Child marriages, which are generally arranged marriages involving younger girls barely out of primary school and older men who are prepared to pay a respectable deposit on lobola, are an unmitigated evil that, regrettably, tend to have been accepted in some communities and families.
The Constitution makes it clear that marriage requires the active consent of two adults, with marriage banned for those under 18.
This is not some imposed basic law. Before it came into force, drafts underwent a long process of consultation and when it came to the section on marriage, society was fairly hard-line, demanding that marriages for people under 18 had to be banned and at the same time banning same-sex marriages.
Before this Constitutional change, people aged 16 and 17 could get married, if they had the consent of their parents or guardians, a provision that made people assume parents could go further and even arrange the marriage, regardless of the feelings of the couple involved.
Parliament is now busy cleaning up the Guardianship of Minors Act, and among other changes making it clear that parents cannot approve or disapprove of a marriage. As has been carefully explained, if only legal adults can marry, then so long as they meet the other conditions of marriage all that is required is their consent.
No one else needs to be involved or is allowed to be involved.
At the same time, the police are starting to move against those involved in under age marriages. The recent death of a 15-year-old illegally married girl giving birth has helped trigger a demand for a far more active role by those responsible for enforcing the criminal law.
The “husband” of that 15-year-old is already facing almost certain conviction on charges of having sexual relations with a girl under the age of consent, and the ambiguity in the criminal law over whether that age is 16 or 18 is not a factor in this case since she was 14 when she fell pregnant. He will also face charges of rape, which may or may not succeed.
The sentencing for under-age sexual relations can vary dramatically, from very modest community service when a couple in their mid-teens get carried away and with no suggestion of pressure or inducement, up to quite long jail terms where it is a girl aged a little over 12 seduced by a person in authority.
If the girl is under 12, it is legally pure rape, and every rapist goes to jail. There is not a lot of legal precedent where a marriage, however illegal under the law, is purported but in our opinion the courts need to be looking at jail terms.
Presumably in this case leave to appeal, at least against sentence, will be granted so that a couple of High Court judges can be involved in the review.
So far, the parents of the girl face charges of obstructing the course of justice for attempting to mislead the police over the deceased girl’s age, but we think more serious charges can be considered,
In rape cases, anyone who arranges or abets a rape can be charged with rape as well, and arranging a marriage for an under-age seems by the same reasoning to involve the parents in the crime committed by the “husband”.
A sign of society’s growing activism in this sort of matter has arisen in a number of chiefly courts.
Chiefs are now starting to use customary civil law to express their total disapproval of the practice on the basis that under-age marriages are not just illegal but are also contrary to customary law, which Is now once again a living legal system.
Chief Masembura in Bindura District has been particularly active as such cases are called to his attention and once he has been satisfied that a child marriage has taken place, he has been imposing penalties of two head of cattle and two goats.
This is regardless of what might also take place under criminal law.
It is not so much the level of the penalty that has caused a massive reduction in the practice in his area of jurisdiction, although it is a high penalty, but the fact that the central custodian of traditional law in that area has made it clear that this is totally unacceptable and is not something he will tolerate.
It even brings into doubt whether such a marriage can be valid in any way, even as an unregistered customary union.
When you think about it is fairly easy to see that any application of custom requires at least the acquiescence of the chiefs, and preferably their approval, and when the chiefs make it clear that they are totally opposed it ensures that the whole community knows that contrary theories of what the custom might be are wrong.
Chief Masembura, in an interview, based his judgments against those involved in under-age marriages not just on his interpretation of customary law but also on his duty as a traditional leader to protect everyone under his jurisdiction, and that duty embraced the need to protect young girls.
He, and other chiefs of the same mind, have been fully backed by Council of Chiefs president Senator Chief Fortune Charumbira, so anyone trying to argue that they live under a maverick chief faces a solid brick wall. Some criticise customary law as being unduly conservative, but when customary law is treated as a living legal system, built on the base of solid custom but with judgments refined to fit the growing needs of society, then it becomes a solid defender of rights and duties.
This growing appreciation by chiefs of the need to stamp out the menace of child marriages by applying customary law more actively and precisely, needs to be supported by their communities, with people passing on the required information that helps a chief clamp down on each case, or even better potential case, since it would be better if the chief was able to intervene while the marriage was being arranged rather than only hearing about it afterwards.