of interpretation of provisions in the Bill of Rights – Obligation on a court to give a broad, generous and purposive interpretation – Additional need to take into account international law, all treaties and conventions to which Zimbabwe is a party.

The applicants were two young women aged 18 and 19 years respectively. They approached the Constitutional Court alleging the infringement of the fundamental rights of girl children subjected to early marriages under the Marriage Act [Chapter 5:11] and the Customary Marriages Act [Chapter 5:07]. Both pieces of legislation permitted a girl under the age of 18 to enter into marriage. The applicants, not being children themselves, approached the Constitutional Court on the basis of acting in the public interest under s 85 (1)(d) of the Constitution of Zimbabwe, 2013. They argued that permitting a girl child under the age of 18 years to marry was contrary to s 78 (1), as read with s 81 (1), of the Constitution.

Apart from opposing the application on the basis that ss 78 and 81 did not set a minimum age of marriage, the respondents also challenged the locus standi of the applicants.

Held, that s 78 (1) of the Constitution sets 18 years as the minimum age of marriage in Zimbabwe. This arises from the legal position that the right to found a family which is expressly granted by s 78 (1) to every person who has attained the age of 18 years, necessarily includes a right to marry.

Held, further, that when read with s 81 which provides for the rights of children, s 78 (1) prohibits a child from founding a family. Accordingly, a child cannot found a family and a marriage to which a person under the age of 18 years is a party is invalid.

Held, further, that s 22 (1) of the Marriage Act is inconsistent with the provisions of s 78 (1) of the Constitution and therefore invalid.

Held, further, that the applicants had locus standi under s 85 (1)(d) of the Constitution. Section 85 (1)(d) embodies a broad and generous approach to locus standi. Its primary purpose is to ensure effective protection to any public interest shown to have been or to be adversely affected by the infringement of a fundamental right or freedom. An applicant approaching the court under s 85 (1)(d) need not show an infringement to a particular person as long as he or she is able to satisfy the court that the application is genuinely in the public interest.

Held, further, that in the interpretation of provisions in the Bill of Rights (Chapter 4), a broad, generous and purposive interpretation gives full effect to the rights and freedoms enshrined thereof. This approach requires taking into account international law and all treaties and conventions to which Zimbabwe is a party.

Cases cited:

D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171; [1977] 1 All ER 589; [1977] 2 WLR 201; (1977) 76 LGR 5, dictum cited

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC), referred to

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC), referred to

Lion Laboratories Ltd v Evans [1985] QB 526; [1984] 2 All ER 417; [1984] 3 WLR 539; (1984) 3 IPR 276, referred to

Mawarire v Mugabe NO & Ors 2013 (1) ZLR 469 (CC), referred to

McKinnon v Secretary Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 41 AAR 23; 88 ALD 12; 63 ATR 409, referred to

Morgentaler Smoling and Scott v R [1988] 1 SCR 30; 63 OR (2d) 281; 37 CCC (3d) 449; (1988) 31 CRR 1; 62 CR (3d) 1; 26 OAC 1, referred to

Munna and Others v State of Uttar Pradesh and Others AIR 1982 SC 806; [1982] INSC 5; (1982) 1 SCC 545; 1982 1 SCALE 29; 1982 3 SCR 47, referred to

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; (1989) 89 ALR 71; 64 ALJR 86, referred to

R v Big M Drug Mart Ltd 1 SCR 295; (1985) 18 DLR (4th) 321; 3 WWR 481; 18 CCC (3d) 385; 37 Alta LR (2d) 97, referred to

R v Inhabitants of the County of Bedfordshire (1855) 24 LJQB 81, referred to

Rattigan & Ors v Chief Immigration Officer & Ors 1994 (2) ZLR 54 (S), referred to

Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473; (1975) 5 ALR 513; (1975) 49 ALJR 166; (1975) 34 LGRA 1, referred to

Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S), referred to

SP Gupta v Union of India and Others AIR 1982 SC 149; (1982) 2 SCR 365, referred to

Stanton v Stanton 421 US 7 (1975); 43 L Ed 2d 688; 95 SCt 1373,
referred to

State of Uttaranchal v Chaufal and Others AIR 2010 SC 2550; (2010) 3 SCC 402, referred to

Stevenson v Minister of Local Government & Ors 2001 (1) ZLR 321 (H), referred to

Towne v Eisner 245 US 418 (1918); 245 US 418; 62 L Ed 372; 38 SCt 158, referred to

Legislation considered:

Zimbabwe:

Child Abduction Act [Chapter 5:05], s 2

Children’s Protection and Adoption Act [Chapter 5:06], s 2

Constitution of Zimbabwe, 2013, ss 2 (1), 3, 25, 25 (a), 26 (a), 44, 46, 46 (1)(a), (c), 78, 78 (1), (2), (3), 81, 81 (1), (1)(a), 85 (1), (1)(a), (d), 175 (6)(b), Chapters 2, 4

Customary Marriages Act [Chapter 5:07]

Draft Constitution of Zimbabwe, 2000

Draft Constitutional Proposal 1 of Parliamentary Select Committee (COPAC) of 26 January, 2012, s 4.25, 4.35

Draft Constitutional Proposals of Parliamentary Select Committee (COPAC) of 18 July, 2012, s 27

Marriage Act [Chapter 5:11], ss 20 (1), 21 (1), 22 (1)

South Africa:

Constitution of the Republic of South Africa (No 108 of 1996), s 38 (d)

Interim Constitution of South Africa, s 7 (4)(b)(v)

International law instruments considered:

African Charter on the Rights and Welfare of the Child, CAB/LEG/24.9/49 (1990)

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, GA RES/17631 (XVII) (1964)

Convention on the Elimination of All Forms of Discrimination against Women, GA RES/34/180 (1979)

Division of Policy and Practice of UNICEF, “Child Marriage and the Law” (2007)

Inter-African Committee on Traditional Practices Affecting the Health of Children

International Covenant on Civil and Political Rights, A/53/40 (1998)

Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, GA RES/2018 (XX) (1965)

UNICEF, “Child Protection from Violence, Exploitation and Abuse Report” (2011)

United Nations Convention on the Rights of the Child, GA RES/44/25 (1989)

Universal Declaration of Human Rights, GA RES/217 [III] A (1948)

Vienna Convention on the Law of Treaties, United Nations “Treaty Series” Vol, 1155 (1969)

Books cited:

Mavedzenge A and Coltart DJ A Constitutional Law Guide towards Understanding Zimbabwe’s Fundamental Socio-Economic and Cultural Human Rights (Zimbabwe Human Rights Association, Harare, 2014)

Van Loggerenberg DE and Bertelsmann E Erasmus: Superior Court Practice (2nd edn, Juta & Co Ltd, Cape Town, 2015) pp A2-27

Articles cited:

Amoah Jewel “The World on Her Shoulders: The Rights of the Girl-Child in the Context of Culture & Identity” Essex Human Rights Review Vol 4 No 2 (2007)

Askari Ladan “The Convention on the Rights of the Child: The Necessity of Adding a Provision to Ban Child Marriages” 5 ILSA Journal of International & Comparative Law (1998) 123

Warner Elizabeth “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” American University Journal of Gender, Social Policy & the Law 2 (2004): 233-271

T Biti, for the applicants

O Zvedi, for the respondents

MALABA DCJ:

The two applicants are young women aged 19 and 18 years respectively. They have approached this Court in terms of s 85 (1) of the Constitution of Zimbabwe, 2013 (“the Constitution”) which came into force on
22 May 2013. They complain about the infringement of the fundamental rights of girl children subjected to early marriages and seek a declaratory order in the terms that:

“1. The effect of s 78 (1) of the Constitution is to set 18 years as the minimum age of marriage in Zimbabwe.

2. No person, male or female in Zimbabwe may enter into any marriage including an unregistered customary law union or any other union including one arising out of religion or a religious rite before attaining the age of 18.

3. Section 22 (1) of the Marriage Act [Chapter 5:11] is unconstitutional.

4. The Customary Marriages Act [Chapter 5:07] is unconstitutional in that it does not provide for a minimum age limit of 18 years in respect of any marriage contracted under the same.

5. The respondents pay costs of suit.”

The application arose out of the interpretation and application by the applicants, on legal advice, of s 78 (1) as read with s 81 (1) of the Constitution. Section 78 (1) of the Constitution is one of the provisions in Chapter 4 which enshrine fundamental human rights and freedoms. It provides:

“78 Marriage rights

(1) Every person who has attained the age of 18 years has the right to found a family.

(2) No person may be compelled to enter into marriage against their will.

(3) Persons of the same sex are prohibited from marrying each other.”

Section 81 (1) of the Constitution enshrines the fundamental rights of the child. The fundamental rights, the alleged infringement of which are relevant to the determination of the issues raised by the application, are:

“81 Rights of children

(1) Every child, that is to say every boy and girl under the age of 18 years, has the right—

(a) to equal treatment before the law, including the right to be heard;

(b) to be given a name and family name;

(c) in the case of a child who is—

(i) born in Zimbabwe; or

(ii) born outside Zimbabwe and is a Zimbabwean citizen by descent,

to the prompt provision of a birth certificate;

(d) to family or parental care or to appropriate care when removed from the family environment;

(e) to be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse;

(f) to education, health care services, nutrition and shelter;

(g) not to be recruited into a militia force or take part in armed conflict or hostilities;

(h) not to be compelled to take part in any political activity; and

(i) not to be detained except as a measure of last resort and, if detained—

(i) to be detained for the shortest appropriate period;

(ii) to be kept separately from detained persons over the age of 18 years; and

(iii) to be treated in a manner, and kept in conditions, that take account of the child’s age.

(2) A child’s best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.”

The protection of the fundamental rights of the child is guaranteed under s 44 of the Constitution. The provision imposes an obligation on the State and every person, including juristic persons, and every institution and agency of the government at every level to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4 of the Constitution.

The applicants contend that on a broad, generous and purposive interpretation of s 78 (1) as read with s 81 (1) of the Constitution, the age of 18 years has become the minimum age for marriage in Zimbabwe. They argued that s 78 (1) of the Constitution cannot be subjected to a strict, narrow and literal interpretation to determine its meaning if regard is had to the contents of similar provisions on marriage and family rights found in international human rights instruments from which s 78 (1) derives inspiration.

The applicants claimed the right to approach the court seeking the relief they seek under s 85 (1)(a) and (d) of the Constitution. In para 16 of the founding affidavit, the first applicant, with whom the second applicant agreed, states:

“16. The issues I raise below are in the public interest and therefore I bring this application in terms of s 85 (1)(a) and (d) of the Constitution.”

In para 21 of the founding affidavit, the first applicant states:

“21. The instant application is an important public interest application that seeks to challenge the law in so far as it relates to child marriages in Zimbabwe. It is motivated by my desire to protect the interests of children in Zimbabwe.”

At the time ss 78 (1) and 81 (1) of the Constitution came into force, s 22 (1) of the Marriage Act provided that a girl who had attained the age of 16 years was capable of contracting a valid marriage. She had to obtain the consent in writing to the solemnisation of the marriage of persons who were, at the time of the proposed marriage, her legal guardians or, where she had only one legal guardian, the consent in writing of such legal guardian. A boy under the age of 18 years and a girl under the age of 16 years had no capacity to contract a valid marriage except with the written permission of the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”). A child was defined under s 2 of the Child Abduction Act [Chapter 5:05] and s 2 of the Children’s Protection and Adoption Act [Chapter 5:06] to be a person under the age of 16 years.

The applicants contend that since “a child” is now defined by s 81 (1) of the Constitution to mean a girl and a boy under the age of 18 years no child has the capacity to enter into a valid marriage in Zimbabwe since the coming into force of ss 78 (1) and 81 (1) of the Constitution on 22 May 2013. They contend further that s 22 (1) of the Marriage Act or any other law which authorises a girl under the age of 18 years to marry, infringes the fundamental right of the girl child to equal treatment before the law enshrined in s 81 (1)(a) of the Constitution. The argument was that s 22 (1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.

The respondents opposed the application and the granting of the relief sought by the applicants on two alternative grounds. They took as a point in limine the contention that the applicants lacked the right to approach the court claiming the relief sought. The argument made on behalf of the respondents was that although the applicants claimed to have approached the court in terms of
s 85 (1)(a) of the Constitution, they did not allege that any of their own interests was adversely affected by the alleged infringement of the fundamental rights of the girl child.

The respondents pointed to the fact that none of the applicants alleged that she entered into marriage with the boy who made her pregnant. They said that the applicants alleged that they got pregnant, stopped going to school and went to live with the boys concerned at their parents’ homes. The applicants did not suggest that they entered into unregistered customary law unions. The argument was that the applicants were no longer children protected from the consequences of early marriage by the fundamental rights of the child enshrined in s 81 (1) of the Constitution.

On the question of whether the applicants had locus standi to approach the court acting in the public interest under s 85 (1)(d) of the Constitution, the respondents contend that the applicants failed to satisfy the requirements of standing under the relevant provision. They alleged in the opposing affidavits, that the applicants were required to give particulars of girl children whose fundamental rights had been infringed and on whose behalf they purported to act. It was common cause that the applicants made no reference in the grounds of the application to any particular girl or girls whose rights had been, were being or were likely to be infringed by being subjected to child marriage in terms of s 22 (1) of the Marriage Act or any other law. The argument was that the applicants had not produced facts to support their claim to locus standi under s 85 (1)(d) of the Constitution.

The grounds of opposition to the application on the merits are straight-forward. The respondents denied that s 78 (1) of the Constitution has the effect of setting the age of 18 years as the minimum age for marriage in Zimbabwe. Their reason for the denial was that s 78 (1) gives a person who has attained the age of 18 the “right to found a family”. The contention is that the meaning of s 78 (1) of the Constitution is apparent from the grammatical and ordinary meaning of the language used in giving the “right to found a family”. The respondents contend further that s 78 (1) of the Constitution does not give a person who has attained the age of 18 years the “right to enter into marriage”. The minor premise on which the contention is based is that the “right to found a family” does not imply the right to marry.

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