What lies ahead of a review of Tanzania’s marriage law

Dar es Salaam. Lucy John*, 16, (*not her real name) is hoping she will deliver her first child safely when she goes into labour three months from now.

Lucy was married at the age of 15 as per the tradition of her people in Shinyanga Region. But, she was just as soon allegedly abused by her husband, divorced and sent back to her parents.

“I didn’t know my rights. I was just told that I was getting married. I didn’t choose the man. While living with the so-called husband, he would often beat me mercilessly whenever he felt like it. He would also have affairs with other women. I was too young to fight for my rights. And, here I now am: divorced - and a baby on the way,” she narrates.

She says that now she hopes that she will be able to deliver her baby safely and plan for her future.

Lucy is not alone in this predicament. Another Shinyanga girl, Mary James*, 17, (*not her real name) was also married at the age of 14 years according to traditions of her people - and this was after her father had stopped her from attending school.

According to the Tanzania Demographic and Health Survey (TDHS) Report 2015/2016, two out of five girls aged below 18 were married.

TDHS report reveals that Shinyanga Region leads with 59 percent, Tabora 58 percent, Mara 55 percent, Dodoma 51 percent and Lindi 48 percent.

The report shows that Tanzania is among countries with the highest rates of child marriage in the world, with close to two in every five girls marrying before they are 18. The marriage law allows girls as young as 14 to marry with the consent of the court, and at 15 with the consent of their parents.

But in a landmark decision, the High Court of Tanzania ruled in 2016 that the Marriages Act must be revised to eliminate the inequality between the minimum age of marriages for boys and girls. It should make it illegal for a girl to marry before the age of 18. The court also ruled that parents and other community members who facilitate child marriage could be liable to up to 30 years in prison.

The ruling comes as a happy surprise to Rebecca Gyumi, a lawyer and child rights campaigner who spent years fighting for a ban on child marriage. She submitted a petition to the court seeking for a “clarification” of the child marriage laws in the hope it would give campaigners a solid ground to start from. She never imagined the court would go so far as to ban the practice completely.

However, Gyumi notes that despite the landmark success, the road ahead was still difficult, awaiting Parliament to pass a Bill that will ban child marriages.

Contacted, the director of Public Legal Services in the Ministry of Constitution and Legal Affairs, Mr Griffin Mwakapeje, said the Ministry has already prepared the Bill ready to be tabled in Parliament. However, the Parliamentary Committee for Constitution and Legal Affairs directed the Ministry to go back and engage the public at large, which they have been doing since November last year to date.

He said the government started the process of preparing the Bill for endorsement in Parliament by first criminalizing any issue related to child marriages including reviewing the Education Act.

“You must understand that this issue is complex and cuts across touching on culture, tradition, religion and even people’s lives and therefore we have to tread carefully,” he said.

In view of that, he said in November 2020 they engaged elders in Arusha and December the same year engaged with traditional elders in Mwanza.

Further in May they engaged religious stakeholders in Dar es Salaam by explaining to them the legal requirement, and also did the same in Dodoma with chairs of different organizations.“We are also preparing a roadmap to show the engagement, he said.

On his part, Minister for Constitutional and Legal Affairs, Deputy Minister, Geoffrey Pinda said in Parliament recently that the bill of marriage law was submitted to the constitutional and Legal Parliamentary Committee in February 2021 following the decision of the Courts in the case of Rebecca Gyumi, Appeal no. 294 of 2017 and no. 5 of 2016 of the Supreme Court which required the marriage law to be amended so that the girl child could be married at the age of 18 years.

The committee after the review saw the need for more stakeholder engagement to get more feedback. “The government is continuing with a stakeholder engagement exercise where so far the government has been able to hold meetings with religious leaders in the Dar es Salaam region, in March this year, the second meeting was held in Dodoma on July 2, this year which included Dodoma MPs and leaders of Dodoma regional council,” he said.

The case filed by Rebecca against the Attorney General in 2016, sought for section 13 and 17 to be scrapped because they were unconstitutional as well as discriminative against boy and girl child.

The sections include Law of Marriage Act, (Principal Legislation) Revised edition of 2019, Section 13.-(1) which stated that no person shall marry who, being male, has not attained the apparent age of eighteen years or, being female, has not attained the apparent age of fifteen years. (2) Notwithstanding the provisions of subsection (1), the court shall, in its discretion, have power, on application, to give leave for a marriage where the parties are, or either of them is, below the ages prescribed in subsection (1) if- (a) each party has attained the age of fourteen years; and (b) the court is satisfied that there are special circumstances which make the proposed marriage desirable.

Meanwhile Section 17, states a female who has not attained the apparent age of eighteen years shall be required, before marrying, to obtain the consent- (a) of her father; (b) if her father is dead, of her mother; or The Law of Marriage Act [CAP. 29 R.E. 2019] 18 (c) if both her father and mother are dead, of the person who is her guardian. (2) Where the court is satisfied that the consent of any person to a proposed marriage is being withheld unreasonably or that it is impracticable to obtain such consent, the court may, on application, give consent and such consent shall have the same effect as if it had been given by the person whose consent is required by subsection (1).

(3) Where a marriage is contracted in Islamic form or in accordance with the rites of any specified religion or in accordance with the customary law rites, it shall be lawful for the kadhi, minister of religion or the registrar, as the case may be, to refuse to perform the ceremony if any requirement of the relevant religion or person other than a person mentioned in subsection (1) has not been complied with: Provided that, nothing in this subsection shall be construed as empowering the kadhi, minister of religion or registrar to dispense with any requirement of subsection (1).

However, the national chair of Muslim women in mainland Tanzania under the National Muslim Council of Tanzania (Bakwata), Shamim Khan said according to marriage guidelines, that was uttered by Ulama council on marriage and early child marriages in accordance to the Kurhani Chapter Nuur, Verse 22 it is not allowed to change what is already in the Kuruhan laws and sharia unless they contradict.

“There’s no age limit for marriage, as long as a girl is ready in mind and body. But then, education is important for all Muslims and when a child shows interest to develop her education, it’s imperative that her parents give her full support,” she said.

She stressed that both boy- and girl-children should be given equal opportunity to education and other rights as a matter of course.

The Bakwata chief of protocol, Shehe Mohamed Nassoro, said Islam religion does not contradict with the laws of the country.

On his part, Pastor for Shinyanga Evangelical Lutheran Church in Tanzania (ELCT) Macodonius, Harold Makoro said the church believes that when you educate a woman you educate the nation and therefore stresses on the right for girl education, the right to be heard, and right to play.

In view of that, he said, the church does not marry girls who are below 21 years old. “When both men and women express their interest to marry, we request they produce, birth certificate, and an education certificate and if they are below 21 years, we refuse the marriage,” he said.

Meanwhile, a Network to Eradicate Child Marriages in Tanzania, Coordinator, Euphomia Edward said early marriage was complex and needed advocacy at national level.

She said to date the amendment for the marriage act was yet to be effected. “We have been meeting with leaders from all levels to discuss how this can be effected.