Author: Njeri K. Omesa
Rebecca Gyumi of the Msichana Initiative filed an application before the High Court of Tanzania in Dar-es-Salaam (Miscellaneous Civil Cause no 5 of 2016) through which they challenged the constitutionality of the provisions of the Law of Marriage Act (Cap 29), specifically Section 13 and 17 that allow for a girl under the age of 18 to be married. The matter was placed before a bench consisting of Principle Judge S. A Lila, Judge S. S Kihio and Judge A. A Munisi.
In summary, the learned counsel for the petitioners argued that the offending provisions infringe basic constitutional guarantees of equality and freedom from discrimination. The provisions of the Law of Marriage Act contravene principles of equality as they set out different ages for which a girl can be married (15, or 14 with the consent of her parents or of the Court). Yet for a boy the minimum age is set out at 18 years. They argued that the Law of the Child Act of 2009 refers to any person below the age of 18 as a child and as such, a girl child below the age of 18 did not possess the necessary legal capacity to enter into a marriage. Furthermore, the obligations and responsibilities of marriage as well as the risk of health complications that may result were incompatible with the best interest of the child. Learned counsel relied on local and international precedents including the Zimbabwean matter of Loveness Mudzuru & Ruvimbo Tsoddz V Minister of Justice Legal & Parliamentary Affairs and Others that deliberated on similar provisions. Aswell as provisions contained in international instruments which Tanzania has signed and ratified (UDHR, CRC, ACREW, ICCPR, CEDAW), all of which call for the elimination of all forms of discrimination.
The Petitioners thus sought for the offending articles to be declared null and void and to be expunged from the law books, calling for the age at which both boys and girls may enter into marriage be 18.
The Principle State Attorney contended that the provisions in the Law were indicative of the will of the people at the time of enactment, in a bid to accommodate the divergent cultures and traditions relating to marriages. She argued that the Law provided sufficient protection in the provisions because it requires one to obtain the leave of the Court before said marriages could be entered into. The learned counsel however conceded that the Law of Marriage Act has been the subject of much debate and further argued that the government was already working on remedying the situation as such that ought to be enough.
The Court on close reading of the provisions of the Marriage Act found that the aforementioned provisions of the Marriage Act are discriminatory and offend the principle of equality as they give differential treatment between girls and boys as far as the eligible age for marriage is concerned. The requirement for parental consent or consent from the Court further interested the Honorable Judges who in their words said “The only inference we can draw is that even the law itself had reservations on the capacity of the child to enter into marriage.”
Further, the Honorable Judges agreed that it was desirous to place the responsibilities of matrimony on a child and took note the possibilities of serious health risks they may be exposed to. They quoted Article 6 of the Maputo Protocol that encourages States to ensure equality between men and women and that both are regarded as equal partners in marriage. The Court addressed itself to the argument in which the respondent argued that since the government was working on other processes to look into the Law of Marriage Act and held that the matter was rightly within the ambit of the Court
In their historic landmark decision given on 8th July 2016, the Court found that sections 13 and 17 of the Law of Marriage Act have not only lost their usefulness (as of the time of their enactment), but that they were unconstitutional. The court directed the Government to amend the Law within a period of one year from date of the judgment making 18 the age at which both boys and girls could legally enter into marriage.