THE Court of Appeal of Tanzania once again issued a landmark judgment in October last year that brought new hopes to the community after upholding High Court's decision to ban parents from marrying off girls as young as 15.
The High Court had nullified some provisions under the Law of Marriage Act (LMA) which allowed girls under the age of 18 years to get married. The judgment delivered in Dar es Salaam by Justices Augustine Mwarija, Winfrida Korosso and Mary Lavira sets the official marriage age at 18 years.
The justices ruled in favour of Rebeca Gyumi, who is the director and founder of the Msichana Initiative, who was the respondent in the matter, after dismissing an appeal lodged by the Attorney General (AG) to fault the High Court judgment.
"We find and hold that the entire appeal has no merit. The appellant was supposed to abide by the order of the High Court to cause amendment of the LMA as directed. Having so stated, we dismiss the appeal in its entirety with no order as to costs," they declared.
The disputed provisions under the LMA included section 13 and section 17. Section 13 (1) reads, "(1) No person shall marry who, being male, has not attained the apparent age of eighteen years or, being female, has not attained the apparent age of fifteen years."
Sub-section (2) states "Notwithstanding the provisions of subsection (1), the court shall, in its discretion, have power, on application, to give leave for a marriage where the parties are, or either of them is, below the ages prescribed in subsection (1) if- (a) each party has attained the age of fourteen years; and (b) the court is satisfied that there are special circumstances which make the proposed marriage desirable.
While sub-section (3) reads, "A person who has not attained the apparent age of eighteen years or fifteen years, as the case may be, and in respect of whom the leave of the court has not been obtained under subsection (2), shall be said to be below the minimum age for marriage."
Section 17 (1) states that, "A female who has not attained the apparent age of eighteen years shall be required, before marrying, to obtain the consent- (a) of her father; or (b) if her father is dead, of her mother; or (c) if both her father and mother are dead, of the person who is her guardian, but in any other case, or if all those persons are dead, shall no require consent."
Sub-section (2) reads, "Where the court is satisfied that the consent of any person to a proposed marriage is being withheld unreasonably or that it is impracticable to obtain such consent, the court may, on application, give consent and such consent shall have the same effect as if it had been given by the person whose consent is required by subsection (1)."
Following the ruling, various stakeholders, including lawyers and child rights activists, have come forward to support the decision of the Court of Appeal, which is the highest decision-making body in the country, saying it is a great achievement towards the fight against early marriages.
Ms Rebeca Gyumi, the girls' rights activist and winner of the United Nations International Children's Emergency Fund (UNICEF), 2018 Award, who brought the action to the High Court to challenge some provisions under the LMA, says the Court's decision is a victory for all Tanzanian girls.
Speaking to United Nations Radio after the delivery of the judgment in question, Ms Gyumi said the landmark judgment was the most important decisions in the history of liberation for women and girls in Tanzania. The activist explains that the marriage law was oppressing girls, especially those outside the school and deprived them of opportunities for self-development.
"So (this judgment) means a lot not only to the girls of this generation but also to the girls of future generations because I believe they will find this decision and moreover they will find the law that has been changed," she says.
Ms Gyumi has been at the forefront of fighting for the changes by upholding the UN Convention on the Rights of the Child, which insists that anyone under the age of 18 is a child and therefore cannot be married. Prominent lawyer in the country, Mr Alex Mgongolwa, argues that the Court of Appeal's decision has opened a new chapter in the fight against child abuse, especially when they are forced to be married at a young age.
He notes that prior to the decision, there had been a number of awareness campaigns against early child marriage, but they had no legal basis.
"The current existence of these decisions brings new awareness and strength in the fight against child abuse," he says. For his part, Advocate Jebra Kambole explains that these decisions have had a positive impact in many areas and have brought to an end the debate on the role of civil and religious laws on child marriage.
"This is because the Court has clearly stated that civil and religious laws do not apply to matters that have been approved by the Marriage Act," he says. Mr Kambole explains that the decision has sparked a new debate in the community and in various quarters about the struggle against child marriage.
He also points out that the Court's decision now restricts parents who were discontinuing their child girls go to school for marriage. "Therefore, even if a parent prohibits his child go to school, he will not have the opportunity to let her get married until she is 18 years old," says Mr Kambole.
According to the Advocate, these decisions will also reduce the number of teenage pregnancies that were the result of such kind of marriages. "As it is known, the effects of teenage pregnancy include causing maternal and child mortality, especially during childbirth," he says.
Upcoming defence Attorney Augustine Muga notes that the decision was timely because there had been repugnant law that said a girl under the age of 18 could be married with the consent of her parents.
"This was bad to girl child development and contradictory. Now the girl child is spared from early marriage and good for her education. Now that we have free education in both primary and secondary schools by CCM government, girls will benefit fully from this government policy," he says.
The soft spoken lawyer was further quick to point out, "Our President is offering free education, now that the Court of Appeal has handed down a judgment that protects girl children they will equally enjoy the benefits of this policy by our beloved president."
In the judgment dated July 8, 2016, a High Court panel comprising former Principal Judge Shaban Lila, Sekiet Kihiyo and Ama Munisi nullified sections 13 and 17 of the Tanzania Law of Marriage Act, which allow girls to marry at age 15 with parental permission and at age 14 with the permission of a court.
They ruled that the provisions were unconstitutional and, therefore, gave the Attorney General one year from the date of the decision within which to make arrangements for amendments of the law to put the age of 18 years as minimum for one to contract marriage.
The court ruling followed a series of new legal measures, adopted by the Tanzanian government, that make it a crime to attempt to marry school-going children under 18, as well as any "person who impregnates a primary school or a secondary school girl."
It was pointed out by the Court that while the Law of Marriages Act may have been enacted with good intentions in 1971, this intention is no longer relevant because the effect of the Act now is to discriminate against girls by depriving them of opportunities that are vital for all citizens.
Having been aggrieved by such decision, the appellant took the matter to the Court of Appeal, the highest temple of justice in Tanzania, for further determination. He advanced five grounds to fault the judgment, sating the High Court to have erred in law in equating the age of child with that of marriage.
The appellant stated that the High Court erred in law in holding that section 13 and 17 of the Act are discriminatory for giving preferential treatment regarding the eligible ages of marriage between girls and boys and that such provisions have lost their usefulness, thus deserved to be declared null and void.
He faulted the High Court for holding that customary and Islamic laws do not apply in matters of marriage stated in the Act and that various legislative developments that have taken place is unexpected to have valid and competent applications filed in court seeking leave.
In their judgment, however, the justices of the appeals court said it should be noted that the provisions of the LMA were not declared null and void by the High Court and that is why the government was given one year to cause amendments of the Act after the provisions were found unconstitutional.
The justices pointed out that the international legal instruments which Tanzania has ratified and domesticated expressly provide that men and women should be equal partners in marriage, neither of them should be treated as having overriding right that the other when entering the union.
"In that sense, therefore, we agree with the High Court that the impugned provisions provide for unequal treatment between girls and boys. We wish to add that a child is a child whether married or not," the justices said.
According to them, the age has to be considered first before one enters in a marriage contract otherwise there was no need even for the LMA to set age and conditions for one to marry.
They said that it was their firm view that the High Court correctly equated the age of the child and the age of marriage. Before the High Court, the respondent had challenged the constitutionality of sections 13 and 17 of the LMA, which require consent of parents of court for girls below 18 years before marriage.