To a
presumably large number
of stakeholders, including
myself, and specifically, to the
Law Reform Commission
of Tanzania; the
decision by the Court
of Appeal of Tanzania, which
was made on
Wednesday last week,
the 23rd day of
October, 2019; was not
only very great news,
but was also most welcome
news. In my case,
and that of the
Law Reform Commission
of Tanzania, our
joy and satisfaction
arises from the
fact that our
past endeavours to have
these same amendments made
to the Law
of Marriage Act of 1971, which
had apparently failed;
have now,
at last, borne fruit. Thus, our
efforts have been
amply rewarded.
The
relevant story is that this particular
matter had seriously engaged
our minds as
a Commission, way
back in the
early 1990s, but
without success; as is succinctly narrated
here below.
The untold story
of the Tanzania
Law Reform Commission.
In 2013, The Law
Reform Commission of Tanzania celebrated
its 30th anniversary of service to
the public, after
it was established
in 1983. I personally had the very good
fortune of being
a member of
that professional body, continuously for
the whole of
that period; thanks
to repeated ‘mandate
renewal’ by the
appointing authorities. Thus, in the
capacity of “senior
member” thereof, I
was invited to
give the ‘key note
address’ on that
occasion; an opportunity
which I delightfully
grabbed. In my carefully
prepared speech, I expressed
what I described
as the “disappointments”
, which
the Commission had
suffered, as a result
of the Government’s
failure to take
action on many
of its recommendations. And, in
relation to its recommendations contained in its
1994 “ Report of
the Law Reform
Commission on the Law
of Marriage Act, 1971”.
This is precisely what
I said:-
“The other disappointment has
been that, in
many cases, no
action whatsoever, has
been taken by the
Government on the Commission’s
recommendations, including those which
were made regarding the
Law of Marriage
Act, 1971. The
facts of which,
are as follows:
Our Commission, having carefully
appraised the numerous complaints that
were being expressed
in various seminars
and workshops which
the Commission had
organized in preparation for its Report
thereon, specifically regarding
the tender age
at which girls
are allowed by
that law to
get married. However, In
making its relevant
recommendations, the Commission
was mindful of
the primary purpose for which the
enactment of that legislation was
intended to achieve;
which was ‘to reform
that law in order
to properly align
it with the aspirations of
the then ruling
party (TANU), of providing
equal statutory recognition
to all marriages however celebrated:
be they Christian,
Islamic, Civil, or
Customary’.
Nevertheless, we
pointed out, that since the
Commission was reviewing
that legislation after
it had been
in operation for a whole
twenty years; and also in
view of the
social and cultural
changes and developments
that had taken
place in our society during
those two decades,
some of its
provisions were, obviously, in
dire need of modification;
such as sections
13(1) and 13(2)
thereof, which make discriminating provision
for a different minimum
age of marriage for
males and females, with
females being allowed
to get married
at the tender
age of 14
and 15 years with parental
consent; but retaining
18 years for
males. Hence, In view
of that glaring discrimination, the
Commission had recommended that appropriate
amendments be made to
raise the minimum
marriage age even for
females, to 18
years; which is
the legal age
of majority. But,
unfortunately, no such amendments
have been made
so far; presumably
for some good
reasons on the
part of the Government”.
No
hope of action from
the Government.
However, in making
those remarks, I still had
no hope, nor
expectation, that the
Government would take
any action as
a result of
those remarks. Based
on my experience in Government
practices and procedures,
I was fully
aware that remarks
made in a
speech delivered at a
private function, organized
by the relevant
stakeholders in
order to celebrate
something that may be
important to them; cannot
possibly lead to action being
taken by the
Government.
I
was aware, for
example, that such
speeches at private
functions, are totally
different from those which
are made by
MPs inside Parliament House,
in the form
of ‘complaints’ directed
at Ministers present
therein, with the
full expectation that
the Ministers concerned are
conventionally bound to
respond promptly to any
complaints raised
in MPs speeches.
Thus, with
a clear understanding
of that material
difference, even though
the Minister responsible
for Legal Affairs
had been invited and was present
at that function;
I strategically chose
to describe my remarks
as the Commission’s
“disappointments”, rather than
“complaints”; as a
polite way of
drawing the Government’s attention
to its specified
shortcomings, or failures.
I
had strategically
designed my remarks in the likeness
of the speeches normally
delivered by the actors
on the stage,
such as those
in the Plays written
by that famous
English Playwright William
Shakespeare’s Plays, and specifically
those
that were purposefully
selected by Mwalimu
Julius Nyerere for
translation into Kiswahili
as “ Julius Kaizari” and “Mapepari
wa Venisi”. They
may contain valuable
lessons, but they
can only
deliver such message to the
relevant audience, without expecting
any immediate response
from that audience,
other than the
sporadic applause. Hence, similarly
in my
case, despite the
factor of the
Minister responsible for Legal
Affairs being present,
I
actually expected no
immediate response from
the Government. And, indeed,
as expected, none whatsoever
came out.
Enter the judiciary.
The court battle started
when a petition
was filed at
the High Court
by a girls’
rights advocate, one
Rebeca Gyumi, Director
and Founder of Msichana
Initiative. Her petition
subsequently went through
the normal court
process of hearing,
and eventual determination; after which,
the High Court
panel of three
Judges made its
decision on July 8th,
2016; which nullified
sections 13 and
17 of the
Law of Marriage
Act, that had
allowed girls at the tender
age of 14
and 15 years,
to get married
‘with parental
consent’. The High
Court ruled that
marriage under the age of 18 years was
illegal; and, consequently, declared
those provisions unconstitutional; giving
the Government one
year from the
date of that
ruling, to introduce
appropriate legislative amendments,
which would put 18 years
as the minimum
age for marriage
for both males
and females.
This decision was, indeed,
entirely reasonable, considering
the new developments
that had taken
place, whereby the
Government itself had started taking measures
to criminalize any attempts
by anyone, to
marry school- age children;
plus all those persons who impregnated
any Primary, or
Secondary School girl.
Surprisingly however, in a
move that attracted
fair criticism from a section
of the general public, the Government, through
the Attorney General,
appealed against the
High Court ruling.
The appeal case
had been dragging on
until last week, when
the Court of Appeal
sitting in Dar
es Salaam, upheld
the earlier High
Court ruling regarding the
constitutionality of child
marriages.
The
Court of Appeal
dismissed the
appeal lodged by
the Attorney General in
a vain attempt
to fault
the High Court
ruling, confirmed the
High Court’s decision,
and annulled those
provisions of the
Law of Marriage
Act , which had allowed the
marriage of girls
below the age
of 18 years.
This landmark decision,
sets the statutory
marriage age for
both males at
females, at 18
years. The Court of Appeal,
the country’s highest
temple of justice, said
thus:- “
We find
and hold that
the entire appeal
has no merit.
The appellant was supposed
to abide by the
order of
the High Court,
to cause
amendments to be made
to the Law of
Marriage Act as
directed by the
High Court. Having so
stated, we dismiss the
appeal in its
entirety, with no
order as to
costs”. Absolutely
fabulous! “Roma locuta, causa
finita”.
“Great
minds think alike”.
Looked at from
another perspective, the
Court of Appeal
decision has proved
the efficacy of the
dictum, which is
attributed to an
anonymous wise guru, namely
that “great
minds always think
alike”. In
their judgment of last week,
the Court of Appeal
Justices also pointed
out that “while
the Law of
Marriage Act may
have been enacted
with good intentions
in 1971; its intention
is no longer
relevant, because the
effect of the Act’s
provisions that are being
challenged, amounts to
discrimination against girls,
by depriving them
of certain vital
opportunities.
This is exactly
the argument that had been
advanced by the
Law Reform Commission in its
1994 recommendations, in
which it strongly
urged the Government
to make those same amendments
to this law. This serves
as testimony to
the fact that
those ‘learned brothers
and sisters’ in
both the Law
Reform Commission, and in
the Judiciary (the High
Court and the
Court of Appeal),
were clearly “thinking
alike”, to the
great disadvantage of
their counterparts in
the Government!
“Give credit where
credit is due”
At this juncture,
I feel I
should do
the needful and “give credit
where credit is due”. Kudos to
Ms Rebeca Gyumi for
her bold initiative
in taking this
matter to court;
and achieving such a
pleasant outcome. She
had apparently followed Mr. Justice
Samatta’s general advice to
the public, that the “the
doors to the
temple of justice
are always wide
open and welcoming
to anyone who
feels aggrieved by
a contravention of
the law”.
Ms Rebeca Gyumi,
a prominent child
rights activist, must
have felt aggrieved
by the widespread
injustices caused to
large numbers of
Tanzania girls, through
wanton child marriages
and pregnancies. She
therefore decided to
“take the bull by
the horns” by
going to that
venerable temple to
seek justice. “Constitutional litigation”
has generally not
been a common
feature of public litigation
in Tanzania. Although the
enterprising Professor Issa
Shivji, of the
University of Dar es Salaam, introduced
the mood for
anticipating an ‘explosion’
of constitutional litigation
cases being filed
in our courts,
when , in his
inaugural professorial the
list of “Union
matters” saying that
‘these were justiciable
issues that could be
impugned in the
domestic courts on the
ground of repugnancy’. But the
matter actually ended there, and
the anticipated ‘flood
of constitutional litigation’
did not materialize.
Ms Rebeca
Gyumi therefore
richly deserves commendation
for her pathfinder
initiative in relation
thereto.
“Action speaks
louder than words”.
The expression
that “action speaks
louder than words”
is a fairly
familiar English language
proverb. The efficacy
of this proverb
has been proved
‘beyond reasonable doubt’
in Ms
Rebeca Gyumi’s successful
litigation against the
Government. Many other self-declared activists
have expressed their
concerns at the
glaring injustices being
perpetrated against the girl
child, but they
all ended up much
like the speeches
by actors on
the entertainment stage:
they delivered the
message, but with
no tangible results
being obtained.
On the
contrary, Rebeca Gyumi’s
court action,
and specially the huge society benefits accruing
from it as
a result of
the Court of Appeal’s
landmark decision, has
bestowed lasting peace on
the minds of
the girls who
were victims of
the offending provisions
of the Law
of Marriage Act,
1971, that have
now been nullified,
and are no
longer part of
that law. Alleluia.
Piomsekwa @gmail.com/0754767576
Source: Daily News and Cde Msekwa Himself.
