Judgment No. CCZ 12/2015 26
Const. Application No. 79/14
Section 46(1)(c) of the Constitution imposes an obligation on a court when
interpreting any provision of the Constitution contained in Chapter 4, to take into account
international law and all treaties and conventions to which Zimbabwe is a party. Both s 22(1)
of the Marriage Act and s 78(1) of the Constitution were born out of provisions of international
human rights law prevailing at the time of their respective enactment. The meaning of s 78(1)
of the Constitution is not ascertainable without regard being had to the context of the
obligations undertaken by Zimbabwe under the international treaties and conventions on
matters of marriage and family relations at the time it was enacted on 22 May 2013.
In deciding whether s 22(1) of the Marriage Act or any other law which
authorises child marriage infringes the fundamental rights of girl children enshrined,
guaranteed and protected under s 81(1) as read with s 78(1) of the Constitution, regard must be
had to the contemporary norms and aspirations of the people of Zimbabwe as expressed in the
Constitution. Regard must also be had to the emerging consensus of values in the international
community of which Zimbabwe is a party, on how children should be treated and their wellbeing protected so that they can play productive roles in society upon attaining adulthood.
The object of the interpretation of s 78(1) as read with s 81(1) of the Constitution
and of s 22(1) of the Marriage Act should be to ensure that the interpretation resonates with the
founding values and principles of a democratic society based on openness, justice, human
dignity, equality and freedom set out in s 3 of the Constitution, and regional and international
human rights law. In considering the meaning of s 22(1) of the Marriage Act as a norm of
behaviour towards children, the court has to take into consideration the current attitude of the
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