Judgment No. CCZ 12/2015 2
Const. Application No. 79/14
4. The Customary Marriages Act [Chapter 5:07] is unconstitutional in that it does not
provide for a minimum age limit of eighteen (18) years in respect of any marriage
contracted under the same.
5. The respondents pay costs of suit.”
The application arose out of the interpretation and application by the applicants,
on legal advice, of s 78(1) as read with s 81(1) of the Constitution. Section 78(1) of the
Constitution is one of the provisions in Chapter 4 which enshrine fundamental human rights
and freedoms. It provides:
“78 Marriage Rights
(1)
(2)
(3)
Every person who has attained the age of eighteen years has the right to found
a family.
No person may be compelled to enter into marriage against their will.
Persons of the same sex are prohibited from marrying each other.”
Section 81(1) of the Constitution enshrines the fundamental rights of the child.
The fundamental rights, the alleged infringement of which are relevant to the determination of
the issues raised by the application, are:
“81 Rights of Children
(1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(2)
(3)
Every child, that is to say every boy and girl under the age of eighteen years,
has the right –
to equal treatment before the law, including the right to be heard;
....
...
to family or parental care or to appropriate care when removed from the family
environment;
to be protected from economic and sexual exploitation, from child labour, and
from maltreatment, neglect or any form of abuse;
to education, health care services, nutrition and shelter;
...
...
A child’s best interests are paramount in every matter concerning the child.
Children are entitled to adequate protection by the courts, in particular by the
High Court as their upper guardian.”