Judgment No. CCZ 12/2015 7
Const. Application No. 79/14
development of girls and boys, as justification for legislation which condemns a girl child,
under the pretext of marriage, to a life of sexual exploitation and physical abuse.
The respondents took the view that there was nothing unconstitutional about
legislation which authorised child marriage. They suggested that the applicants were the cause
of the problem. The argument was that they should have taken responsibility for getting
pregnant. The contention is that instead of seeking to have legislation on child marriage
declared unconstitutional, the applicants should have taken advantage of their painful
experiences to embark on advocacy and educational programmes to share their experiences
with girl children. In that way, the argument went, they would give the girl children the skills
and knowledge necessary to enable them to make the right choices on matters of sexual and
reproductive health.
Four questions arise for determination from the positions taken by the applicants
and the respondents. They are:
(1)
Whether or not the applicants have, on the facts, locus standi under s 85(1)(a)
or s 85(1)(d) of the Constitution to institute the proceedings claiming the relief
they seek.
(2)
If they are found to have standing before the Court, does s 78(1) of the
Constitution set the age of eighteen years as the minimum age for marriage in
Zimbabwe.
(3)
If the answer to issue No. 2 is in the affirmative; did the coming into force of ss
78(1) and 81(1) of the Constitution on 22 May 2013 render invalid s 22(1) of
the Marriage Act [Chapter 5:05] and any other law authorising a girl who has
attained the age of sixteen to marry.