SALC supported Msichiana Initiative and Rebeca Gyumi in an appeal filed by the state in the Tanzania Court of Appeal against a judgment obtained in 2016. In 2016, Rebeca Gyumi filed a case on behalf of children at the risk of child marriage, Rebeca Gyumi v Attorney General, challenging the constitutionality of child marriage in Tanzania. The High Court granted the application and declared unconstitutional sections 13 and 17 of the Law of Marriage Act that set different minimum ages for marriage for boys and girls, and ordered the state to amend the law within 12 months.
According to the Act, the minimum age for marriage is 15 years for girls and 18 years for boys. Section 13 of the Act allows boys or girls to be married at 14 years with judicial permission. In terms of section 17, a girl under 18 can be married with parental consent, or if no parent is alive, guardian’s consent. In the absence of parents or a guardian, no consent is required.
The High Court found that child marriage is contrary to the best interests of the child, as provided in the Law of the Child which defines a child as a person below the age of 18 years. The Court stated that the impugned provisions of the law of marriage Act allow children to enter into marriage, and that children should not be burdened with complex matrimonial and conjugal obligations, including possible serious health risks for the girl child when she marries at a young age. The High Court also found that setting different minimum ages of marriage for boys and girls was discriminatory and contrary to the right of equality provided in the Tanzanian constitution. In addition, the court held that child marriage could not be justified on the basis of customary and religious norms, as it was not applicable to marriage law in Tanzania, and also because any law or custom inconsistent with the Constitution could not be upheld. The Court also stated that the law was outdated and had outlived its purpose, in the context of more recent legislative interventions that penalised sexual exploitation of children and learners
The state filed an appeal against the decision of the High Court, on 5 grounds: The state argues that the High Court erred in finding that the law was discriminatory, and that the differentiation between girls and boys is justified on the basis that girls mature earlier than boys. The state also argues that the law protecting children in Tanzania should not be applicable to marriage, and so the High Court erred in equating the age of a child with the age of marriage. In addition, the state argues that the High court was wrong in finding that customary and religious laws do not apply to marriage law, and also that the court was wrong in deciding that the law was outdated and no longer served any purpose and should be declared null and void.
The appeal was heard on 24 July 2019 before Honourable Augustine Mwarija J, Honourable Winfrida Korosso J and Honourable Dr Mary Lavira J.
Rebeca Gyumi was represented by Jebra Kambole, Mpale Mboki, Alex Mgongolwa, Fulgence Massawe and Mary Richard.
On the 23rd of October, the Tanzania Court of appeal issued a judgment dismissing the appeal and upholding the decision of the High Court. In terms of the High Court decision, the State has to amend the law within one year.