Tanzania’s Marriage Law @55: The unfinished Rebeca Gyumi case

DAR ES SALAAM: FIFTY-FIVE years after Tanzania enacted its marriage law, and a decade after Rebeca Gyumi took the government to court over provisions allowing girls to marry before the age of 18, the legal question at the heart of the case remains unresolved.

The 2016 lawsuit was widely seen as a turning point in Tanzania’s long-running debate over child marriage. Yet the provisions challenged in court remain part of the Law of Marriage Act, 1971, raising a fundamental question: Did the courts actually strike down the law, or did they leave Parliament to amend it? The Law of Marriage Act, 1971, sets different minimum ages for boys and girls to marry.

Section 13 states that a male must have reached 18 to marry, while a female must have reached 15. The same section allows a court, in special circumstances, to authorise a marriage where each party has reached 14. Section 17 separately requires a girl below 18 to obtain parental or guardian consent before marrying, while allowing a court to provide that consent in certain circumstances.

That distinction has farreaching consequences. It goes beyond the age at which a girl can marry to questions about how constitutional judgments take effect, where judicial power ends and legislative power begins, and what happens when a landmark ruling is understood by the public differently from what its formal orders say.

Ten years on, legal experts, government officials, journalists and organisations working to protect girls are revisiting the Gyumi case, not simply to ask what the courts decided, but why a legal framework that has been under scrutiny for decades remains at the centre of Tanzania’s childmarriage debate. The dispute centres on Sections 13 and 17 of the Law of Marriage Act, 1971.

The provisions became the focus of Gyumi’s constitutional challenge because they provided different legal treatment for boys and girls in relation to marriage. Under the framework challenged in the case, a boy was required to reach 18 to marry, while a girl could marry below that age under specified circumstances, including with the consent required by law. That difference became the central legal issue.

Gyumi’s case brought the question before the High Court in 2016 and placed Tanzania’s marriage law under intense constitutional scrutiny. The decision that followed became a landmark reference in discussions about child marriage. But a decade later, some legal experts say its practical meaning has been misunderstood.

During the Multi-Stakeholder Symposium on Amendment of the Law of Marriage Act, 1971, held over the weekend, retired High Court Judge Robert Makaramba argued that the High Court did not expressly declare the contested provisions null and void, despite the widespread belief that the case had effectively established 18 as the minimum marriage age. For him, that distinction is fundamental.

“People believed the court had said the provisions were invalid, when the judgment did not make such an express declaration,” Judge Makaramba said.

He said the difference between saying that a provision is unconstitutional, saying that it deserves to be declared invalid, and actually declaring it null and void is not merely semantic. It can determine what happens to the law after judgment.

“The Law of Marriage Act is legislation enacted by Parliament. If its wording is to be changed, that normally requires a legislative process unless a court has expressly removed the provision’s legal force through an appropriate constitutional remedy,” he said.

That is where the Gyumi case continues to generate debate. He said the case did not end with the High Court. The Attorney General appealed, and the Court of Appeal delivered its decision in 2019. The appellate proceedings added another layer to a legal dispute that had already become a national reference point on child marriage.

Yet the provisions of the 1971 law have continued to feature in discussions about marriage involving girls below 18. For many Tanzanians, that has created a gap between the public understanding of the Gyumi case and the status of the legislation itself.

The public narrative that the case simply “made 18 the legal marriage age” is easier to communicate than the constitutional and procedural questions surrounding the court’s orders.

Ms Consolata Chikoti, Director of Msichana Initiative, which organised the symposium, said the meeting was intended to examine how civil society efforts can complement government initiatives and clarify the state’s responsibility in delivering longawaited legal reforms. She warned that the cost of delay is borne by girls.

“The longer the law takes to change, the more girls continue to be harmed,” she said, underscoring the urgency of aligning government efforts with concrete action to strengthen legal protection for girls. Traditional leader Ms Zinduna Kambangwa called for the law to be reviewed, saying customary practices should not override the protection of girls’ rights.

Independence lawyer Adv Jebra Kambole, from Human and Child Rights, said the consequences of the law are felt most heavily by children from poor families and rural communities, where early marriage remains a significant concern.

“The law affects children from poor families, particularly those in rural areas. That is why there has not been enough political pressure to change it,” he said.

If a court has made a determination, he argues, state institutions need to provide a clear path towards implementation. Leaving the issue between a judicial ruling and a legislative process creates uncertainty over what the law actually requires.

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He said the case also raises broader questions about respect for judicial decisions and the independence of the judiciary. Irene Nambuo, coordinator at TECMN, said efforts to reconsider the marriage law date back to the 1990s. Nearly three decades of recommendations, discussions and consultations have followed.

“This process did not begin in 2016. There have been recommendations and discussions for many years,” Ms Nambuo said.

For Nambuo, the focus should now be on converting the long-running debate into a clear legal framework that protects girls. The concern, she said, is that another cycle of consultations could extend a process that has already lasted for decades.

The government, however, says the process is continuing. Advocate Innocent Magesa, representing the Ministry of Constitution and Legal Affairs (MoCLA), said the government is collecting public views and providing education as part of the ongoing process to review the legal framework.

“Officials encounter challenges when discussing the issue with communities and families, including situations where parents have strong views about whether their daughters should marry at a young age. “The government has not remained silent and continues to provide education and work to protect girls,” Adv Magesa said.

He also pointed to existing laws designed to protect children, including the Law of the Child Act and provisions of the Penal Code that provide severe penalties for certain offences involving children. The government, he said, is continuing the reform process and collecting views across the country.

There is also a financial dimension. Adv Magesa said consultations require funding and that the government allocates money for the process through its annual budgets.

“The process, therefore, is not simply a legal question. It is also an administrative and budgetary one. “Each year, resources have to be allocated to continue educating, with the government intending to proceed until views have been collected across all regions,” Adv Magesa noted.

Magesa said existing childprotection laws provide mechanisms for protecting children and that the government continues to educate communities about those protections. Rose Marandu of Women Fund said early marriage changes the course of a girl’s life before she has had an opportunity to complete her childhood.

“When a girl is married before her time, we give her responsibilities that do not belong to her age,” Ms Marandu said.

Marriage can mean leaving school, becoming pregnant at a young age and assuming responsibility for a household before reaching adulthood. Marandu pointed out the contradiction of expecting a girl to assume the responsibilities of a wife and mother while other parts of the legal framework treat people below 18 as children who require protection. The question, she said, is why a person considered too young for certain adult responsibilities should nevertheless be permitted to enter marriage.

That argument has become one of the strongest pillars of the campaign for a uniform minimum marriage age. Mwajuma Kasimba, a girl who is out of school, called for stronger protection of girls from child marriage and urged lawmakers to amend the minimum marriage age to 18. She said retaining the current legal framework risks leaving girls vulnerable to early marriage and cutting short their education and future opportunities.

The issue has also kept the media involved. Journalist Jacob Musenda of The Citizen, who has followed the debate, said the media have played a role in informing the public about legal and policy developments since the Gyumi case.

But he said the public still needs a clearer answer to a basic question: If so many stakeholders agree that the law needs to change, where exactly is the process stuck? “Everyone says the law needs to be amended because of its impact on girls. But we still need to understand where the process is stuck and who is responsible for moving it forward,” Musenda said.

For the media, that means moving beyond simply reporting that the law needs reform and examining the legal and institutional process required to make that reform happen. It also means explaining the difference between a court ruling and an Act of Parliament. That distinction is particularly important in the Gyumi case because the dispute has become shorthand for a legal change that many people believe has already happened.

The question of what the court ordered is therefore inseparable from the question of what Parliament must still do. The representative of the Ministry of Education, Science and Technology, Ms Felista Mapunda, said work on the issue should ensure that future legislation goes further by establishing an unambiguous minimum marriage age of 18 and clear consequences for anyone who conducts, facilitates or approves a marriage involving a child. She said such provisions would need to be supported by an enforcement system capable of preventing underage marriages, reporting them and holding those responsible accountable.

“That would move the debate from the wording of the law to the practical question of how the law works in villages, schools, families, religious institutions and local government offices,” she said. The Rebeca Gyumi case may have changed the national conversation about child marriage. Ten years later, the question is whether Tanzania’s law will change with it.