Universalism versus Cultural Relativism: A Study of the Zimbabwean Laws Regulating Child Marriages

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Spring Semester 2020 Thesis in Law, 30 Credits

Master in Law, Gender and Society, 120 hp Supervisor: Åsa Yttergren

UNIVERSALISM VERSUS

CULTURAL RELATIVISM

A Study of the Zimbabwean Laws Regulating Child Marriages

Tilda Christensson

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Abstract

In 2016, Zimbabwe had a historical court case that resulted in the amendment of its Constitution to include 18 years as the minimum age of marriage regardless of gender and legal form with immediate effect. Thus, the proposed Marriages Bill is yet to be approved, indicating a lack of financial and political commitment to tackle the issue. The aim of this thesis is to examine the Zimbabwean laws regulating child marriages, including the legal impact of the UDHR on the issue; as well as to analyse and discuss the application of current Zimbabwean marriage law from a universalistic versus cultural relativistic perspective on child marriages and suggest improvements based on Zimbabwe’s social context. This thesis finds that a universalistic approach to address child marriages in Zimbabwe will not be sufficient to tackle the issue as it does not consider the cultural, religious, economic and political context of the nation. Instead, a more sustainable and locally-owned solution should complement the already adopted universalistic legal strategy. This would not only reduce the number of child marriages on paper but achieve behavioural change and therefore address the root causes and the negative consequences of child marriages.

Keywords: Zimbabwe; child marriages; marriage law; customary law; marriages bill; legal hierarchies; cultural relativism and universalism.

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Acknowledgement

I would like to take this opportunity and thank my supervisor Åsa Yttergren, Associate Professor at Umeå Centre for Gender Studies at Umeå University, who has been supporting and guiding me through this thesis. She provided me with clarity when I got lost in my own words and the encouragement I needed to complete this paper.

I also wish to thank the Global Vision International Charitable Trust and the team for giving me the opportunity to work in Zimbabwe and see and hear how ordinary Zimbabweans’ from across the country live their lives. It was an eye-opening experience, and without it, my thesis would look very different.

With that, I want to express my sincerest gratitude to all the communities and NGOs which I have had the privilege to meet and work with. The commitment that I have seen from passionate individuals; social and community development workers and lawyers in this field is astonishing; a special thank you to lawyer Tatenda Dzitiro for guiding me in the maze of marriage laws in Zimbabwe.

Finally, thank you to all the strong women and girls who shared their culture, religion, hopes and dreams as well as their everyday lives with me. Whilst they are not included in this thesis, I will not forget their stories.

- Tilda Christensson

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Abbreviations

NGO Non-Government Organisation UCLU Unsolicited Customary Law Union UDHR Universal Declaration of Human Rights

UN United Nations

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1 Background to Eliminating Child Marriages in Zimbabwe

Child marriages, also known as early marriages, is a practice where one or both parties are under the age of 18 when getting married. United Nations Children’s Fund estimates that at least 12 million girls get married before the age of 18 every year across the globe.¹ This practice is considered a violation against human rights; including children’s and women’s rights,² partially because of the western world’s perception of order. Early marriages result in a higher risk of school drop-outs; unintended, and unsafe pregnancies; increased health risks; population growth; lower lifetime earnings; economic disempowerment and overall gender inequality.³ To address these issues, many countries across the world are increasing their legal marriage limit to 18 as per the Universal Declaration of Human Rights (UDHR), which explicitly states in Article 16 that marriage of people under the age of 18 is a violation of human rights. This was a guideline that was recently implemented in Zimbabwe, a democratic republic in southern Africa with an estimated population of 14,4 million as of 2018.⁴

In 2019, Zimbabwe drafted and submitted a proposed Marriages Bill to the Parliament in response to the historic Constitutional Court ruling in 2016: Mudzuru and Tsopodzi vs The Ministry of Justice, Legal and Parliamentary Affairs Department and Ministry of Women’s Affairs, Gender and Community Development Department and the Attorney General of Zimbabwe.⁵ The court ruled in favour of the plaintiffs and resulted in the amendment of Section 78(1) of the Constitution to state that the minimum age of marriage is 18 for all; that the Marriage Act was thereby inconsistent with updated Section 78(1) of the Constitution and therefore considered void; and that no person can get married, or enter an unsolicited customary legal union (UCLU) or any other union, before the age of 18 years. The ruling therefore completely outlawed child marriages of any kind, for any purpose, for both genders, with immediate effect; a statement which the proposed Marriages Bill took into full consideration in its formation.⁶

1 United Nations Human Rights Commissioner. Child, early and forced marriage, including in humanitarian settings. 2020.

2 Universal Declaration of Human Rights 1948.

3 Sayi, Takudzwa S. and Sibana, Amson. Correlated of Child Marriage in Zimbabwe. Journal of Family Issues, Vol. 39, no. 8, 2018, p. 2367.

4 The Constitution of Zimbabwe Amendment (No.20) Act 2013, Chapter 1, Section 1 and World Bank.

Zimbabwe Data. 2020.

5 This case will from here onward be referred to as Const. Application No.79/14.

6 Const. Application No.79/14, p. 55. and Marriages Bill 2019, Part II, Section 3.

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8 1.1 Aim and Objectives

The aim of this thesis is to examine the Zimbabwean laws regulating child marriages, including the legal impact of the UDHR on the issue; as well as to analyse and discuss the application of current Zimbabwean marriage law from a universalistic versus cultural relativistic perspective on child marriages and suggest improvements based on Zimbabwe’s social context.⁷

The objectives of this research are:

1. What is the legal hierarchy in Zimbabwe and how is this impacted by the UDHR? What are the current Zimbabwean laws regulating child marriages?

2. What are the root causes⁸ of child marriages in Zimbabwe? And how can they be understood from a Zimbabwean perception of order with special regard to Article 16 – the right to marriage at full age and without force, Article 18 – the right to freedom of thought, conscience and religion and Article 27 – the right to participate in cultural life?

3. How can the legal application of child marriages be understood from a universalistic vs cultural relativistic perspective and what perspective is currently applied in Zimbabwe? If there are any issues with the current legal application, what perspective can be suggested based on the findings and Zimbabwe’s legal and social context?

1.2 Methods and Material

I select to analyse the issue of child marriages as it is not only a human rights violation on its own but also comes with serious consequences such as increased health risks; population growth; higher school drop-out rates and lower lifetime earnings for women and an overall negative impact of the national economy, issues which are just as important.⁹ Therefore, rather than seeing child marriages as the issue, this paper emphasises that it is not the child marriages in itself that is the problem. Instead, it argues that it is the root causes and the negative consequences of the attached behaviour which needs to be eliminated, as this is what is causing the harm. Due to the side-effects’

severity, it is not sufficient to simply examine the legal reform, but essential to investigate the root causes to get a holistic understanding of the issue.¹⁰

7 Social context in this case, and throughout the paper includes but is not limited to the nation’s economic, political, cultural, religious and historical circumstances and pre-conditions.

8 Root Causes in this case, and throughout the paper includes but are not limited to socio-economic and socio- demographic variables.

9 Sayi & Sibana 2018, pp. 2367-2368.

10 United Nations Population Fund. Child Marriage – Frequently Asked Question. 2020.

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9 The geographical focus of this paper is Zimbabwe. The decision behind this geographical region is based on the fact that Zimbabwe has one of the highest child marriages statistics in Africa with an estimate of 32% getting married before the age of 18.¹¹ In addition, Zimbabwe proves as an interesting case as the nation changed its minimum age of marriage to 18 years as of 2016 but is yet to approve the proposed Marriages Bill.¹²

The main theories used for this thesis are universalism and cultural relativism. This is due to the ongoing debate between the two ideological perspectives which sits on the opposite sides on the continuum concerning their perception of the need, benefit and risk of the application of UDHR in non-western countries.¹³ To complement the two extreme ideologies, I also include a middle ground theory known as translationism. I choose these theories to get an objective view of the UDHR to avoid imperialism and to represent both sides of the continuum.¹⁴ Discussions regarding the tension between universalism and cultural relativism are proven healthy and a way to understand the differences in local perspective and legal application.¹⁵

Universalism, cultural relativism and translationism are applied in this paper by examining the foundation of their respective ideologies and consider what representatives of the ideologies would think of the UDHR in general, and child marriages in particular. This is followed by a discussion of the criticism of the respective ideologies and the challenges of applying them as a strategy to eliminate child marriages in Zimbabwe. The theories are further used to analyse if the current Zimbabwean legal structure is adopting either of the perspectives regarding its application of the UDHR in general and the issue of child marriages in particular. Finally, the findings are used as a source of inspiration to potentially improve Zimbabwe’s current strategy to eliminate child marriages.

To meet the first objective and outline the legal hierarchy in Zimbabwe, the Zimbabwean law regulating child marriages and the UDHR’s impact, a black-letter approach is applied. This will

11 Sayi & Sibana 2018, p. 2379.

12 Sayi & Sibana 2018, p. 2372. and Marriages Bill 2019, Part II, Section 3.

13 Le, Nhina. Are Human Rights Universal or Culturally Relative. Peace Review: A Journal of Social Justice, Vol. 28, 2016, p. 203. and Dahre, Ulf J. Searching for a middle ground: anthropologists and the debate on the universalism and the cultural relativism of human rights. The International Journal of Human Rights, Vol. 21, no. 5, 2017, p. 612.

14 Dahre 2017, p. 613.

15 Le 2016, p. 203.

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10 focus solely on the law without considering the social context where the law operates.¹⁶ This is to ensure that the law is examined and understood before contextualising it with marriage laws and Zimbabwe’s strategy to regulate the minimum age of marriage.

I am examining Zimbabwe’s legal hierarchy to get an understanding of how the legal system functions in Zimbabwe, including how international conventions and treaties are governed and applied. Zimbabwe has a dual legal system that affects the nation’s marriage laws, and consequently its minimum legal marriage age. One of the methodological issues with this approach is that Zimbabwe’s Constitution does not provide a clear overview of its legal hierarchy and its dual legal system. To address this, the paper relies on secondary sources to get a holistic perspective of the nation’s legal system. Thus, I examine the text of Zimbabwe’s Constitution to understand how international conventions and treaties are governed and applied in Zimbabwean law, including the UDHR, and how it fits within Zimbabwe’s legal hierarchy.

The paper is then scrutinising what the legal minimum age limit was for all forms of marriages and unions in Zimbabwe prior to 2016 and how they were affected by Const. Application No.79/14 and the proposed Marriages Bill. I am referring to the Marriage Act and the Customary Marriage Act to understand their regulation of minimum age with the assistance of the Interpretation Act and the Customary Law and Local Court Act which clarifies which cases, and whom, are governed by the respective marriage acts.¹⁷ I am utilising secondary research to examine and understand UCLUs, as the union is not controlled by an Act. In addition, the Const. Application No.79/14 case is examined as it created legal reform regarding the inclusion of a minimum age of marriage in Zimbabwe’s Constitution; changed legislation; and resulted in the proposed Marriages Bill. I read and analyse the proposed Marriages Bill to see how the above legislations and regulations concerning minimum age have and are proposed to change. The proposed Marriages Bill from 2019 is used as this is the latest draft of the suggested amendments of the various marriage acts.

This method and material are used to bring an understanding of the legal pre-condition which Zimbabwe must work with to eliminate child marriages, regardless of its social context.

16 Gawas, Vijay M. Doctrinal legal research method a guiding principle in reforming the law and legal system towards the research development. International Journal of Law, Vol. 3, no. 5, 2017, pp. 128-129.

17 Customary Marriage Act [Chapter 5:07]. and Marriage Act [Chapter 5:11], Part III, Section 20-23. and Customary Law and Local Courts Act [Chapter 7:05]. and Interpretation Act [Chapter 1:01], Part II, Section 3.

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11 To fulfil the second objective, I apply a method of perception of order when discussing the root causes of child marriages in Zimbabwe. Perception of order argues that it is the environmental context of culture, geography, history, economy and other social elements that shape what a society view as order as well as disorder. It questions the source of legal decisions and whose perception of order the law is aiming to maintain. It is this perception of order which consequently influence decision-makers and legislation.¹⁸ I take each of the identified root causes and consider Zimbabwe’s social context, hence Zimbabwe’s perception of order, to understand and justify why the root causes exist, and how that has influenced and shaped Zimbabwe’s legislation regarding child marriages. This involves the process of analysing if some of the UDHR’s articles are prioritised over others in relation to the issue of child marriages, and potentially how such prioritisation can be recognised.

I use this method to avoid imperialism and the assumption that the perception of order is the same everywhere,¹⁹ including the prioritisation of individual rights over collective rights in the UDHR.

Zimbabwe’s understanding of order is different from the west as it has a different social context.

That context must be taken into consideration to understand the reasons behind child marriages and the thinking process behind Zimbabwe’s legal strategy to tackle the issue.

I use the material of Mansell (1999) A Critical Introduction to Law to get an understanding of the perception of order method. This text is chosen as it provides a good introduction to the law whilst remaining critical. In addition, journal articles and international institutions’ publications within the field of social science are utilised to understand the root causes of child marriages in Zimbabwe, and how they correlate. Thus, a methodological problem is that there is limited research on the root causes of child marriages specific to Zimbabwe. I, therefore, need to rely on one journal article as my main reference.²⁰ Whilst the article is peer-reviewed, I remain critical of its writing and use supporting articles specific for Zimbabwe when possible. In addition, the proposed Marriages Bill is utilised as it provides an updated, yet holistic overview of the different laws and regulations on the issue which must be considered when looking at the root causes to see if the Marriages Bill addresses them. Finally, the UDHR is used as a source of material to identify and discuss potential prioritisation of human rights when researching and implementing strategies to ensure that human rights are met. The UDHR is chosen as it is the most recognised foundation of rights internationally.

18 Mansell, Wade. A Critical Introduction to Law. 2nd edn, Routledge, London, 1999, pp. 13-14.

19 Mansell 1999, pp. 13-14.

20 Sayi & Sibana 2018.

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12 Three main articles are selected from the UDHR to form part of the discussion as they are the most relevant to the case of child marriages, including but not limited to: Article 16 – the right to marriage at full age and without force; Article 18 – the right to freedom of thought, conscience and religion; and Article 27 – the right to participate in cultural life.

The method for the third objective is to apply the universalistic and cultural relativistic ideologies and lenses when examining Zimbabwe’s child marriage regulations and its social context. The application is achieved by thinking like a representative of each of the perspectives and examine their standpoint on how they would tackle the issue of child marriages. This continues by examining criticism of the identified ideologies. This includes consideration of the potential challenges of applying the respective perspectives strategies in Zimbabwe’s social context. Based on this examination, potential suggestions are provided.

This method is chosen to present different perspectives and interpretations of mitigation strategies and acknowledge their respective weaknesses to be able to remain objective and to avoid assumptions and imperialistic thinking. In addition, this method is used to provide a foundation to be able to potentially suggest improvements of which perspective would fit Zimbabwe’s social context.

The material I use for this section includes international institutions’ publications and journal articles from the field of social science which discuss cultural relativism and universalism. The journal articles which focus on the issues of human rights, in particular cultural rights affecting girls and women in Zimbabwe and Africa, are prioritised. This is to ensure that the social context is considered in legislation to achieve change on the ground, and not just in theory.²¹ In addition, references are made to the UDHR, Zimbabwe’s Constitution and previously mentioned Marriage Acts, including Const. Application No.79/14. These legal materials are utilised as these are the pre- conditions and strategies which are being considered and evaluated.

As a method, I include my analytical elements throughout this paper rather than having a separate discussion and analysis section at the end. This is to ensure that the facts are close by in the text when discussing and analysing it.

21 United Nations Population Fund 2020.

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13 As for material, in addition to the above-mentioned sources, I include extracts from my previous research on the topics of perception of order, cultural practices, child marriages, cultural relativism and universalism to utilise previous facts and my developed arguments.

As for ethical consideration, I am reflexive throughout this paper. Reflexivity is a social research process that involves the recognition of the social and political elements which influence the researcher in the questions which are posed, the articles and publications which are read and included, as well as excluded in this paper and how the analysis is framed and applied.²²

1.3 Disposition

Section 1 of this paper introduce the issue of child marriages globally and how Zimbabwe has recently tackled the issue through the proposed Marriages Bill; the aims and objectives of this thesis and finally the disposition of this paper.

Section 2 of this paper outline and examine an overview of the different theories which are used throughout this paper. The first two theories are universalism and cultural relativism, two opposing ideologies. Thus, a middle ground can be found between the two theories, a theory known as translationism. Translationism is the third and final theory presented in this section.

This theoretical overview is followed by section 3 which provide an overview of the legal context in Zimbabwe which the various marriage laws and legal strategies to eliminate child marriages must obey. Section 3 therefore examine the legal hierarchy in Zimbabwe including an analysis of how international treasuries and conventions, such as the UDHR, form part of Zimbabwe’s legal hierarchy. This is followed by an overview of Zimbabwe’s dual legal system. Section 3 is included to understand what the legal pre-conditions are for using the law to regulate the minimum age of marriage in Zimbabwe.

Once the reader has a general overview of the legal framework and its application of UDHR in Zimbabwe, section 4 goes one step further to examine and analyse how Zimbabwe utilise the legal pre-conditions as outlined in section 3 to govern the nation’s marriage laws regarding the minimum

22 Guillemin, Marilys & Gillam, Lynn. Ethics, Reflexivity, and “Ethically Important Moments” in Research.

Quality Inquiry, Vol. 10, no. 2, 2004, pp. 274-275.

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14 age of marriage. This will include a summary of the Zimbabwean Marriage Act; the Customary Marriages Act as well as the informal UCLUs in relation to child marriages. This will be followed by additional information on the proposed Marriages Bill and its origin concerning the minimum age of marriage to understand and analyse how Zimbabwe changed its legal strategy. This section aims to understand how Zimbabwe has legally tried to tackle the issue of child marriages.

Section 5 then provides insight into the magnitude of child marriages in Zimbabwe prior to the legal reform which was presented in the previous section. This is followed by examining different root causes of child marriages in Zimbabwe and trying to understand them from Zimbabwe’s perception of order. This section ends with a conclusion of the root causes, which includes a discussion of the conflict between Article 16 – the right to not be forced to marriage and Article 18 – the right to freedom of thought, conscience and religion and Article 27 – the right to participate in cultural practices in the UDHR. This is to examine the social context which Zimbabwe must consider in its strategy to eliminate child marriages. Without an understanding of the root causes, it is impossible to implement effective legal and social strategies to tackle the issue.

This is followed by section 6 which presents what the perspectives of universalism, cultural relativism and those seeking a middle ground, as introduced in section 2, think of the issue of child marriages. This includes an overview as well as criticism of each of the perspectives and how representatives of the different ideologies would tackle the issue of child marriages based on Zimbabwe’s legal and social context presented in sections 3, 4 and 5. The section continues by comparing the findings in this section with Zimbabwe’s legal strategy presented in section 4 and 5 to determine which of the different perspectives Zimbabwe applies in relation to the UDHR in general, and child marriages in particular. Finally, the section discusses potential challenges with Zimbabwe’s chosen legal strategy from a practical point of view by considering the social context of Zimbabwe. This is before I suggest complementary mitigation strategies based on the previous findings of the above-mentioned perspectives.

Finally, section 7 summarises and concludes this paper by highlighting key findings prior to suggesting further research.

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2 Theories

2.1 Universalism versus Cultural Relativism

For decades, there has been a conflict between the theories of universalism and cultural relativism, two ideologies which sit on opposite sides of the continuum in relation to their perception of the UDHR which was announced in 1948.²³

2.1.1 Universalism

Universalism is an ideology and perspective which believes that there is only one truth and that all people have the same rights regardless of ones’ gender, race, culture, nationality, religion, age and sexuality.²⁴ Human rights are built on the idea of universalism and are internationally agreed-upon values, standards, and rules, which aim to regulate each state and its citizens.²⁵ Whilst human rights are agreed upon internationally, it is clear that it is the western values of individualism which has shaped human rights, allowing everyone to experience the same positive and negative rights, regardless of background and circumstances.²⁶ Universalists mean that individuals cannot be punished based on the country and culture which they were born into and that everyone should be treated equally, regardless of whether a practice or behaviour is considered a cultural norm or not.

Based on this principle, universalists claim that governments are obligated to provide a system that ensures that all its citizens have access to human rights and to protect those rights and its people equally.²⁷

2.1.2 Cultural Relativism

On the contrary, cultural relativism is an anthropological ideology and perspective which argues that there is not one truth or culture which is superior to another when analysing ethics, laws, politics, religions or any cultural practice.²⁸ Cultural relativists believe that all cultures are equal and that there is no universal or correct way of life; instead, everything is relative to the cultural setting and context.²⁹ In turn, cultural relativists argue that cultural change cannot, and should not

23 Reichert, Elisabeth. Human Rights: An examination of universalism and cultural relativism. Journal of Comparative Social Welfare, Vol. 22, no. 1, 2006, p. 25.

24 Danial, Sandra. Cultural Relativism vs. Universalism: Female Genital Mutilation, Pragmatic Remedies. The Journal of Historical Studies, Vol. 2, no. 1, 2013, p. 3. and Reichert 2006, pp. 26-27.

25 Reichert 2006, pp. 26-27.

26 Reichert 2006, p. 25. and Ifediora, John. Universal Human Rights and Cultural Relativism: A Marriage of Inconvenience’, Policy Perspective, Vol. 3, no. 1, 2004, p. 2.

27 Reichert 2006, pp. 26-27, 29.

28 Reichert 2006, pp. 28-29.

29 Danial 2013, p. 2. and Reichert 2006, pp. 28-29.

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16 be forced on to anyone which is the aim of human rights. Rather, cultural relativists believe that cultural changes take place organically from within the culture through local activists; as a consequence of generational shifts; increased access to information and education; and not from external, foreign lawmakers, non-government organisations (NGOs), religious preaching or tourists.³⁰ There are several arguments presented by cultural relativist, thus, all stem from the belief that by ignoring and outlawing specific cultures, individuals lose their cultural identity due to pressure and the egalitarian way of western cultures similar to colonial times.³¹

2.2 Translationism

Universalism and cultural relativism are extreme ideologies, and the debate can therefore be understood as a continuum where the two perspectives are representing the end of each side.³² Thus, as people may not be adamant in their belief and able to agree completely with one perspective, on all topics, at all times; people often find themselves somewhere in the middle, leaning more or less to one side depending on the topic of debate. Therefore, to represent those which are in between on the continuum and to address the continued debate between cultural relativism and universalism, researchers searched for a middle ground as both theories and perspectives are understood and valued.³³

Translationism was one of the first presented theories which focus on finding a compromise between universalism and cultural relativism by applying local context to human rights, hence why it was selected as a theory for this paper. Translationism involves translating how local people apply and perceive human rights in their day-to-day lives, making the concept of Human Rights real, and bringing it to a grassroots level. Translationism makes human rights less abstract and focuses on locals’ interpretations and applications of the law. Translationists believe that this is when human rights come alive and matter. It further gives opportunities for local, marginalised and indigenous groups to have their impact and interpretation of the human rights.³⁴ I believe this makes the human rights culturally acceptable whilst creating greater ownership for the locals to tackle the issues, hence making the human rights more likely to be followed.

30 Dahre 2017, pp. 614-616.

31 Reichert 2006, pp. 28-29.

32 Dahre 2017, p. 612.

33 Dahre 2017, p. 618.

34 Dahre 2017, pp. 619-620.

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3 Zimbabwean Legal System

3.1 Legal Hierarchies

All nations have a set of laws that govern their social order. The laws belong to different levels to separate and gather them per superiority.³⁵ Consequently, some laws are higher prioritised and carry greater weight than others in the court of law. The authority of the law, and how that authority is ranked in relation to each other is what is referred to as legal hierarchies. Legal hierarchies are what guides which specific law will get authority in case of conflict between different laws. Whilst each country has a different legal hierarchy, a common thread of the basic elements within the hierarchy can be identified across most countries.³⁶

3.2 Constitution and Ordinary Acts in Zimbabwe

Although Zimbabwe does not follow the standardised legal hierarchy, Zimbabwe does have a Constitution which is the highest in the hierarchy of law and states that it is only Acts of Parliament which can make law. The parliament can in turn delegate law-making to the president, ministers and other local authorities. Any law which is inconsistent with the Constitution of Zimbabwe should be deemed invalid, an element which is essential when analysing the Zimbabwean legal hierarchy’s relationship to child marriages.³⁷ Even if a law passes by the president, or the parliament, and officially becomes a piece of legislation, it will be considered void if it does not match the Constitution.³⁸

Below the Constitution in the legal hierarchy in Zimbabwe is the ordinary Acts of Parliament.

Whilst the Constitution of Zimbabwe is the supreme law, it is still an Act of Parliament. The Acts of Parliament is followed by the statutory instruments. For the approval of a statutory instrument, it must pass the constitutionality test, that the Act is consistent with the Constitution, and the ultra vires test. The ultra vires test is to ensure that the new statutory instrument is consistent with the relevant Act of Parliament, “the enabling Act” or “parent Act”. If the statutory instrument is consistent, it is considered intra vires. If the statutory instrument passes both tests, it will be at the same level as an Act of Parliament. An Act of Parliament can only come to an end if it is proven to be inconsistent with the Constitution, or if the Act was designed to only be active for a specific

35 Clegg, Michael. et al. The hierarchy of laws – Understanding and Implementing the Legal Framework that Govern Elections. International Foundation for Electoral Systems. 2016, p. 1.

36 Clegg et al. 2016, pp. 1-2.

37 Madhuko, Lovemore. An Introduction to Zimbabwean Law, Weaver Publisher, 2010. Ebook, pp. 13-14.

38 Madhuko 2010, p. 14.

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18 period.³⁹ Knowledge and potential changes to the Constitution must be shared with the public, a responsibility that falls on the State.⁴⁰

3.3 How International Treaties and Conventions become valid

The UDHR is a treaty developed by the United Nations General Assembly in 1948 to present human rights through 30 articles. These articles are to provide a minimum standard of rights for all people and all nations.⁴¹ All human rights should have the same priority and be implemented simultaneously; however, that is not the case in reality, either due to scarce resources or active decisions, both relevant factors in the case of Zimbabwe.⁴² However, the UDHR is not an automatically internationally legally binding document, even though Zimbabwe ratified the document and is a member of the United Nations General Assembly.⁴³ In addition to having ratified the UDHR, Zimbabwe has currently ratified the:

“Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Discrimination against Women; the African Charter on the Rights and Welfare of the Child;

and the African Charter on Human and Peoples’ Rights”,⁴⁴ which are all against the practice of child marriages.

As mentioned, even when Zimbabwe ratifies international treaties and conventions it does not guarantee automatic adoption due to the limitation of international law cited in the Zimbabwean Constitution. The Zimbabwean Constitution states that any convention, treaty or agreement signed, concluded or executed by the president, or on behalf of the president is:

a) subject to the approval of the parliament and

b) shall not form part of Zimbabwean law unless it has been incorporated into the law by or under an Act of Parliament.

39 Madhuko 2010, pp. 14-15.

40 Dziva, Cowen. and Mazambani, Delis. The Constitutional Court Ruling against Child Marriages in Zimbabwe:

A landmark Decision for Advancing the Rights of the Girl Child. Eastern Africa Social Science Research Review, Vol. 22, no. 1, 2017, p. 85.

41 Universal Declaration of Human Rights 1948.

42 Quintavalla, Alberto. and Heine, Klaus. Priorities and human rights. The International Journal of Human Rights, Vol.23, no. 4, 2019, pp. 679-680.

43 United Nations. Member States. 2020.

44 Human Rights Watch. Zimbabwe: Scourge of Child Marriage Set 18 as Minimum Age; Adopt National Action Plan. 2015.

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19 This means that regardless of what has been agreed and signed in the international arena, it is not enforceable by law in Zimbabwe unless it has actively been incorporated into an Act of Parliament.⁴⁵

As treaties and international conventions do not form an automatic part of national law, it can only enter the Act of Parliament in two separate ways. Alternative one is that the entire legal text is adopted by an Act of Parliament where the Act is explicitly putting the original text in the schedule.⁴⁶ If this is the case, the treaties articles and documentation can be used in the interpretation of the law. A Zimbabwean example of this is the customary international law which is the only international law which text was originally adopted into national law.⁴⁷ The customary international law is erga omnes, which means, that it applies to everyone and fully incorporated into national law unless there is a conflict with General Law.⁴⁸ The second alternative for international law to have authority in Zimbabwe is for the national law to incorporate the treaty or convention in an Act of Parliament through its own interpretation and legal text.⁴⁹ In this case, the original international text can only be used as a source of interpretation if the national legislative text is vague and ambiguous.⁵⁰ An example of this can be found in the Zimbabwean Constitution’s Chapter 4 Declaration of Rights where the text has been interpreted as a national alternative application of the UDHR.⁵¹ As Chapter 4 is part of the Constitution, it provides the legal ground for all Acts of Parliament. This is why all acts which control marriage must comply with the rights outlined in Chapter 4 of Zimbabwe’s Constitution rather than the UDHR; as the UDHR is not legally binding in Zimbabwe.⁵² However, whilst the UDHR and international treaties and conventions which Zimbabwe has ratified are not legally binding, Zimbabwe’s Constitution states that a court, tribunal, forum and body “must take into account international law and all treaties and conventions to which Zimbabwe is a party” when interpreting Chapter 4 of the Constitution.⁵³ Whilst take into account is vague, it does indicate that the UDHR should influence decision making.

45 The Constitution of Zimbabwe 2013, Chapter 18, Part 2, Section 327.

46 Madhuko 2010, p. 177.

47 Madhuko 2010, p. 40. and Saki, Otto. and Chiware, Tatenda. The Law in Zimbabwe. 2007.

48 Saki & Chiware 2007. and Madhuko 2010, p. 40.

49 Madhuko 2010, pp. 177-178 and Saki & Chiware 2007.

50 Madhuko 2010, pp. 177-178.

51 The Constitution of Zimbabwe 2013, Chapter 4.

52 The Constitution of Zimbabwe 2013, Chapter 18, Part 2, Section 327.

53 The Constitution of Zimbabwe 2013, Chapter 4, Part 1, Section 46 – 1c.

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20 3.4 A Dual Legal System

The dual legal system in Zimbabwe consists of General law, which includes statues, case and common law and general customs, and parallel to General law is the African Customary Law which includes another form of customs. In practice, this means that certain custom cases can be applied to two separate legal systems, with two separate legal consequences.⁵⁴

3.4.1 General Law System

The General Law system is one out of the two legal systems which form Zimbabwean law and applies to everyone. Case law or Precedent refers to previous decisions made by the supreme court, decisions that will be applied to similar cases in the future. Zimbabwean case law is based on the decisions made in South African law, English law and Roman-Dutch law. In addition, there are common laws, laws which are often unwritten.⁵⁵ These are laws that have not been made active through the making of law but rather based on the collection of principles made by judges in previous court cases as well as rules and principles which originate from Roman-Dutch law. The details surrounding the Roman-Dutch law is however beyond the scope of this paper. Zimbabwean courts do not need to follow decisions made by foreign courts, however, due to the history and common law in Zimbabwe, decisions within higher courts in South Africa, as well as England, do influence decisions.⁵⁶ Finally, customs are rules which become binding over time based on communities’ behaviour. Whilst customs are not written down, they can be viewed as legally binding as community members view the custom as a law. In Zimbabwe, there are two forms of custom which is what creates the dual legal system;

• general custom which can regulate international trade law; commercial law and law of banking. The general custom is legally binding if the custom is reasonable, long-binding, uniformly observed and certain.

• African Customary Law is a set of laws that form the second part of the dual legal system and regulates the life of indigenous Africans.⁵⁷

54 Madhuko 2010, pp. 25-26.

55 Saki & Chiware 2007.

56 Madhuko 2010, p. 15-17.

57 Madhuko 2010, p. 25.

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21 3.4.2 African Customary Law System

As with general custom, African Customary Law is rules which are binding over time, based on the communities’ behaviour and expectations built over time.⁵⁸ The difference is that only Africans, as defined by the Interpretation Act:

“(a) any member of the aboriginal tribes or races of Africa and the islands adjacent thereto, including Madagascar and Zanzibar or (b) any person who has the blood of such tribes or races and who lives as a member of an aboriginal native community”⁵⁹

are covered by the African Customary Law system as well as the General law system whilst non- Africans, according to the Interpretation Act, are only covered by the General law system.⁶⁰

It is the Customary Law and Local Courts Act which controls which cases should be applied to which legal system. Thus, the Customary Law and Local Courts Act is still not straight forward.

According to this Act, Customary Law should be applied when: the parties have expressly agreed to do so; surrounding circumstances make it appear that the parties have an agreement and when the surrounding circumstances make it appear to be the proper thing to do.⁶¹ In addition, the Customary Law and Local Courts Act states that Customary Law can be applied to civil cases if both parties genuinely want to apply the African Customary Law system over the General Law system; if the incident took place in such area or if the defendant resides in such area.⁶² However, even if both parties agree to the African Customary Law system application, the court has the right to disregard the parties’ wishes if the outcome would be considered to be unjust. In such cases, the application of the General Law system will be forced. When the parties cannot agree on the law system, the courts can apply the African Customary Law system if it is considered ‘just and proper’.

Whether it is considered just or proper is based on the parties’ lifestyle and their knowledge of African Customary Law versus General Law; the specifics of the case, and closeness to the two laws for the case in question.⁶³

58 Madhuko 2010, p. 25.

59 Interpretation Act, Part II, Section 3.

60 Madhuko 2010, p. 26.

61 Customary Law and Local Courts Act, Part II, Section 3.

62 Customary Law and Local Courts Act, Part IV, Section 15.

63 Customary Law and Local Courts Act, Part II, Section 3.

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22

4 Marriage Laws and Minimum Age of Marriage in Zimbabwe

4.1 Marriage Act

Civil marriages fall under General Law and are governed by the Marriage Act which previously had 16 years for girls and 18 years for boys as the minimum legal age of marriage.⁶⁴ However, after the ruling of Const. Application No.79/14, the new Marriage Act applied the minimum age of marriage to 18 years regardless of gender with immediate effect. This made the Marriage Act gender-equal as the case was built on the idea that the Marriage Act was discriminatory hence a breach against the Constitution.⁶⁵ Thus, the new Marriage Act is yet to be amended if, and when, the proposed Marriages Bill has been approved.⁶⁶

4.2 Customary Marriage Act

Customary marriage means “marriages between Africans” and falls under the African Customary Law and is governed by the Customary Marriage Act.⁶⁷ The Customary Marriage Act did not use to have any minimum legal age of marriage prior to the ruling of Const. Application No.79/14 in 2016. As previously discussed, Const. Application No.79/14 stated that any marriage involving children would be considered illegal, void and unconstitutional including customary marriages.

This was after the amended of the Constitution which explicitly stated that 18 years was the minimum legal age for marriage, regardless of form and justification.⁶⁸ Thus, as with the Marriage Act, the Customary Marriage Act is yet to be amended in writing.⁶⁹

4.3 Unsolicited Customary Law Unions

UCLUs are not considered marriages, but a union between two parties. Thus, UCLUs may function as a marriage for customary purposes even though they are not covered under the Marriage Act, nor the Customary Marriage Act. UCLUs are however recognised under African Customary Law due to Zimbabwe’s dual legal system but are still not considered a marriage.⁷⁰ UCLUs are only valid for the legal “purpose of guardianship, custody, maintenance of succession, of children born

64 Marriage Act, Part III, Section 20-23.

65 Const. Application No.79/14, p. 55.

66 Marriage Act, Part III, Section 20-23.

67 Customary Marriages Act.

69 Customary Marriage Act. and Marriage Act. Part III, Section 20-23.

70 Gonese-Manjonjo, Tambudzai. The recognition of customary marriages in Zimbabwe and the proposed Marriages Bill. Southern Africa Litigation Centre, No. 5, 2019, pp. 3 and 6.

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23 outside of marriages”,⁷¹ and therefore comparable to civil partnerships. A UCLU can always become a Civil Marriage or a registered Customary Marriage by following their respective procedures.⁷²

UCLUs are however highly relevant for the issue of child marriages as it is the most common form of child marriages in Zimbabwe,⁷³ even though the correct terminology would be a child union and not a child marriage. Consequently, the court ruling in Const. Application No.79/14 and the proposed Marriages Bill states that UCLUs are subject to the new minimum legal age of marriage regulations.⁷⁴ I believe that this is essential as if UCLUs were not included in the legal reform, UCLUs would continue to be a loophole for parents and religious leaders to legally marry off girls into unions.

Thus, whilst the legal loophole may close with the legal reform, there is still a risk that unhealthy, unregistered unions will continue between children and adults. As these unions are originally undocumented, they are harder to regulate, control and measure,⁷⁵ indicating a flaw in Zimbabwe’s newly proposed legislation. Based on this, I argue that unions and marriages are simply terms and legal forms that indeed can be restricted and outlawed but that does not result in social solutions which tackle the root causes to the marriage and union which are to be examined and discussed in section 5.

4.4 The Proposed Marriages Bill and its Origin

When initially examining Zimbabwe’s legislation it is easy to get confused due to its dual legal system as there are exceptions that apply depending on peoples’ circumstances and origin. The complexity has carried on from the dual legal system to Zimbabwe’s marriage laws as there are several different Acts governing the practice.⁷⁶

However, as this paper has highlighted, Const. Application No.79/14 ruled on the 20^th of January 2016 for the amendment and inclusion of minimum legal age for marriage in Zimbabwe’s Constitution. With that decision, the Marriage Act and Customary Marriage Act were immediately

71 Gonese-Manjonjo 2019, p. 5.

72 Gonese-Manjonjo 2019, p. 2.

73 Human Rights Watch 2015.

74 Marriages Bill 2019, Part II, Section 3.

76 Marriage Act, Part III, Section 20-23. and Const. Application No.79/14, p. 55.

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24 made void as they did no longer comply with the new Constitution.⁷⁷ Consequently, a Marriages Bill was proposed to rectify the issue and replace the Marriage Act and the Customary Marriage Act and create one new combined Marriage Act.⁷⁸ According to the proposed Marriages Bill, UCLUs will continue to be invalid and not be considered a registered marriage. However, no one under the age of 18 will be legally allowed to commit to an unsolicited union.⁷⁹ Therefore, all child marriages, regardless of gender, form, legal status and justification are considered illegal with immediate effect.⁸⁰

Whilst the decision made in court came as a surprise after the arguments and justifications for the Constitution were presented by the defendants, the call for legal reform to eliminate child marriages in Zimbabwe has been a long-standing discussion. There have been complaints that Zimbabwe is not honouring the Convention on the Rights of the Child nor the Convention of the Elimination of All forms of Discrimination Against Women which both address the issues of child marriages.

Zimbabwe has further been criticised for not complying with the African Charter on the Rights and Welfare of the Child, Article 21 which argues that governments should do their part to protect children from culturally harmful practices, including child marriages.⁸¹ In 2015, Zimbabwe joined in the commemoration of the African child, with the theme of ending child marriages; and was asked by Human Rights Watch to take the lead and amend its legislation to prevent child marriages in Zimbabwe.⁸² These were all events that led up to the historical Const. Application No.79/14 case being filed at the end of 2015. The court ruling of the case in 2016 was followed by the Southern African Development Community creating a legal model for Zimbabwe to follow to end child marriages through legislative reform.⁸³

Consequently, the proposed Marriages Bill was formed and complies with the updated Constitution and highlights several different protection measures. In relation to minimum age, the proposed Marriages Bill is gender-equal as per the Constitution’s requirement as it has the same minimum age for marriage for boys and girls, and therefore recognised the rights of women, youths and children.⁸⁴ Section 26 of the Constitution – Marriage, is the section which the proposed Marriages

78 Marriage Bill 2019, Part II, Clause 3.

79 Marriage Bill 2019, Part II, Clause 3 and Gonese-Manjonjo 2019, p. 2.

81 Dziva & Mazambani 2017, pp. 74-75.

82 Human Rights Watch 2015.

83 Dziva & Mazambani 2017, p. 81.

84 Marriage Bill 2019, Part II, Clause 3.

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25 Bill predominantly focuses on. This explicitly states that children are not pledged in marriage, which is complemented with Section 81 which confirms that a child is a person under the age of 18.⁸⁵ In addition, the proposed Marriages Bill recognises that no person should be forced to marry and that the best interest of the child is paramount which further includes the protection of children from sexual exploitation and abuse.⁸⁶ This is the legal framework as well as the legal strategy that any complementary strategies to eliminate child marriages must take into consideration.

5 Root Causes to Child Marriages in Zimbabwe

In 2015, the most recent data on child marriages in Zimbabwe was collected. This data indicated that 32% of girls get married before the age of 18.⁸⁷ This is above the African average of 30%, a continent that has represents 30 out of the 41 countries with the highest number of child marriages in the world.⁸⁸ As the reasons why children get married varies across the world, it is essential to know the root causes in Zimbabwe to be able to implement suitable legal and social strategies to end the practice.⁸⁹

5.1 Poverty

Zimbabwe used to be a prosperous middle-income nation before the country experienced a 50%

drop in the gross domestic product between 2007-2008 and the Zimbabwean dollar lost 99.9% of its value, forcing people into poverty and migration. This caused an economic and political crisis that is still affecting the nation today. Poverty is one of the leading causes of continued child marriage practices as families are inclined to marry off daughters to reduce the economic burden for households and no longer be responsible for payment of food, school fees and health care. In addition, families earn a one-time income through lobola when a daughter gets married. Lobola is a tradition in customary marriages and is deeply rooted in the culture where the future husband must pay an agreed-upon price to the future wives’ family based on the perceived value of the future bride.⁹⁰

85 Marriage Bill 2019, Part II, Clause 3. and The Constitution of Zimbabwe 2013, Chapter 2, Section 26 and Chapter 4, Part 3, Section 81.

86 Marriage Bill 2019, Part II, Clause 3. and The Constitution of Zimbabwe 2013, Chapter 2, Section 19 and Chapter 4, Part 3, Section 81.

87 Sayi & Sibana 2018, p. 2379.

88 Sayi & Sibana 2018, p. 2368.

89 For a summary of the statistics of child marriages demographic in Zimbabwe, refer to Appendix 1.

90 Sayi & Sibana 2018, pp. 2369-2371.

Universalism versus Cultural Relativism: A Study of the Zimbabwean Laws Regulating Child Marriages