Court issues six-month ultimatum on Marriage Act amendments

THE High Court, Main Registry, has once again given the Attorney General (AG) six months to comply with court decisions regarding amendments of the Law of Marriage Act to pronounce the age of 18 years as minimum for marriage.

Judge Moses Mzuna ruled against the AG, the respondent, after granting in part a civil cause lodged by a citizen, Mary Mushi, the petitioner, to challenge the move by the Justice and Constitutional Affairs minister, seeking public opinion on minimum age of marriage for a girl provided in various laws.

“The Attorney General is once again directed within another six months from today to comply with the court decisions which should also be reflected by doing away with  unconstitutional provisions in the Law of Marriage Act in the Revised Edition of 2019,” he said in the judgment dated June 14, 2023.

Judge Mzuna issued the order in exercising powers conferred on the court under the Basic Rights and Duties Enforcement Act, read together with Article 108 (2) of the Constitution and Section 5 of the Judicature and Application of Laws Act.

He was mindful of the fact that there was already an order for compliance which has not been abided by, or there is a move purporting to abide to it though in a different way.

Before reaching the decision, the judge had to determine some issues, including whether a confusion exists with regard to the minimum age of marriage for girl children in view of the High Court decision and its subsequent affirmation before the Court of Appeal of Tanzania in the case involving Rebeca Gyumi.

Another issue considered was whether the ongoing nationwide consultations initiated by the minister that seeks to scrutinise the courts decisions over the matter is a correct approach to take.

The court also had to determine whether Section 13 and 17 of the Law of Marriage Act, which were declared unconstitutional by the High Court still exist in the statute books following lapse of one-year moratorium on June 1, 2017.

In his judgment, the judge noted that there cannot be consent in a contract involving someone who has not attained the age of majority, which is 18 years, saying he found no confusion on the minimum age of marriage in the two decisions of the High Court and that of the Court of Appeal.

With regard to the ongoing public consultation, Judge Mzuna said: “What the minister is trying to employ, without mincing words, is derogation of the powers vested to this Court and the Court of Appeal or the Judiciary, to be more specific.

“The minister, let alone the general public, I am worried, cannot circumvent the clear wording of the two judgments, above cited. I am of the settled view that public consultation is in total defiance of the spirit of the constitution through which he was appointed and promised to safeguard through an office of office.

“There cannot be amendment of section 13 and 17 of the Law of Marriage Act under the pretext that it is not in harmony with other provisions of the law.”

He pointed out that there is already a challenged law which the government through the directions of the Attorney General ought to have effected amendments within the given period of one year, and there was no application for extension of time either.

He said the ongoing nationwide consultations which seek to debate on the already adjudicated matter and more seriously in a more diverse way or reopening it, worse still after a lapse of a given time, seems to downgrade the judiciary as the final authority for dispensation of justice.

“I am therefore convinced, it is not a correct approach to take. That may be true so far as definition of a child is concerned but not in relation to the minimum age for marriage,” the judge said.

On whether Sections 13 and 17 of the Law of Marriage Act exist in the statute books upon lapse of one-year moratorium on June 17, 2017, he noted that such provisions were not declared null and void by the High Court.

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