• Reply to: Law vs Culture: Judgment on Age of Marriage in Zimbabwe

    By Kuda Chitsike

    Last month, Zimbabwe ramped up legal measures to end child marriage, a hopeful sign for a dire problem.

    Child marriage is widely recognized as a violation of children's rights, and it is generally described as the marrying of (primarily) girls under the age of 18. According to UNICEF, in Southern Africa 33 percent of women between the ages of 20 and 24 were married in childhood. It is direct discrimination of the girl child, who, as a result, is often deprived of her basic rights to health, education, development, and equality.  It also exposes girls to intimate partner violence and isolation from economic activities which have long lasting psychological consequences. Tradition, religion, patriarchy and poverty continue to fuel the practice of child marriage, despite its strong association with adverse consequences for girls.

    For more than a decade there has been a sustained and dedicated effort by policymakers, government ministries, U.N. bodies, international and local non-governmental organisations, community-based organisations and individual activists to end child marriage in Zimbabwe. All these efforts culminated in a case being brought before Zimbabwe’s Constitutional Court in January 2015, with the judgement coming a year later that finally outlawed marriage before 18 for both girls and boys.

    The case was brought by Loveness Mudzure and Ruvimbo Tsopodzi, (two former child brides), who, through their lawyer, Tendai Biti, took the courageous step of challenging the Marriages Act, which had allowed girls to marry before the age of 18. This case was brought with the support of non-governmental organisations, Roots, Veritas and Zimbabwe Lawyers for Human Rights (ZLHR). 

    The judgment is very welcome as the Marriages Act set the legal age for marriage at 16 for girls and 18 for boys, which contradicts the Constitution that promotes gender equality. Zimbabwe followed in the footsteps of other Southern African countries that have set 18, and, in some instances 21, as the legal age of marriage. Most recently Malawi did this, but many of these countries have exceptions where girls are allowed to marry as early as 15, if they have parental consent.  As we celebrate this judgment, there is a need to look at the issues of child marriage and consent to sex holistically and educate society because the issue is interpreted in a confusing manner in our conservative and religious society.

    The Criminal Codification and Reform Act states that girls under 12 cannot consent to sex and sexual relations at that age are always regarded as rape.  This changes however, for girls who are above 12, but under 14, at which point the perpetrator, shall still be charged with rape. However, the law further states that, if the male can prove that the girl was capable of giving consent, and that she gave her consent, then the perpetrator cannot be charged with rape but with “sexual intercourse with a young person.”  The law goes on to states that if a girl above 14 but less than 16 has sex with her consent, it is not rape but “sexual intercourse with a young person.” Girls over 16 can consent to sex but cannot marry until they are 18 according to the judgment.

    The law is effectively saying it is permissible for girls to have sex at 16, and, if she is in love and/or becomes pregnant, and wants to get married, she cannot.  This gets more confusing in reality.  Culturally in Zimbabwe, having sex and becoming pregnant is an acceptable path towards marriage, but having unmarried sex and is highly disapproved of. The judgment now creates a clash between the law and age-old culture, but also removes discretion. Are we denying those over 16 who can consent to sex but are under 18, have parental consent, and want to get married, the right to do so?   This lack of discretion is not the case in other Southern African countries, and the judgment seems a case of overkill for the problem of child marriage.

    Although poverty is primarily blamed for driving the practice, there are other factors driving child marriage in Zimbabwe. These range from religious practices, lack of discipline at home, abuse, and family disruptions to over sexualization of the girl child. However, the main driver of child marriage is deeply rooted in the dignity of the family. In order to protect the family honor, as long as the girl is married the circumstances that preceded or led to the marriage are forgotten.  According to research in one district in Zimbabwe, one woman stated that her standing in society is much better as a mother to a married child, whether over or under 18, rather than a single mother, regardless of the circumstances. The other women agreed, they talked about their dignity, (emphasis intended).

    Another said ‘if she is sexually active at 13 how do I stop her from having sex and getting pregnant repeatedly? It is better for her to get pregnant when she has a husband even though she is young. I do not want the responsibility of looking after her and her child while the father is free to do as he wishes. As she has started doing grown up things, she must take responsibility for her actions and stay with the man who made her pregnant.’

    The views of these women are not uncommon, and highlight a problem with the law as it is now to be applied. Whilst it is commendable that there is a legal power to prevent child marriage, the law must also take cognizance of reality and the fact that there are exceptions. The judgment is part of an effort to stop families from marrying off their daughters at an inappropriate age, but should not also penalize the girl child unnecessarily.

    Clearly there remains much to do, and little to do with the law. There is need to look at the legal system as a whole and propose a set of holistic legal and policy reforms that review the landscape of laws impacting on women and children. A broader range of policy alternatives and more sophisticated understanding of multiple strands of law and innovative legal strategies can converge to prevent child marriages.   

    This first appeared in the HuffPost Impact as a blog.

    RAU welcomes the opportunity for their research and articles to be utilised by the public with the proviso that any information that is used, quoted or referenced is credited to the Research and Advocacy Unit, Zimbabwe. RAU would also appreciate being informed of where and how the information has been used. Please email us on info@rau.co.zw


    We care. That’s why we don’t close our doors at 5pm. It’s why we can visit you if reaching us is difficult. Lawyer canning vale

  • Reply to: Truth or Lies?

    27th November 2017

    There is a question that should be on everyone’s lips today. If all it takes is an impeachment process to finally get rid of Robert Mugabe, why did we need a “non-coup” coup? This “non-coup” coup has taken the country into the most perilous position, inches away from becoming sanctioned by SADC, the AU and the rest of the world. As we go forward into whatever new (and most likely old) political arrangement, the army and ZANU-PF must explain to the nation the justification for violating the constitution when there was a ready-made constitutional mechanism already at hand.
    This is not trivial. While everyone tip-toes around using the word coup, it is obvious that all governments, regional, continental and international, are completely aware that it is a coup, but no-one, for obvious reasons, want to say this officially. If they do, then a rapid chain of events must happen. Diplomatic relations must be cut, and a whole range of actions, perhaps even including military action, have to come into play. So everyone plays it down, watches, and waits in hope that an internal solution emerges that does not look like the end point of a coup. But every move so far seems to demonstrate this.
    And so the big question remains, as does a subsidiary question.
    If Emmerson Mnangagwa was so popular in the party, as seems evident today – 10 Provinces and the Central Committee wanted him – why the indirect route of a coup, and not the completely constitutional route of voting Robert Mugabe out at the Congress in December. It seems to be a pattern repeating itself: it suggests that ZANU-PF cannot reform, cannot place constitutionalism above means-end opportunism, and is never willing to test popularity through open contests.
    It also looks suspiciously like Emmerson Mnangagwa could not have won an internal popularity test within ZANU-PF, and needed the “non-coup” coup to achieve this. There is something very uncomfortable about winning an internal election via the power of the state military. This is not a great model for democracy no matter how deep the political crisis in the country.
    This bodes ill for the future. Mugabe has gone and this is clearly cause for celebration, but we must all wonder whether “Mugabism” has gone, and whether the “new” ZANU-PF will show itself capable of reform into a truly modern political party.
    The coming weeks will reveal how much change is likely to come, and, with the near-certain creation of a ZANU-PF headed government of national unity, how much reform will take place. We have been here before. A ZANU-PF dominated GNU in 2009 provided no meaningful reforms, and controlled the constitutional process to the gates of the election in 2013: this prevented any possible challenge to its hegemony through the constitution during the life of the GNU.
    Now that the citizens have found their voice, and their feet, it will be their task more than ever to ensure that any new political configuration adheres rigidly to both the constitution and constitutionalism, undertakes the reforms necessary to undo state capture and securocracy, and takes a truly developmental approach to improving the lives of the citizens.
    And so, it is important always to begin a new relationship based on the truth, no matter how uncomfortable the truth is. Building a relationship on lies, no matter how expedient or necessary they may be, inevitably leads to tears, divorce, and, in politics, to yet another “non-coup” coup. We watch with critical interest.

    Typo... military should read militarily. Good article though

  • Reply to: Elusive identity

    It never crossed my mind that not carrying an ID would result in me being at the mercy of a soldier in an incident that I was caught up in last weekend, when everybody was celebrating the seemingly apparent ushering in of a new era in Zimbabwean politics through the not a coup coup.

    Fascinated by the thought of my very first field trip at my new job I forgot all about identity documents, and carried on to Chipinge. The hassle started at the hotel when the receptionist wanted to verify my identity in order to allocate a room, anxiety began creeping in. I had absolutely nothing to prove that I am Raynold Musekiwa, the supposed beneficiary of the hotel services. The receptionist was good, she just gave me the benefit of the doubt. Worried that I was turning into a shadowy character rather that a free citizen seeking to contribute in my small way to national development, gradually I sank in the waters of depression. Little did I know that it was only a harbinger of impending sorrows. After the announcement that the army had taken over the country’s media on Wednesday, l forgot all about the ID crisis and immediately thrust myself into the euphoria band wagon. The joy was infectious. I could not help but rejoice with the nation.

    I rejoiced at the prospect of a future without Mugabe, the only president I have known since birth. Could the 37 years of Mugabe’s rule be over? I could not imagine how the feeling of change revived my dearest hope of a democratic and prosperous Zimbabwe. The joy was not for long though as on my way back to Harare I had hurdles awaiting. The road was dotted with roadblocks manned by soldiers on major roads leading in and out of the cities and towns. Soldiers have recently rebranded themselves, their presence for most Zimbabweans is seen to epitomise peace, protection, revolutionaries, and even friends of the people. My experience with them was far from these welcome gestures. I had no ID so they could not trust me no matter how innocent I tried to look. Luckily I somehow escaped all the roadblocks save the last one along the Harare Mutare highway. This one was thorough, with everybody having to produce their identity documents without fail.

    I was sweating profusely when my chance to produce my ID came. It was clear that I could not produce anything satisfactory to guarantee my innocence. When the towering figure of the soldier extending his arm to reach for my ID approached my astounded face I felt the whole world crumbling on my head. Perched on the seat corner I mumbled in a light voice that I had forgotten the ID without full control of what I was uttering. When he insisted that he was not joking I helplessly delved my hands in the pocket showing him the few bank notes that were remnant after an eventful trip. He asked me if I wanted to disembark and spend a day on the road block in order for me to give in to his requests. This really numbed my brains, as he stood menacingly on my side I felt tears welling up in my eyes and the rest of my body was shaking uncontrollably. After all soldiers were not as friendly as they were portrayed in the media.

    He then turned to my colleagues to get information about my identity. I cannot thank them enough for redeeming me from such adversity. They calmly explained that I was part of the team and had forgotten my ID at home. After being let off the hook I did not know whether to thank my colleagues or apologise for the unnecessary delay. We arrived in Harare to the joy in the streets with hordes of people partaking in the historic march to the state house registering their discontent with Mugabe’s rule and calling for his immediate resignation.

    The notion that identification is indispensable keeps lingering in my mind, next time I get out of the house I make sure my ID comes along. This also goes to peace loving Zimbaweans, keep your ID anywhere you go. While everybody was hailing the soldiers for liberating the people from Mugabe’s rule, some posing for selfies with them, mine was a bumpy experience laden with fear factors.

    Carrying yo ID is necessary especially when travelling long distances

  • Reply to: My Mother, The Alien.

    My mother was born and bred in Rusape, Zimbabwe, she has identified all her life as a Zimbabwean, while acknowledging the fact that she had immigrant parents. Her parents, were naturalised Zimbabweans, my grandfather was born in Mozambique and my grandmother was born in Malawi.

    In 2002 when the Citizenship Act was amended, my mother became an Alien. She had to renounce Mozambican and Malawian citizenship which she had never held, she went through an arduous and emotionally taxing experience dealing with the Registrar General’s office, never a pleasant place to be even on a good day. As well as dealing with the Mozambican and Malawian Embassies that did not recognise her as one of them and therefore did not make the process easy or cheap.

    Every time my mother has to renew her passport, she dilly dallies because she doesn’t want to go through the Citizenship office to have her papers verified and be made to feel less than what she is.

    Fast forward to 2017.

    On the 29th October, the first day of phase 2 of the Zimbabwe Electoral Commission (ZEC) voter registration blitz, my mother confidently went to register with her ID, marriage certificate, my father’s death certificate and the proof of residence that still is his name. The process of dealing with the Master of the High Court is a story for another day. The registration officer was not interested in all her paperwork all he asked for was her ID. After examining it he told her she cannot register because she is an Alien! Her ID has CN on it, meaning she is a citizen via naturalisation and therefore not allowed to vote. The demeanor and scorn of the registration officer unnerved her. This was the first time she had been called an alien to her face. She was regarded as an alien, the aliens we see on Sci Fi movies, foreign, ugly and unwanted beings.

    Now, my mother is not one to be easily deterred or intimidated, she asked what her options were being an educated and savvy Gogo. She was told that had get her ID changed. She needed to go back to the Register General’s office, pay a certain amount and get a new ID. She had already done the renunciation process more than 10 years ago but it seems this wasn’t enough.

    My mother went home, checked her passport, it didn’t have CN on it so she went to a different centre nearby and used that to register! Upon the advice of random people at the centre, she got her proof of residence form already stamped by a Commissioner, who was some distance from the centre: all she had to do was fill in her details. Something she considered odd.

    My mother had a passport without CN on it; that was her saving Grace. She would not have been able to register if she only had the ID and did not have the $50 required to change the ID. How many people across the country have been turned away on this same technicality? What is ZEC doing to publicise this and make it easy for Zimbabweans to go and register to vote in accordance with the Constitution?

    With her passport the process took less than 10 minutes. Possibly the only positive thing she had to say about the whole process.

    Her experience with the registration process has made her more determined to vote when the time comes.

    My mother, the alien will vote in 2018.

    Who is not alien/migrant? From 1000BC onwards it was the Bantu migration to populate central and southern Africa where ther was only the Khoisan . So who is not alien or mmigrant in our lands. Soon we will be crazy like the White Americans of European descent who call themselves..."we the people"true Americans and everyone else of another descent has an adjective as African American, Asian American, even Red Indians who were ther before everyone else are called Native Americans and not just American, suggestimng with the qualifying adjective that they are not real Americans.Those fropm Europe are never reffered to as European Americans but simplyA merican. The Alien/migrant issue to someone born and bred in a country and never been to where great or great great parents came from is nonensical.