There are so many “Lamentations” about underage marriages by various sectors of the society but no one seems to want to hit at the real solution by seizing the bull by the horns and wrestle it to the ground. This article or open letter is a contribution towards how to try to solve the problem of underage marriages.
It has often been said that a centuries old problem cannot be solved with one stroke of a pen. This adage is wrong when it comes to solving the problem of underage marriages. This problem can indeed be solved with one stroke of the legislative pen; simply criminalise engagement in underage marriages for both sexes who engage in this activity and the parents of the underage girl child.
Let’s begin at the beginning. Article 7 of the Constitution of Zambia, that being Amendment No. 2 of 2016 states that one of the repositories of Zambian Law is “customary law that is consistent with the Constitution”. Customary law allows underage marriages. Under customary law, a man can marry a girl child as young as 12 years old and they become husband and wife. Marriage under customary law generally consists of girl and parental consent and the payment of lobola or the performance of some rituals that signify marriage. Some visible customary signals of transition from girl singleness to married status have to happen for the marriage to be recognised. It is not by stealth, though this sometimes can happen, especially in urban areas. In the village, it is difficult to conceal a marriage.
Is customary law that permits underage marriage inconsistent with the Constitution and therefore null and void under the Constitution? Customary law has to be consistent with the Constitution for it to be an acceptable vehicle constitutive of Zambian law. Alas this is where all those lamenting about the grave prevalence of underage marriages fail us. A lot of people in positions of power wail about this phenomenon but they refuse to go to the root of the problem. Instead they grandstand by retrieving these girl children from their marriages for purposes of these children going to school. They just tackle the symptoms but not the source of this reality, a mode of practice that is allowed by customary law and this has been so for centuries and is so far consistent with the Constitution and other laws of Zambia, for example the Penal Code.
There are no consequences for the men who marry underage children, nor should there be because this customary practice is legal. There are no consequences for the parents of the girl child because this practice is legal. There are no consequences for the girl child because this practice is legal. We cannot bury our heads in the sand like ostriches do to avoid problems.
The customary practice of underage marriage has long been judicially sanctioned in the case of Chinjamba, a 1940s case in Northern Rhodesia as Zambia was then called. A Village headman by the name of Chinjamba was convicted at trial of the crime of omission to tell the authorities that a Villager by the name of Njamba had engaged in carnal knowledge of an underage child. His evidence was that he couldn’t report the matter because the couple were married under customary law. The British had permitted the existence and continuation of the “dual legal system”: customary and so-called “modern” civil/British law. The dual legal system continued in Zambia after independence. The Court of appeal in Chinjamba set aside the conviction and that case has never been overturned by the Supreme Court of Zambia or the Constitutional Court of Zambia in any case. That remains the law. As long as a person is legally married under customary law to an underage child, no person, including the husband and parents of the child or the child herself, can be charged and convicted of the offence of having carnal knowledge, defilement, permitting underage marriages or participating in underage marriages or whatsoever prohibited behaviour the human mind can invent in relation thereof.
The Constitution and the Penal Code drafted by our learned Parliamentarians with various incarnations since the Chinjamba case of 1949 have avoided outlawing or criminalizing underage marriages. No one has sought a new constitutional attack through a “test case” to determine whether underage marriage is consistent with our Constitution. As stated above, our Constitution as amended recognizes the force of customary law that is consistent with the Constitution. Neither has anyone been criminally charged under the Penal Code for marrying an underage child. That charge cannot stand because of Chinjamba and Chinjamba is good law as it has not been set aside by higher courts nor has the law been amended criminalizing the customary law practice of marrying girl children under 16 years old. Let’s repeat once again to drive the point home: underage marriages under customary law, are legal. This customary practice is so far consistent with the Constitution. This customary practice is not prohibited by the Penal Code or under any other law or precedent in Zambia.
All the roads lead to Parliament as far as the problem of underage marriages are concerned. Why has Parliament not done anything about this customary, legal and constitutional issue? There are many lawyers in Parliament, the President is a lawyer and a good number of parliamentarians are studying law. They are all without exception aware of Chinjamba, a case among many others that is taught in first year Criminal Law class. All these lawyers know that a case like Chinjamba can be rendered impotent by new legislation by criminalising old legally permissible practices. The Penal Code can be amended to prohibit marriages of underage children under whatsoever circumstances. The Constitution can also be amended specifying the minimum age for legal marriage.
The question is: can the legislature amend the laws to criminalize or prohibit underage marriages? They have not done so since the dawn of colonialism and independence. They have all let Chinjamba continue to be good law. They recently (2016) recognized customary law, inclusive of underage marriages as being consistent with the Constitution and therefore as the repository of Zambian laws.
The legislatures, both colonial and post-colonial feared or fear mayhem if they criminalized underage marriages. It will strike against the hard rock of a popularly engaged-in customary practice whose criminalization would be honoured more in breach and violation than in conformity. Law abhors open rebellion against itself. Law does not want to be regarded as illegitimate. Enforcing the law on this would be a nightmare. How many people could Zambia send to prison on this?
What however, we cannot afford to continue doing is to allow the stakeholders to browbeat their chests and wail about the entrenchment of underage marriages and pretend as if they don’t know where the key to the solution of the problem is. They know it. The problem can begin to be solved by a legislative stroke of a pen. The problem of enforcement is another step, which we can discuss after crossing the bridge. We have laws that are on the books that are not enforced. For example we have laws criminalizing tribalism and racism, which we don’t enforce but their existence in the books is a statement that tribalism and racism are criminally and morally repugnant and we have the intention to punish them. Occasionally, we stir into action and charge people like Chishimba Kambwili with offences against laws we have hardly ever enforced like the crime against racism. Law is always there as a deterrent. So let the legislatures criminalize the practice of underage marriages and enforcement will take its own course. A journey of a million miles starts with one step.
Dr Munyonzwe Hamalengwa teaches Criminal Law and Law of Evidence at Law School.