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Child Marriages Remain A Major Challenge In South African Development Community

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Monday, October 19th, 2020
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There has been a flurry of legal battles to end child marriages in the Southern African Development Community (SADC) region over the past few years. Successes have been scored on the legal front at both regional and national levels but equally so there have been some noticeable barriers in the fight against child marriages.

In 2016, the SADC Parliamentary Forum (SADC-PF) adopted a regional Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage. The Model Law defines a Child Marriage as “a statutory or customary union in which one party is a child or both parties are children” and defines a child as any person under the age of 18, in line with international human rights law. It goes on to state that “no person under the age of 18 shall marry”.

The Model Law was inspired by and has in turn inspired civil society organisations in the region to advocate for national laws to end child marriages, and where legal and constitutional provisions already exist, to push for implementation. As a result of this activism, the highest courts in the region have outlawed child marriages. In 2016, Zimbabwe’s constitutional court in the case of Mudzuru and Another v the Minister of Justice and Others declared the country’s Marriage Act [Chapter 5:11) and the Customary Marriages [Chapter 5:07) unconstitutional because the two laws allowed marriages of children under the age of 18. In 2019, the Tanzania Court of Appeal in the case of The Attorney General v Rebecca Z. Gyumi similarly outlawed child marriages and declared the provisions in the Marriage Act allowing child marriages unconstitutional, despite spirited attempts by the State to defend the practice on the basis of culture and religion.

Legislatures in the region have done their part to fight child marriages. There have been numerous debates in parliaments across Southern Africa about the impact of child marriages on children, families and communities, with legislatures calling for a ban on the practice. Whilst in some of the parliaments, these debates are ongoing, in others, laws have been or are in the process of being passed to fight the practice.

In 2015, the Malawi Parliament passed the Marriage, Divorce and Family Relations Act which outlawed Child Marriages and a 2017 constitutional amendment increased the minimum age of marriage from 15 to 18 for both girls and boys. Zimbabwe has a Marriage Bill in parliament, and the law seeks to comply with the 2013 constitution, the 2016 constitutional court decision and the SADC Model Law by legislating against child marriages. In 2019, the Mozambican Parliament passed the Law on Prevention and Combating of Premature Unions and revised the country’s Family Law to prohibit marriages of children under the age of 18.

Legislatures in the region have done their part to fight child marriages. There have been numerous debates in parliaments across Southern Africa about the impact of child marriages on children, families and communities, with legislatures calling for a ban on the practice. Whilst in some of the parliaments, these debates are ongoing, in others, laws have been or are in the process of being passed to fight the practice.

In 2015, the Malawi Parliament passed the Marriage, Divorce and Family Relations Act which outlawed Child Marriages and a 2017 constitutional amendment increased the minimum age of marriage from 15 to 18 for both girls and boys. Zimbabwe has a Marriage Bill in parliament, and the law seeks to comply with the 2013 constitution, the 2016 constitutional court decision and the SADC Model Law by legislating against child marriages. In 2019, the Mozambican Parliament passed the Law on Prevention and Combating of Premature Unions and revised the country’s Family Law to prohibit marriages of children under the age of 18.

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