Judgment No. CCZ 12/2015
Zimbabwe, Constitutional Court

Judgment No. CCZ 12/2015

DATE 20-01-2016DOWNLOAD LEGAL DECISION

Judges:

Godfrey Chidyausiku

Godfrey Chidyausiku

Paddington Garwe

Paddington Garwe

Anne-Marie Gowora

Anne-Marie Gowora

Antoinette Guvava

Antoinette Guvava

Elizabeth Gwaunza

Elizabeth Gwaunza

Ben Hlatshwayo

Ben Hlatshwayo

Luke Malaba

Luke Malaba

Bharat Patel

Bharat Patel

Vernanda Ziyambi

Vernanda Ziyambi

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Topics:

Adolescents and girl child Age

Related standards:

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16

RELATED STANDARDS

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
Convention on the Rights of the Child Article 3

RELATED STANDARDS

Convention on the Rights of the Child Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Convention on the Rights of the Child Article 2

RELATED STANDARDS

Convention on the Rights of the Child Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Convention on the Rights of the Child Preamble

RELATED STANDARDS

Convention on the Rights of the Child Preamble

The States Parties to the present Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom, Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance, Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth", Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration, Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries
Article 24

RELATED STANDARDS

Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:


(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventive health care, guidance for parents and family planning education and services.


3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. 

4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.

WHY IT MATTERS:

The Constitutional Court of Zimbabwe is the highest court in the country.

By using case law from other nations and adhering to international human rights standards and instruments, this case determined that the welfare of a girl-child who could potentially enter into child marriage is a public concern. This case clearly demonstrates that there are several socio-economic factors that place the girls within a vulnerable population that lacks the ability to approach a court and seek redress on its own. The Court resolves its obligation to hear the case by highlighting the importance of protecting the rights of girls for the welfare of the nation.

This case notes the fact that this law was enacted during a time that human rights instruments failed to establish the minimum age for marriage. The Court focuses on the importance of considering contemporary human rights instruments when interpreting the country’s Constitution. By relying on international conventions, treaties, and influential reports and articles, the Court establishes that a law that is no longer based on modern human rights guidelines and shows serious consequences for girls must be invalidated.  

This case shows the discriminatory effect of a law that differentiates based on gender. This decision recognizes that differences in marriageable ages between boys and girls, is not only discriminatory, but violates human rights instruments. Of particular interest is the fact that great consideration was given to list the possible consequences for girls who enter into marriage. Amongst several other consequences, this decision showed the negative implications for girls who enter into child marriage, including a violation of their right to education. This decision also included health-related consequences to girls and children born to girls. 

This decision won the Golden Gavel Award of the 2016 Gender Justice Uncovered Awards of Women's Link Worldwide.


By using contemporary human rights instruments, and identifying reports and articles that demonstrate the consequences of early marriage for girl children, the Constitutional Court of Zimbabwe sets the minimum age to marry to 18 years of age.  

Two women, 18 and 19 years old who had previously been subjected to early marriage, filed a complaint before the Constitutional Court of Zimbabwe claiming early marriage infringes on the fundamental rights of girls subjected to it. The women petitioned the court to affirm that the Constitution sets the minimum age of marriage in the country to 18 years. In addition, the women petitioned the Court to find a section of the country’s Marriage Act unconstitutional since it discriminated against girls by allowing them to marry two years earlier than boys. The women contend that eighteen years of age has become the minimum age of marriage based on the interpretation of §81 of the Constitution, which enshrines the fundamental rights of children, and §78(1), which provides that “Every person who has attained the age of eighteen years has the right to found a family.” The women contend that based on the definition of “a child” and the interpretation of the Constitution, a girl and a boy under the age of eighteen do not have the capacity to enter into a valid marriage. The respondents justify difference in treatment of a girl and a boy under the Marriage Act on the “old notion that a girl matures physiologically and psychologically earlier than a boy.” The women ask the Constitutional Court to determine whether §78 of the Constitution sets the minimum age for marriage to eighteen years and, if so, whether the Marriage Act and any other law authorizing a girl under sixteen to enter into a marriage, would be rendered invalid.

The Court evaluated the following issues in the case: (1) whether the women had standing (the right to approach the Court), (2) whether the Constitution mandates a minimum age of marriage and as a result the constitutionality of the provision of the Marriage Act allowing girls to marry at 16 years of age.

  (1) Standing and public interest litigation 

The Constitutional Court of Zimbabwe began its analysis by first determining that the women had standing (the right to approach the Court) stating that any person acting in the public interest is entitled to approach a court. The Court established that the primary purpose of the “public interest” approach is “to protect the public interest adversely affected by the infringement of a fundamental right.” The Court stated, “children are a vulnerable group in society whose interests constitute a category of public interest.” The Court established that the paramount test to be used when determining the constitutional meaning of “public interest” for standing purposes is “whether the alleged infringement of a fundamental right or freedom has the effect of affecting or potentially affecting the community at large or a significant section or segment of the community.” Relying in part on case law from South Africa and India, the Court determined that “children fall into the category of weak and vulnerable persons in society,” who do not have the ability to approach a court on their own capacity, or to seek appropriate redress for the legal injury they suffered. The Court identifies that the reasons for this inability to approach the Court include poverty and their socially and economically disadvantaged positions. It determined that the “interest of the girl children subjected to early marriages were properly identified as a public interest” and the two women were properly before the Court.

(2) Analysis of Mandatory Minimum Age of Marriage under the Constitution

The Court then moved to examine the question of interpretation of §78(1) of the Constitution coupled with a reading of the constitutional rights of children, and the validity of the Marriage Act. Importantly, the Court observed it has an obligation to take into account international law and all treaties and conventions to which Zimbabwe is a party when interpreting the Constitution.

Under international conventions and treaties, the Court first examined the context of the section of the Marriage Act, which authorized child marriage. The Court analyzed the validity of the Marriage Act within the framework of the Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child (ACRWC), the United Nations Children’s Fund (UNICEF), the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, and the Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Committee). These instruments prescribe the obligation of the State to protect and enforce the rights of the child, while defining a “child” as every human being under the age of eighteen. The Court observed that the Marriage Act had been enacted when international conventions failed to “specify the minimum age of marriage as a means of protecting children.” The Court noted that at the time, non-binding recommendations based on the Marriage Convention, set the minimum age for marriage to not less than fifteen years. According to the Court, the CRC, CEDAW and ACRWC, together, serve as instruments to define “a child” and establish that child marriage is a harmful social and cultural practice, particularly for the girl-child. The Court also mentioned the concluding observations of the Committee on the International Covenant on Economic, Social and Cultural Rights (ICESCR Committee), which indicate that differences in marriageable age based on gender violate provisions of human rights instruments.  

The Court observed that once a girl entered into a marriage, she is treated as an adult and the laws designed to protect children, would no longer protect the girl. By citing an article, the Court mentioned that the fact that a problem, which mainly affected girls, was not specifically addressed in international instruments such as the CRC, while issues mainly affecting boys was covered, represented a form of discrimination against the girl-child. The Court pointed out the “evidence of the horrific consequences of child marriage” by citing a study conducted by UNICEF titled “Child Marriage and the Law.” As indicated by the Court, the study referred to the vulnerability of the girls; poverty as a main determinant for early marriage; domestic violence; trafficking in women and children; the health costs for the girl and the child born to her; and education. By looking at several studies and reports, the Court established that there is a lack of access to educational opportunities for girls who enter into child marriage, amongst several other consequences.  

The Court examined the context of the enactment of the section at issue in the Constitution. The Court notes that the section was enacted to specify “eighteen years as the minimum age for marriage and abolish child marriage.” The Court observed that the language of the section implicates that “entering into marriage is by definition one of the methods by which a family is founded.” As such, the Court establishes that when read together with the Constitutional Rights of the Child the effect of the section is to establish that “a person who has not attained the age of eighteen has no legal capacity to marry” since a child cannot found a family. The Court determined that since the constitution has the effect of protecting every child equally, the section entitles every girl and boy to equal protection and treatment before the law. Finally, the court observes that even when a girl is pregnant, she remains a child, and entitled to parental care and schooling, until she attains the age of eighteen years. 


The Court unanimously agrees that the Constitution sets eighteen years age as the minimum age for marriage, striking down the Marriage Act which had permitted girls to marry at 16 years of age. As such, the Court declares that no person may enter into any type of marriage before the age of eighteen years. The Court also determines that a girl does not become an adult and eligible for marriage by virtue of becoming pregnant. The Court clearly establishes that pregnancy cannot be a vehicle for child marriage. 

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González Carreño v. Spain, Communication No. 47/2012
Spain, 16-07-2014

González Carreño v. Spain, Communication No. 47/2012

Committee on the Elimination of All Forms of Discrimination Against Women

Ángela González Carreño (“the author”) was in an abusive relationship with her partner for many years. They had one daughter together named Andrea. Even when she initiated separation and divorce proceedings,...
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O’Keeffe v. Ireland
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O’Keeffe v. Ireland

European Court of Human Rights

O’Keeffe v. Ireland examines state responsibility for sexual abuse in a state-supported parochial school in Ireland. The petitioner, O’Keeffe, alleged that the Irish State failed to protect her from abuse in violation of Articles 3, 8, 13,...

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