ZAMBIAN LAWS ON CHILD MARRIAGES

BY VANESSA L. NDHLOVU

Recommended citation: Vanessa L. Ndhlovu, Zambian Laws on Child Marriages, University of Lusaka Academia and Legal Writing Society, Article (2022), https://undergrad.unilus.app/law/

INTRODUCTION

Throughout the time in memorial various countries’ world leaders and international organizations have fought relentlessly to advocate for the rights of a child but a question would be posed as to who exactly a child is? This article’s main focus will be based on defining who a child is, what our Zambian law has put in place to protect children’s rights in relation to early marriages and how the Zambian legal system though it has put measures in place still has some grey areas, particularly concerning how the courts have handled matters, especially under our Zambian customary law. Regardless of whether it’s in the aspect of customary or statutory law all early marriages shouldn’t be recognized in any sort of way or form under our jurisdiction.

DEFINITION OF A CHILD AS PER THE LAWS

According to the oxford dictionary, a child is defined as a young person who has not obtained puberty or a person who has not attained the legal age of majority. According to the international legal framework Article 2 of The African Charter on the Rights and Welfare of the Child gives the definition of a child, “a child means every human being below the age of eighteen (18) years.” Similarly, Article 1 of The Convention on the Rights of the child states “For the purposes of the present Convention, a child means every human being below the age of eighteen (18) years old unless, under the law applicable to the child, the majority is attained earlier” Under the Zambian jurisdiction Article 266 of the constitution of Zambia states, “in this article, a young person means any person under the age of eighteen years.” However due to the enactments of certain legislation the age of the capacity to marry is restricted to only those above the age of sixteen (16) but it is possible to marry below that age provided you obtain consent from a High court Judge as long as the marriage obtained is not contrary to the public interest. Such law is provided for under Section 33(1) of the Marriage Act. Therefore, it can be noted that while some international conventions give their distinct age threshold between who can be recognized as a child and who could reasonably believe to be an adult there is an aspect of commonality pertaining to being below the age of eighteen (18). The essence of such law is mainly to protect the best interests of a child to give equal opportunity for them to have a chance at a normal life to give them a chance of possibility to a future within their reach, hope for education the right for their opinions on certain fundamental decisions about their future and even their health. This brought about the introduction in the Zambian legal system of various enactments concerning the protection of these rights. Therefore, there is no single statute that deals with these rights in totality but they are catered for in our constitution and at least about twenty-six Acts. Briefly stated examples of some of these Acts could be the Penal code, the Employment of Young Person’s Act, the Juveniles Act, the Affiliation and Maintenance of Children Act, the Criminal Procedure Code and many more. However, it should be noted that these acts do give different ages in circumstances where they feel a child is responsible enough to understand what exactly the situation they are currently in requires of them. Section 14 of the Penal code gives the age of eight as the age of criminal responsibility of a child there is a presumption in law that a child under the age of eight (8) is incapable of committing an offence. This was demonstrated in the case of Walters’s v Lunt the respondents had been charged under Section 33(1) of the 1916 Act with receiving stolen property from a child aged seven years old knowing to have been stolen. The court held that a child under the age of eight was deemed in law to be incapable of committing a crime therefore the charge could not be proved. The Adoption Act defines an infant as a person who has not yet attained the age of twenty-one (21). In light of the acts that have been brought, one can note the differences in ages which could be quite difficult for an ordinary layman to note of if they do not have proper access to this knowledge, one could simply contend that if a child under the employment act is able to work at the age of fourteen why would it be no different for them to be legally allowed to get married at that age surely if they are able to understand the responsibilities at that age, why should it be no different with marriage? And this type of confusion relating to age is what is deemed to be particularly problematic. Certainly, could there be no universally recognized age under our jurisdiction that could solve this problem? Zambia is among the top 20 countries in the world with the highest prevalence rate of child marriages.

MARRIAGE IN CUSTOM AND THE LAW

Customs and traditions have vastly attributed to how the Zambian people make decisions. This is because they are a huge part of our society. That being so, they are recognized within our law hence us having a dual legal system provided that they are not repugnant to natural justice as per the precedent set in Kaniki v Jairus due to this customary marriage is recognized and guided by its own principles in accordance with the tribe it is conducted in. Some of the main requirements are parental consent, the payment of dowry and the giving away ceremony to complete this union dependent on the tribe, the requirement is that the girl has attained puberty in order for her to marry. Human metabolism and hormonal development are not the same for every female while others begin to show growth at older ages others can exhibit signs as young as twelve (12) years old but can one truly say that one can be ready for marriage at such a tender age? It’s been proven that parents have still gone ahead and arranged marriages for children at such tender ages which is something that should be dealt with within our jurisdiction.

The Government has tried to put measures in place such as the school re-entry policy to encourage adolescent mothers to return to school. However, if these policies and laws that have been set in the various acts and the constitution itself are not enforced by African traditional leaders through them setting by-laws and punishments to those who fail to adhere then this problem shall continue to persist. In as much as we have a dual legal system, there should law set that is applicable regardless of whether it’s under statutory or customary to criminalise child marriage and setting incarceration as a punishment this would act as a deterrent thus discouraging this practice in Zambia.

The economy and financial state of various families have proven to be one of the main reasons why certain families are driven to such irrational decisions hence improving the country’s economic stability can be a step in the right direction to aid this problem as well.

CONCLUSION

In summary, if adequate and efficient measures are not put in place in Zambia to address this issue children shall continue to be victims of the ongoing problem we continue to face which is early marriages.

LIST OF REFERENCES

STATUTES

The Constitution of Zambia (Amendment) of 2016

Marriage Act CAP 50 of the laws of Zambia

The Penal Code CAP 87 of the laws of Zambia

CASES

Kaniki v Jairus 1967 ZR 71

Walters v Lunt (1951) 35 Cr. App.R. 94

INTERNATIONAL INSTRUMENTS

The Convention on the Rights of the Child, Treaty Series, vol, 1577, November 1989

The African Charter on the Rights and Welfare of the Child CAB/LEG/24.9/49

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