Legal ambiguity on children’s rights marriage will likely last longer

25Oct 2019
The Guardian
Legal ambiguity on children’s rights marriage will likely last longer

JUBILATION was evident in legal circles in the gender rights movement in Tanzania earlier this week when they won a crucial appeal in relation to the rights of children. The government had lost an appeal on a High Court ruling prejudicial to the Marriage Act of 1971.

Many activist quarters expect the law itself to be revamped in the wake of this appeal being struck down and a High Court annulment of marriage below 18 years of age standing. That is what there is on the face of it, though not quite so in reality.

As a matter of fact, much headway has already been made to annul child marriage through free secondary education for all children, subject to the passing of the Standard VII examinations.

It is reported that parents wishing to marry off under-age girls commonly push the children to do badly in primary school leaving exams so as to prepare the road for marriage.

Thus, unless there is universal compulsory secondary school education for all children, it will be hard to actually stop child marriages merely by court fiat.

This educational avenue is the best route towards realising child rights advocacy goals instead of exclusive legal fraternities and organisations, as these are marked out by a cultural distinction of the source of their convictions.

The Law of Marriage Act sought to accommodate various sources of marriage authorisation – this including customary law, which is highly respected in Commonwealth law traditions.

The law of marriage was a continuation of this principle, and to that extent the court decisions both in 2016 and at present are largely in consonance with this maxim.

That is why the government has made efforts to make sure that every girl child determined to study will do so and will not be forced into marriage, which would shatter the dreams of many a schoolgirl.

As for those who do not proceed with studies after Standard VII, the challenge of underage marriage is more of a health and psychological issue, which is relevant and urgent but is of a different order: it is visibly a line of demarcation.

The government doesn’t have sufficient mobilisation space in that kind of territory relative to the number of girls wishing to attend secondary school.

When a girl child is done with primary school education and there no universal free secondary education is available on a compulsory basis, there will be a stretch of instances or incidents where parents may agree on a girl marrying.

As per High Court judgment in 2016 and its being upheld by the Court of Appeal now, the plaintiff stands to win the case if any underage marriage is contested in court.

However, the matter will not be that simple. Issues like where the plaintiff stands in that issue come in, for instance whether he or she is an interested party according to the 1971 Act.

What can be said is that a judicial roller coaster on that issue might not be the best way to go about it, and that is why the government appealed the 2016 High Court ruling.

The fact that the government lost the case doesn’t mean that its arguments are invalid, as the harmony the law in question is meant to ensure remains a vital governance goal.

Therefore, it is of fundamental importance for the balance to hold – which is precisely why we see the legal ambiguity relating to children’s rights, including marriage, lasting much longer than commonly thought.