Girls not brides; this ruling will save girls

Saturday November 2 2019

 

By Janet Otieno-Prosper @JanetOtieno

The Tanzania Court of Appeal upheld the 2016 landmark ruling by the High Court against girl-child marriages a week ago.

The Court of Appeal retained the High Court’s decision that increased the minimum age of marriage to 18.

Rebeca Gyumi had pursued and won the case on girl-child marriages through a petition she filed at the High Court of Tanzania to challenge the Tanzania Marriage Act, 1971 (LMA) which allowed girls as young as 14 to enter into marital relations. The Attorney General then launched an appeal that child marriage could ‘protect’ unmarried girls who get pregnant. Various stakeholders await the government to amend the Law of Marriage Act to conform with Court ruling on 18 years being the minimum age at which to marry. Child marriage is a violation of human rights that not only harms girls and women, but also their families and communities.

According to UNICEF, over 30 per cent of girls in Tanzania are married before their 18th birthday - thus ranking the country among those with the highest number of child brides in the world. Here are the key arguments behind this ruling by A. G. Mwarija, W. B. Korosso, M. C. Levira which has been celebrated by women across Tanzania and beyond.

Excerpts from the ruling We have dispassionately considered at length the rival submissions by both parties and the whole record of appeal. We wish, foremost, to appreciate the insights availed by counsel for both parties through their submissions. Indeed, their submissions have carried our mind in serving the purpose of determining the appeal. The impugned provisions were incorporated to serve the purpose at such particular era and perhaps to-date. However, it is our respectful view that Tanzania is not an isolated island. It has from time to time been indebted to legal jurisprudence from other jurisdictions by ratifying and domesticating international, regional and subregional instruments or enacting laws as a means of acknowledging the outcry of the international community and taking action against the violation of human rights which includes the right of a girl child.

By ratifying and domesticating these instruments, the government of Tanzania has demonstrated commitment to enforce them and assure smooth realization of human and peoples’ rights. Thus, the impugned provisions can not be interpreted in isolation rather in comparison to the said instruments which have laid profounding principles on rights to marry and finding a family. It is through them, we can possibly ascertain as to whether sections 13 and 17 of LMA are discriminatory or not.

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Before we proceed further, we have taken deliberate efforts to revisit some of the provisions ‘envisaged in selected instruments under which Tanzania is a member. Under Article 16 of the Universal Declaration of Human Rights, 1948, it is provided that: (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit ofsociety and is entitled to protection by society and the State.

The rights of children

Article 1 of the Convention on the Rights of the Child, 1989, and Article 2 of the African Charter on the Rights and Welfare of the Child, 1990, define a child to mean every human being below 18 years - unless majority age is attained earlier.

Turning to the issue under discussion, it is apparent that the impugned provisions of the LMA on the one hand allow men of full age to marry; it does the same for women - but with relaxed and compromised conditions that they are capable to marry even when they are below the age of majority (18 years). The learned advocates for the respondent were adamant that the law does not promote affirmative action; it instead undermines girls’ progress. With greatest respect we subscribe to this proposition, in the sense that the law does not subject women to any constructive outcome.

Firstly, the impugned provisions have failed to uphold and appreciate the true intentions of the respective international, regional and sub regional instruments. The bottom line of all the Conventions on the Rights of a Child is that no marriage can be contracted with a person or persons who have not attained the age of majority. This principle is envisaged in the Law of the Child Act, 2009 (LCA). Thus, the existence of sections 13 and 17 of LMA do not only violate the international law to which Tanzania subscribes - and has signed and ratified - but also it offends the salutary principles of law of contract which call for competency of the parties who enter into the contract, particularly, in a marriage as a contract. We need to note that the Convention on the Rights of the Child, 1989 came after the enactment of the LMA, 1971. In 2009, Tanzania enacted the Law of the Child Act to reflect the rights protected by the CRC without amending the impugned provisions of the LMA to reflect the age and rights protected in the LCA. In our respective views, we think that amendment of the said provisions was necessary. Thus, with the legislative 32 development under the LCA, the amendment of the Education Act, Cap 353 vide the Written Law (Miscellaneous Amendment) Act and the amendment of the Penal Code through the Sexual Offence Special Provisions Act (SOSPA), which are geared at protecting rights of children, in our considered opinion, we do not think that the development in the above laws are to be treated in isolation with the LMA when it comes to matters touching on the rights of children and in particular rights against discrimination.

Gender-based violence and psychological distress

Secondly, with all due respect to the learned Principal State Attorneys for the appellant, the assertions that different treatment of the same persons promotes affirmative action, we think, is far demanding of merit. There is no scientific ‘proof which substantiate the narration that, due to biological reasons, girls should be subjected to early marriages.

We subscribe to the findings of the High Court that, the operation of sections 13 and 17 of LMA expose girls to serious matrimonial obligations and health risks like domestic and gender-based violence, psychological distress and teenage pregnancies. As rightly found by the High Court it is our settled view, that marriage of a child 33 under 18 years subjects a child into complex matrimonial and conjugal obligations.

Equal rights

Thirdly, we agree with the learned counsel for the respondent that the dictates of section 34(2) of Persons with Disabilities Act, 2010 and section 33(1) of the Employment and Labour Relations Act, 2004 are serving distinguishable purposes. We are of the view that the said provisions cannot be equated with impugned provisions in the LMA. We hold so because in other laws, minorities enjoy preferential treatment which is a positive or rather affirmative discrimination as it aims at facilitating employment opportunities and requisite protection to the disadvantaged. Since the LCA does not define a child by distinguishing between a boy and a girl child and/or give preferential treatment to a girl child, it is high time that a child should also be so recognized under the impugned provisions of the LMA.

In the event, we are now satisfied that the impugned provisions under LMA do not give equal treatment between a boy and girl child thus contravene Articles 12 and 13 of the Constitution. We take note that the appellant did not discuss whether or not the impugned provisions of the LMA are saved under Article 30(1) of the Constitution.

Freedom

However, it is our observation that the said provisions curtail the rights and freedoms of a girl child intended to be protected by Article 30(1) of the Constitution. Therefore, we do not see any cogent reason to disturb the findings of the High Court. Having so stated, the first ground of appeal fails.

In the second ground of appeal the appellant argued that it was wrong for the High Court to equate the age of the child with the age of marriage.

Basically, this ground of appeal is challenging part of the impugned judgment as reflected at page 576 of the Record of Appeal when the High Court stated: “Close reading of the above provisions gives us divergent imports including: that they indeed permit persons under the age of eighteen years who by definition are children to enter into marriage (section 13(1) & (2) i.e. girls at 15 years or even 14 years) while for boys it is 18 years or 14 years; it is thus true that the provisions give differential treatment between girls and boys as far as the eligible age of marriage is concerned.

The appellant disagrees with the above holding of the High Court on account that the age of marriage and of the child is different because they tend to achieve different objectives. It was further contended that the age of marriage has a very close relation to the age of puberty and it is set to protect teenagers who are mostly likely to engage in sexual activities before they attain the age of 18 years.

It is our firm observation that the appellant’s assertions are not, with respect, sound reasons.

Legislative paradigm

We are mindful that a marriage relationship stands as a social contract therefore the age of child and age of marriage are inseparable factors to be taken into account.

As we have stated earlier, girls cannot be protected from sexual activities by allowing them to get married at younger age as correctly argued by the respondent.

When we were expounding the first issue, it was clearly stated that sections 13 and 17 give different treatment between a boy and a girl child. The basis of that holding was in consequential to the age of child against the age of marriage. With the development of legislative paradigm in Tanzania, children of whatever age regardless of the kind of objective they want to achieve are incompetent to consent any contractual arrangement. As such, in our considered views, a girl child does not acquire adult status and/ or capacity to contract because of marriage.

The international legal instruments which Tanzania has ratified and domesticated, expressly provide that men and women should be equal partners in marriage; neither of them should be treated as having overriding right than the other when entering the union.

Human rights

In that sense therefore, we agree with the High Court that the impugned provisions provide for unequal treatment between girls and boys. We wish to add that, a child is a child whether married or not.

So,age has to be considered first before one enters in a marriage contract otherwise there was no need even for the LMA to set age and conditions for one to marry; It is our firm view that, the High Court correctly equated the age of the child and the age of marriage. We thus agree with the submission of the counsel for the respondent that, the second ground of appeal is without merit.

Customary and Islamic Law

We now revert to the third ground as we consider whether customary and Islamic law apply in matters of marriage stated in the LMA.

It is our respectful view that, Tanzania is not an isolated island.

It has from time to time been indebted to legal jurisprudence from other jurisdictions by ratifying and domesticating international, regional and sub regional instruments or enacting laws as a means of acknowledging the outcry of the international community and taking action against the violation of human rights which includes the right of a girl child.

By ratifying and domesticating these instruments, the Government of Tanzania has demonstrated commitment to enforce them and assure smooth realization of human and peoples’ rights.

Compromised conditions

It is apparent that the impugned provisions of the LMA on one hand allow men with full age to marry; it does the same to the women, but with relaxed and compromised conditions that they are capable to marry even when they

are below the age’of majority (18 years). The learned advocates for the respondent were adamant that the law does not promote affirmative action instead it undermines the girls’ progress. With greatest respect we subscribe to this proposition in the sense that, the law does not subject the women to any constructive outcome.

With all due respect to the learned Principal State Attorneys for the appellant, the assertions that different treatment of the same persons promotes affirmative action, we think, is far demanding of merit. There is no scientific ‘proof which substantiate the narration that, due to biological reasons, girls should be subjected to early marriages.

Complex matrimonial and conjugal obligations

We subscribe to the findings of the High Court that, the operation of sections 13 and 17 of LMA expose girls to serious matrimonial obligations and health risks like domestic and gender based Violence, psychological distress, miscarriage and teenage pregnancies. As rightly found by the High Court it is our settled view, that marriage of a child under 18 years subjects a child into complex matrimonial and conjugal obligations.

Thirdly, we agree with the learned counsel for the respondent who hinted that the dictates of section 34(2) of Persons with Disabilities Act, 2010 and section 33(1) of the Employment and Labour Relations Act, 2004 are serving distinguishable purposes.

Conclusion

At the end of the appeal trial, the three judges ruled in favour of the respondent by dismissing the entire appeal, on grounds that it had no merit.

The appellant was supposed to abide by the order of the High Court to cause the amendment of the LMA as directed. Having so stated, the appeal was dismissed in its entirety.

Indeed this is a great step towards ending child marraige which is a target under the United Nations Sustainable Development Goals-2030.

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