Tanzania high court upholds ruling to end child marriage despite attempts to repeal it

Schoolgirls in Tanzania pose for a photo on July 10, 2007. Photo by Fanny Schertzer, used with permission via Wikimedia Commons, CC BY 2.0.

In October 2019, Tanzania's high court upheld the landmark 2016 ruling that increased the minimum age of marriage for girls and boys to 18.

The Tanzanian government attempted to repeal this decision, claiming that girls mature earlier and marriage is a form of protection for pregnant young women, and should, therefore, be allowed to marry earlier than 18.

But on October 23, 2019, the Tanzanian government lost its appeal and the high court ruling remains: The marriage age for both males and females is 18, reinforcing the ban on child marriage in Tanzania. 

According to the United Nations Population Fund (UNFPA), Tanzania has one of the highest prevalence rates of child marriage in the world.

Netizens were quick to express their delight over the ruling. Some congratulated Rebeca Z. Gyumi, the petitioner and respondent behind this case. Gyumi is the founder and executive director of Msichana Initiative (Young Woman Initiative), a Tanzanian nongovernmental organization that empowers girls through education.

Mohammed Dewji, a businessman and former politician, applauded the decision as a win for girls in Tanzania:

Netizen Lydia Charles called it the “best decision ever made”:

The fight to end child marriage in Tanzania

In 2016, Gyumi challenged the constitutionality of the Law of Marriage Act, 2002 (LMA) that allowed females under the age of 18 to get married.

According to Tanzania Demographic and Health Survey (TDHS),  36 percent of women aged 25-49 get married before their 18th birthday compared to only 5 percent for men the same age.

The LMA allowed girls as young as 14 to get married with consent from a court and age 15 with the consent of the parents whereas 18 years was the minimum age for a male.

Through her attorneys, Gyumi argued that the LMA provisions were discriminatory for giving preferential treatment to males in the matter of eligible marriage age. They further argued that the provisions infringed the right to equality and they were too vague and too susceptible to arbitrary interpretation to deny female children their right to education.

Gyumi petitioned the High Court to find the provisions of LMA null and void.

The High Court never declared the provisions in the LMA null and void. But they found the provisions unconstitutional and gave the government one year to correct the anomalies in the LMA provisions. Through the attorney general, the government was directed to put 18 years as the eligible age of marriage for both females and males.

However, then-Attorney General George Masaju was aggrieved by the ruling and immediately served a notice of appeal to the High Court:

In September 2017, Masaju officially filed for an appeal against the 2016 ruling.

Official: I've been served government documents of appeal in the case of #childmarriage. Case number 204 of September 2017.

Grounds for appeal

In four months of court proceedings, the government sought to appeal the 2016 ruling that required the revision of the provisions LMA that allowed girls to be married at the age of 15. The appellant, represented by principal state attorneys, Mark Mulwambo and Alesia Mbuya, provided biological differences and customary and Islamic laws as grounds for the appeal.

Ms. Mbuya argued that biological differences put boys and girls in “different categories” and that therefore, the law treats them differently. She argued that because girls matured earlier, the law took that into consideration. She argued that marriage could protect unmarried girls who get pregnant at an early age.

Further, she argued the court erred by “equating the age of the child and the age of marriage,” meaning that the court should consider male and female children differently when it comes to marriageable age.

Netizens were quick to criticize the grounds the appellant provided in court.

Gender equality

The court’s ruling is a step toward eliminating harmful practices and ending all forms of discrimination against girls in Tanzania. According to the United Nations, in order to achieve gender equality by 2030, governments need to change discriminatory laws and adopt legislation that proactively advances equality. 

Data shows that the age of marriage is directly related to levels of education and wealth (TDHS 201).  In Tanzania, there is a 6-year difference between the age of marriage between girls with no education and girls with secondary or higher education.

In Tanzania, it is illegal to impregnate or marry schoolgirls with 30-year imprisonment as punishment. Pregnant schoolgirls are not allowed to return to school even after they have given birth.

The ban on child marriage will protect all girls, regardless of their school enrollment status. In Tanzania, child marriage bars girls from education and leads to school dropout, according to data from the Tanzania National Survey, 2017).

This ban creates better conditions for schoolgirls to finish school without barriers. Even so, impregnated schoolgirls are still faced with an unconstitutional ruling that prohibits them from returning to school.

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