After the landmark ruling that made it unlawful for anyone under 18 years of age to get married,an opinion piece by renowned lawyer and academic Alex Magaisa brought out some critical issues that need to be addressed by both the courts and the legislature.
The article is detailed and insightful and you’re encouraged to read and share it, so that hopefully our lawmakers can not only act on the issues that are raised but also that the discussion on the matter continues until the practice of child marriages is ended.
In a nutshell, here are 3 things that need to happen now that the Constitutional Court have made their ruling:
Legal Penalties
The court have confirmed that child marriages are banned but there are no ‘sanctions against infringement’ – offenders will not be punished. The courts do not have the power to do that, it is the lawmakers that sit in parliament that can. Laws need to be put in place so that offenders are brought to book, and the punishment needs to be deterrent enough to make people think twice before engaging in such an act.
 |
| Image Credit: AWEPA.org |
The problem of child marriage is most evident in traditional or religious contexts where marriage is socially negotiated and issues of legal validity are really of no consequence. A change in society’s mindset needs to take place and serious re-education campaigns, both of general members of the public and more importantly, the whole institutional structures of law enforcement, interpretation and judicial decision-making needs to take place. The mentality displayed last year by the country’s Prosecutor-General, Johannes Tomana, in relation to the minimum age of consent and child marriage which he seemed to regard as a solution rather than a problem needs to be changed.
Raising Age Of Consent
We have a situation where a 17 year old can consent to sex (because the minimum age of consent presently is 16) and yet the age of marriage is 18. One cannot marry but can lawfully have sex, but sex has consequences, including pregnancy. The point here is that it might be necessary to consider realigning the age of marriage and the age of consent to prevent complications. Should the age of consent now be raised to 18?
This is a pertinent question given that the constitution classifies all persons below 18 as children, a point that is confirmed by the Court in this case. Can a person whom the law regards as a child consent to sex? The current age of consent (16) was consistent with the age of marriage set for girls under the Marriage Act but now that this has been raised to 18, it might be argued that the age of consent must also be raised.
We have a situation where a 17 year old can consent to sex (because the minimum age of consent presently is 16) and yet the age of marriage is 18. One cannot marry but can lawfully have sex, but sex has consequences, including pregnancy. The point here is that it might be necessary to consider realigning the age of marriage and the age of consent to prevent complications. Should the age of consent now be raised to 18?
 |
| Image Credit: News of the South |
Law-makers must be seized with this matter in the wake of this important judgment. It might resolve the problem of imbalance raised in the last section, in that sex with a person under the marriage age would be regarded as unlawful, in which case, the moral hazard of more pleasure without responsibility among males would be minimised.
You can read Alex Magaisa’s full article here
Main Image Credit: ForwardUK.org.uk
