23 October 2019 – Today, the Tanzania Court of Appeal issued a judgment in the case of Attorney General V Rebeca Gyumi dismissing an appeal filed by the State against a judgment obtained in the High Court in 2016. Rebeca Gyumi was represented by Jebra Kambole, Mpale Mboki, Alex Mgongolwa, Fulgence Massawe and Mary Richard.
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 sections 13 and 17 of the Law of Marriage Act unconstitutional for setting different minimum ages for marriage for boys and girls. The High Court ordered the State to amend the law within 12 months. The State filed an appeal against the decision of the High Court, which was heard on 24 July 2019 before Honourable Augustine Mwarija J, Honourable Winfrida Korosso J and Honourable Dr Mary Lavira J.
“The decision of the Court of Appeal is very welcome, and a very important milestone in the fight against child marriage. It is an affirmation of the regional and international human rights instruments to which Tanzania is a party, that require the eradication of child marriage and upholding principles of equality and informed consent in marriage,” said Rebeca Gyumi, Executive Director of Msichana Initiative, the litigant in the matter.
“It is hoped that the State will speedily implement and give effect to the decision by amending the Law of Marriage Act, which should also provide for the consequences of facilitating child marriage,” said Tambudzai Gonese-Manjonjo, Programme Lawyer at Southern Africa Litigation Centre.
It is estimated that 37 percent of girls in Tanzania are married before they reach 18 years of age. According to the Law of Marriage 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.