Courts claim pre teens can consent to sex and marriage . . . really?!

We really need to sort out the inconsistencies that we have in law regarding the age of consent for marriage. At the same we need to be consistent in the way we interpret whom we consider minors and when we decide that children are no longer minors.

Have I confused you?

Well, we should all be confused by the law and the practices around children, marriage and abuse of children.

Let me explain . . .

There is growing recognition by activists and advocates that one critical element that needs to be addressed in communities in order for development to be meaningful is the promotion and protection of the rights of the girl child.

Numerous studies have been conducted and so there is proof that a community with educated and empowered girls develops better and this has a cascading effect for other people in that area, compared to a community that doesn’t accord these rights to girls.

Over the years emphasis has been placed on fighting for the girl child not to be forced into early marriages. Cultural and religious beliefs have played a significant role in perpetuating this practice. Economic hardships that families face has been a force factor for some parents consenting to the early marriage of their girls in order to ease the financial burdens of the families as the girls become someone else’s responsibility and they receive the roora (bride price).

The most significant step that Zimbabwe made was the introduction of a new Constitution that places importance on the rights and welfare of children. This can be seen in the Bill of Rights that gives children rights and recognises that the age of 18 is the time that one can contemplate stating a family.

But then there is legislation which is contrary to the spirit and purpose of the new Constitution on this matter - for example the Marriage Act and Customary Marriage Act put the age of consent to marriage at and so these need to be realigned to the Constitution.

The Constitution as the supreme law of the land, specifically states that marriageable age is 18 so it is disturbing to note that the practice when it comes to this issue is different.

It appears that it is acceptable for children to engage in sexual relations and enter into early marriages and here are a few reasons why I make this assertion.

The new requirements on marriage in Zimbabwe issued by the Registrar Generals Office (who is in charge of registering births, deaths and marriages in Zimbabwe), especially when one is entering into a marriage with foreigner poses a challenge. A marriage licence is required when one intends to get married in Zimbabwe or abroad. So a Zimbabwean citizen must go to the Registrar General’s Marriages office and apply for a certificate of non-marriage to confirm their marital status.
I was shocked to discover that in order for the Registrar’s Office to issue out the certificate of non-marriage, there is a fee that is charged to the applicant. Not a fee for the application. Oh no, no, no! It is a fee for you are required to pay for each year that you were not married!

This fee is calculated from the age of 11 for the female and age 13 for the male to the time you make the application to have this certificate issued. This in essence means the age you intend to get married.

I enquired why they are calculating from the age of 11, instead of 18, I was told that in Zimbabwe from the age of 11 years one can get married. I had to digest the answer I was given, and the only conclusion that came to my mind, was that this means in essence that there is a direct contradiction in what the law states and what actually is the practice and belief, when it comes to this issue.

How is it that a minor, an 11-year-old, can enter into a marriage contract, a life changing experience, which produces a great amount of responsibility, for a child and most of the times it is binding for life? Yet this very same minor before the age of 18 is unable to enter into other contractual obligations, take part in significant activities such as voting or get legal employment.

The practice is that they can be issued with a letter of clearance by a state institution which allows them to enter into a marriage contract. The whole reason that the age of majority is set at 18 is the realisation that a person under that age is unable to make rational decisions.
How then can that irrational being, be allowed to enter into a marriage contract or consent to matters of a sexual nature which are life changing?

As a woman who went through this experience, I wondered where I am to get protection if the law itself is failing to afford me this protection. In addition, I felt as though I was being penalised for taking so long to get married because the fee increases the longer you take to get married. This is mind boggling, but this is the stark reality.

Furthermore, the courts have this week alluded to this fact through their practice: A headline in the Herald on the 9th June, 2015 stated that there was ‘Concern as courts set age of majority at 12.’ This headline was in response to the manner in which courts are sentencing sexual cases against minors which seem to be trivialising child sexual abuse. Perpetrators are getting away with fines, short custodial sentences, and, at the same time, even getting community service for sexually related offences. One could say that animals are prized over women and girls’ dignity as stock theft cases are given long custodial sentences without the option of a fine. It is no wonder that this has caused an outcry amongst women rights activist groups.

This seems to suggest to me, that in Zimbabwe, when it comes to children and the issue relating to marriage and matters of a sexual nature, the law becomes very blurred and alternatives are used to try and resolve these issues.

Where this should provide the opportunity to expand the law, and interpret it in a way that is progressive in stemming out abuse and violence against children, this opportunity is not being taken up by those that develop the law and by those that apply it daily. In order to resolve this issue, there is need for consistency in the law that relates to children, marriage, and their consent to marriage and sexual relations so that the practice is the same. I believe that, if these inconsistencies are addressed, we will be able to see a harmonised and holistic approach taking place in its application. A change in the mind-sets of the drafters of the law, and those that apply the law, will be instrumental in the drive to ensure that 12-year-old girls are not considered as capable of consenting to sexual relationships.

Fungisai Gcumeni 11.06.15

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