In the case of Attorney General v Rebeca Z. Gyumi Civil Appeal no. 204 of 2017 Court of the Appeal of Tanzania At Dar es Salaam, on its judgment delivered on 15thday of October 2019 declared sections 13 and 17 of the Law of Marriage Act [CAP 29 R.E 2002] (LMA) unconstitutional and ordered the government to cause the amendment of The LMA within one year.
The said sections which declared unconstitutional provides as follows;
Section 13. Minimum age
(1) 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 the 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 that make the proposed marriage desirable.
(3) A person who has not attained the apparent age of eighteen years or fifteen years, as the case may be, and in respect of whom the leave of the court has not been obtained under subsection (2), shall be said to be below the minimum age for marriage.
Section 17. Requirement of consent
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; or
(b) if her father is dead, of her mother; or
(c) if both her father and mother are dead, of the person who is her guardian, but in any other case, or if all those persons are dead, shall not require consent.
(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).
Facts of the Case
This is the constitutional appeal originated from the judgment of the High Court of Tanzania at Dar es Salaam in Misc. Civil cause No. 5 of 2016. In the High court, the appellant herein challenged the provisions of sections 13 and 17 of LMA (as cited above).
The respondent argued that the said provisions contravene Article 12, 13, and 18 of the Constitution of the United Republic of Tanzania 1977, (The Constitution).
For ease of reference, I will reproduce the wording of those Articles as follows;
Article 12. The Right to Equality
(1) All human beings are born free and are all equal.
(2) Every person is entitled to recognition and respect for his dignity.
Article 13. Equality before the Law
(1) All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law.
(2) No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect.
(3) The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law.
(4) No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office.
(5) For the purposes of this Article the expression “discriminate” means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, color, religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word “discrimination” shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities in the society.
(6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely:
(a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned;
(b) no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence;
(c) no person shall be punished for any act which at the time of its commission was not an offence under the law, and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed;
(d) for the purposes of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to criminal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence;
(e) no person shall be subjected to torture or inhuman or degrading punishment or treatment.
Article 18. Freedom of Expression
Every person –
(a) has freedom of opinion and expression of his ideas;
(b) has out right to seek, receive and, or disseminate information regardless of national boundaries;
(c) has the freedom to communicate and a freedom with protection from interference from his communication;
(d) has a right to be informed at all times of various important events of life and activities of the people and also of issues of importance to the society.
The Appellant prayed the court to declare sections 13 and 17 of The LMA provision null and void, must be removed from the statute and 18 Years old should remain the minimum age for marriage.
Issues for determination
Four issues were set for determination;
- Whether sections 13 and 17 of The LMA contravenes Article 12 of the Constitution.
- Whether section 13 (1) & (2) of The LMA are discriminatory thus contravene 13 of the Constitution.
- Whether section 17 of the LMA contravenes the right to equality and dignity of a person as provided in Articles 12 and 13 of the Constitution.
- Whether section 13(2) of LMA is too vague and susceptible to being arbitrarily construed to deny female children their right to education which is the cornerstone of the freedom of expression as stipulated under Article 18 of The Constitution
In response to those issues and Appellant prayers, The High Court held that
The government, through the Attorney General, within one year from the date of the decision, to correct the complained anomalies within provisions of Section 13 and 17 of the LMA and put 18 years as the minimum age for marriage for boys and girls.
The Attorney General aggrieved by that decision, He appealed to the Court of Appeal and prays the court to quash the decision of the High Court and declare that Section 13 and 17 of the LMA is constitutional, basing on the following grounds.
- That High Court erred in law in holding that section 13 and 17 LMA are discriminatory for giving preferential treatment regarding the eligible ages of marriage between girls and boys.
- That High Court erred in law in equating the age of the child with the age of marriage
- That High Court erred in law by holding that customary and Islamic law does not apply in matters stated in LMA
- That High Court erred in law by holding that with various legislative developments that have taken place, it is unexpected to have valid and competent applications filed in court seeking leave under Section 13(2) and 17(2) of the LMA
- That High Court erred in law by holding that Sections 13 and 17 of the LMA have lost their usefulness thus they deserve to be declared null and void.
The Court of Appeal found that the entire appeal has no merit. The appellant is supposed to abide by the order of the High Court to causing the amendment of the LMA as directed.