Lawyers have expressed different opinions on the High Court's decision, nullifying some provisions under the Marriage Act, allowing a girl under the age of 18 years to get married.
While some of the advocates support the judgment, saying it has come at the right time, others are on the contrary, claiming that many societies practising the custom would be highly affected, notably the Muslims.
The Attorney General (AG), Mr George Masaju, who is the government's chief adviser on legal matters, could not be reached for comment on the court's decision as his mobile phone kept on ringing without being answered when contacted on several occasions.
Advocate Hudson Ndusyepo is the first lawyer to open the debate on this matter. He told the 'Daily News' in an interview that he has been impressed by the decision which has come up with a clear position on the matter which has been under criticism for a long time.
He explained that when comparing rights for children in other laws, a child cannot enter into contract and he or she does so through a guardian and even the guardian would be involved in the transaction without seeking consent of the child.
"Under this decision, children rights will be protected. The Marriage Act was forcing the girl under 18 years to enter into a marriage contract, while such contract is entered upon consent of parents or guardian, while such guardian is not part to the terms and conditions of the contract," the lawyer said.
Mr Ndusyepo, who was a trial attorney before jumping out of the prosecution's wagon to the defence side pointed out further that the Marriage Act had given obligations to the child to perform the marriage contract, while such child was not recognized by the law.
Former President of the Tanganyika Law Society Mr Francis Stolla went extra miles, arguing that it is a cardinal principle of law that in every general rule, there must be exceptions. He is quick to point out, however, that the nullification of the provisions in question was not supposed to be absolute. According to him, the court was supposed to leave a certain room to accommodate some of circumstances that may arise in the society.
However, he said, he agreed with the findings of the court because under normal circumstances nobody was required to consent on someone else's behalf. "The consent must come from a particular person, especially to children because they are presumed to lack that requisite capacity to consent.
Therefore, no person should consent on behalf of a person who has no ability and capacity to consent and for this matter, for marriage," the seasoned lawyer said. Mr Stolla was, however, so critical on part of implementation of the court's decision in particular when the girl under the age of 18 years get pregnant and the child who is expected to be born would be entitled to the parental care for both sides, that is, mother and father.
"If the general rule remains absolute, then the child born will be illegitimate for that matter, while if there were exceptions, that marriage would be allowed for the purpose of giving right to the newly born child," he said.
He pointed out further that such kinds of practices have been there for a long time and he could not know whether the judges had taken into consideration the circumstances prevailing in the society. He was of opinion that the law should not seal the house without leaving a fire exit.
Advocate Yahaya Njama criticized the High Court decision, claiming that it has an adverse impact and would affect the majority in the society especially tribes and regions which are still practising such customary procedures, including Muslims and that the judges never considered what prevails in society.
He pointed out that the Islamic law allows girls under the age of 18 years to get married and the court decision was a result of an action by human right activists, who did not represent the whole society including those involved in the customs.
"Furthermore, these communities were not involved in the matter. There is no proof that efforts were made to make members of the community to be affected to be aware of the proceedings. As a result, they have been condemned unheard," Mr Njama, also a seasoned lawyer, said.
Advocate Daim Khalfan also criticized the decision in question because the marriage under 18 years was not a mandatory requirement, as there were some conditions in place for one to contract such kind of marriage for the same to be valid.
He explained further that there was no proof showing that the reasons that had enabled the enactment of the provisions to allow marriage of girls under the majority age do not exist at the moment. According to him, it should be noted that the Marriage Act was a result of collection and alignment of several other laws relating to marriage or family law like customary law, religious laws and some society laws. "That is why 14 years of age for some societies is possible.
Therefore, there were no cogent and compelling reasons to strike the provisions. The Marriage Act was subjected to white paper and scientific research which led to its enactment.
If there was something wrong, it was imperative to conduct a similar research to involve all necessary communities, which are applying the laws allowing the marriage under the age of 18 years and not to rush to nullify the provisions concerned," the advocate concluded.
Recently, a High Court panel comprising former Principal Judge Shaban Lila, Sekiet Kihiyo and Ama Munisi nullified sections 13 and 17 of the Tanzania Law of Marriage Act, which allow girls to marry at age 15 with parental permission and at age 14 with the permission of a court.
They ruled that the provisions were unconstitutional and, therefore, gave the Attorney General one year from the date of the decision within which to make arrangements for amendments of the law to put the age of 18 years as minimum for one to contract marriage.
Such decision was a result of a case which was filed earlier this year by Rebeca Gyumi, who is the director and founder of the Msichana Initiative. The organisation advocates for the rights of women and girls, claiming that the persistence of child marriage is a threat to an already vulnerable group in society.
The court ruling follows a series of new legal measures, adopted by the Tanzanian government, that make it a crime to attempt to marry school-going children under 18, as well as any "person who impregnates a primary school or a secondary school girl."
The Court pointed out that while the Law of Marriages Act may have been enacted with good intentions in 1971, this intention is no longer relevant because the effect of the Act now is to discriminate against girls by depriving them of opportunities that are vital for all citizens.
Source: Tanzania Daily News