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.
Source: Daily News and Cde Msekwa Himself.