WHY THE LAW HAS FAILED TO END CHILD MARRIAGE
Published on May 19th, 2023 by Tinatswe Mhaka
In 2013 Zimbabwe adopted the amended Constitution. While this is a part of welcomed law
reform the problem was that various pieces of legislation did not correspond with this new
Constitution (particularly around gender equality in marriage laws, age of consent and child
marriage). In 2015, an Inter-Ministerial Taskforce was set up to carry out constitutional
alignment. These would be the individuals responsible for the harmonization of different
laws with the newly amended constitution. In response to child marriage prevalence in
2016, two women challenged sections of the Marriage Act that made it legal for a child
below the age of 18 to be married. In this landmark case Mudzuru & Another v Ministry of
Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14, CC 12-
15 the Constitutional Court ruled that
- The legal age of marriage is 18.
- Section 22 of the Marriage Act and any other law allowing persons below the age of 18 to
marry is inconsistent with the Constitution. - No person may enter into a marriage or customary law union before the age of 18. In
2017, the House of Assembly began developing the Marriages Bill, in response to this
judgment and other gender-related injustices. While this judgment sparked the conversation
around child marriage it certainly did not stop it. One would have thought that the
protection of vulnerable groups was a priority but it is now 2020 and child marriage has not
been criminalized and legislation has not been repealed. Though the official judicial position
is that it is prohibited, multiple pieces of legislation continue to perpetuate the crime and
provisions that render that decision ineffective: - THE CONSTITUTION OF ZIMBABWE, 2013
Section 26 states that the State must take appropriate measures to ensure that no marriage
is entered into without the free and full consent of the intending spouses and children are
not pledged in marriage. Section 78 states that only persons aged 18 and above can found a
family. While these sections can be relied on to confirm the legislature’s position on child
marriage, there has been very little effort to make any alignment that will challenge the
status quo of women and girls in Zimbabwe.
● THE DOMESTIC VIOLENCE ACT 5:16
Section 3 (1) (l) of the Act lists child marriage as a form of domestic violence and section 4
states that anyone guilty of any offense in the former is liable to a fine and imprisonment.
While problematizing child marriage, the Act does not define who a child is at law, neither
does it expand further on the definition and penalty that is attached to it. Realistically, this
means that it is impossible to prosecute a perpetrator with reliance on this section. It is
moot.
● THE MARRIAGES ACT 5:11
Section 20 of this Act deals with the marriage of minors. The section allows for a legal
guardian to give consent to the marriage of a child below a certain age, and Section 22
states that age to be eighteen for boys and sixteen for girls (a discriminatory and unjustified
distinction). While this was declared unconstitutional by the Mudzuru case, this is how the
Act currently reads. Additionally, the Act neglects to clearly state an age that marriage to a
minor becomes illegal or the criminal liability attached to facilitating or taking part in it. (This
will be remedied by the Marriage Bill that has now been in its development stages for four
years).
● TERMINATION OF PREGNANCY ACT
Section 3& 4 of the Act state the limited circumstances under which women in Zimbabwe
can terminate a pregnancy. These are :
● Endangerment to the life of the mother
● Where there is a serious risk to the mental or physical health of the child ● Where the
pregnancy is a result of unlawful intercourse namely rape or incest.
Section 64 of the Criminal Code (Reform and Codification) Act states that a person found
guilty of sexual intercourse or conduct with a minor above the age of 12, be charged with
sexual intercourse or performing an indecent act with a young person instead of rape. The
impact of this provision has been that minors above the age of 12 who are not protected by
the Criminal Code cannot meet the requirement of unlawful sex, and thus cannot lawfully
terminate under the Termination of Pregnancy Act. This is against section 78 of the
Constitution that disallows people below the age of 18 to start a family. It also increases the
number of girls below the age of 16 that are forced into marriage after falling pregnant, or
surviving rape. The end result of the confusion between laws is that crimes are hardly
deterred and matters are difficult to determine.
● THE CRIMINAL CODE (REFORM & CODIFICATION) ACT
Section 64 of this Act allows perpetrators to commit sexual acts with minor children that are
above the age of 12. While the wording does not actually state that, it allows the court to
say that a survivor of what is commonly known as statutory rape was capable of consenting
to sexual acts and accordingly¸ the perpetrator can be charged with sex with a minor. Not
only does this clash with Constitutional provisions, it borderlines absurdity to allow 12-year-
olds to consent to sex. This section has been instrumental in the perpetuation of harmful
value judgments that hyper sexualize young girls and leave room for their exploitation by
perpetrators that are familiar with the law.
Essentially, though child marriage has been caused by harmful religious and cultural
practices, the legislature has failed to regulate its prevalence through deterrent laws. The
inconsistencies in the system worsen the problem. To eliminate child marriage section 3 of
the Marriage Bill criminalizes child marriage, but it is necessary to confront whether the
normalized order of things can be changed by a 5-year prison sentence for committers of
sexual crimes that have been poorly and loosely defined.
OTHER RELEVANT ACTS :
THE CHILDRENS ACT 5;06
CUSTOMARY MARRIAGES ACT 5:07 TRAFFICKING IN PERSONS ACT 9:25 GENERAL LAW
AMENDMENT ACT 8:07
The Nexus Between Odious Debt and Gender Justice
Writing Consultancy, Zimbabwean Coalition on Debt & Development, 2020.
Government debt is considered odious when a government’s leaders use these borrowed
funds in ways that do not benefit its citizens. Zimbabwe is plagued by massive debt, with
government debt being equivalent to 52,87% of the country’s entire GDP (Plecher, 2020). To
date, government expenditure shows that debt is accrual is prioritized for military expenses
and selected civil servants salaries while the gender balance agenda is side-lined. .
Zimbabwe serves as an empirical example of the direct link between debt and justice in the
form of access to resources (Bhatasara and Chiweshe, 2019). This article will explore the
socio-economic impact of odious debt accumulated by the Zimbabwean government has
directly on gender justice, because in addition to exclusion in debt processes there is lack of
mainstreaming that results in women bearing the brunt of negative gendered
implications(UNDP, 2011). For purposes of this analysis, gender justice will be considered as
women’s uninhibited access to basic resources and equitable participation in economic
activities.
Case Study 1: Bond Notes
In November 2016, backed by USD $200 million loan from the African Export-Import Bank,
the Reserve Bank of Zimbabwe issued bond notes (Southall, 2018).These were not legal
currency, but a form of ‘legal tender’ pegged at parity with the US Dollar to help ease the
distress of the cash crisis due to the lack of hard currency in circulation. The loan attained
was meant to ensure citizens had access to cash. More importantly, together with
implementation of tighter exchange controls, this monetary policy would ensure critical
industries would have direct access to foreign currency through the Reserve Bank (Dzirutwe,
2016). As an agriculture-based economy, commercial farming was identified as a critical
industry guaranteed to receive loans as well as payments for exports in foreign currency.
Since the execution the Fast-Track Land Reform Programme in Zimbabwe, women have had
greater access to land, playing a meaningful role in commercial farming, especially in the
tobacco industry which accounts for 40% of Zimbabwe’s exports (United Nations Food and
Agriculture Organisation, 2003). Through the land reform, women were allocated land
alongside men, giving them the opportunity to gain economic freedom in their own right
(Hanlon, Joseph, Manjengwa, 2013).
According to statistics from the Tobacco Industry Marketing Board Farmers, 39,5% of
registered tobacco farmers are women (Moyo, 2014). The Zimbabwe Association of Women
Tobacco Farmers notes that the increase in women tobacco farmers over the years is
‘actuated by an increase in the number of single mothers, either widowed or divorced,
pressed by hard financial responsibilities of looking after their children’ (Moyo, 2014).
Despite assurances by the government and the Reserve Bank, the bond notes dismally failed
to serve their intended purpose. With a parallel exchange rate leading to the depreciation of
the ‘legal tender’, the cash crisis continued and the lives of the ordinary citizen being made
exponentially harder. Tobacco farmers were hit particularly hard in 2019, where the
government simply printed more bond notes to pay them for their exports instead of paying
them in hard currency (Kundai, 2019). Erstwhile, the government used the foreign currency
gained from the African Export-Import Bank loan to fund its luxury expenditure on
excursions, new cars for provincial chiefs and solar energy projects that have failed to
materialise (Chikono, 2019).
Case Study 2: Service Delivery & Healthcare
On the 1st of October 2018, the government gazetted into law the 2% tax on electronic
transactions (Mushava, 2018). These measures were gazetted in Statutory Instrument 205 of
2018, Finance (Rate and Incidence of Intermediated Money Transfer Tax) Regulations, 2018,
under the Transitional Stabilisation Programme. The program was to run until 2020, and was
a part of the government’s commitment to developing public infrastructure, with a focus on
the healthcare sector (Zimbabwe Independent, 2018) . At the time the poverty datum line
was at RTGS500 and while most households suffered, the reassurance from the Ministry of
Finance was that those funds would be directed into advancements to benefit the country at
large. Since then there have been several strikes by doctors and nurses in the healthcare
system attesting to the fact that no developments have been made in public health
institutions in addition to low and late wages. Strikes held in December 2018, September
2019, and throughout 2020 have been a direct cause of misappropriation of funds that
ought to have been purposed for the elevation of standards in medical care in Zimbabwe
(Nyathi 2020). Most affected by these shortcomings were the nurses (80% being women)
and doctors designated to maternity wards across the country (Chikanda,2016). Women
seeking to deliver their babies at several wards including Harare Hospital and Parirenyatwa
were required to bring their own water, gloves, and light bulbs to ensure a better birthing
experience as the hospitals did not have these. Midwives reported delivering babies via
candlelight and in many instances turning women away because there were just no
resources to facilitate delivery. The state of the public health sector has only further
deteriorated, being the primary cause of high maternal mortality rates and increased risk of
death at labour.
Recommendations
To tackle the exclusion of women from debt processes and gendered implications of odious
debt it is necessary to tackle the issue with a bottom-up approach that eliminates the
uneven playing field that enables the injustice to begin with. A primary recommendation
would be the inclusion and increased participation of women in public debt management
framework (Bhatasara and Chiweshe, 2019). Debt policies are designed with little or no
regard for the realization of women’s rights and the closest they have come is through the
rhetoric of women’s economic empowerment which focuses on how women will contribute
rather than how they will be supported to realize their rights (Brent Woods Project, 2019).
The second recommendation is to carry out gender impact assessment in all public
expenditure. This includes the analysis of annual budgets, statutory instruments and
executive state initiatives. There is a need for government to protect vulnerable women
from disproportionately being affected by debt servicing and loan conditionality (Bhatasara
and Chiweshe, 2019). There is a need to factor in the intricate operation of patriarchy that
speak to societal perceptions and harmful value judgments that contribute to continued
corruption. This may also look like decreasing budget cuts in sectors where women are the
primary benefactors of the economy e.g. new tobacco reform and informal trade policies.
Another form of crisis prevention would be to increase transparency of lending and
borrowing. This would enable parliaments, media and civil society to hold government
accountable of how borrowed money is used (Brent Woods Project, 2019). While this may
be difficult in a country like Zimbabwe where corruption culture is rife, it is necessary to
continue to problematize lack of accountability and arbitrary use of discretion by relevant
financial institutions.
To minimize the short term effects on women and long term effect on gender disparity as a
whole, it necessary to implement clear policy and law addressing gendered injustice through
corruption. Current laws around corruption such as the Prevention of Corruption Act
(Chapter 9:16) do not address gender based forms of corruption and as a result it is difficult
to bring justice in that regard (Bhatasara and Chiweshe, 2019)
Conclusion
In conclusion, the debt management policy need to be evaluated and restructured in the
light of women’s rights and the progressive inclusion where the state takes extra steps to
reconcile the existing state of gender inequality. Currently, there has been a disproportional
burden placed on women, especially in certain sectors i.e. healthcare and agriculture and
that is counterproductive to inclusive sustainable development in Zimbabwe.
LIST OF REFERENCES
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2020)
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AFRICAN FORUM AND NETWORK ON DEBT AND DEVELOPMENT ‘The Impact of Indebtedness
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http://www.fao.org/3/y4997e/y4997e00.htm#Contents
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