The constitutionality of the Johanne Marange Apostolic Church doctrine of marrying off young girls and covering up alleged sexual abuse among congregants is now under the spotlight after gender activists sued the church and its high priest Noah Taguta for allegedly violating girls and women’s rights.
Precious Nyaradzo Musarurwa, Linda Masarira and Munyaradzi Midzi, through their lawyer Ms Jacqueline Sande, have launched the suit at the Constitutional Court seeking urgent alignment of the Marriages Act and the Customary Marriages Act with the Constitution within six months to protect girls under 18.
The proposed Marriages Bill, which does bring both civil and customary marriages into a single law and insists that both parties to any marriage must be at least 18 and both consenting, has been bogged down in Parliament for much of this year and will have to be reintroduced in the next session when it is now likely to pass after the Government conceded that customary unions, although not civil marriages, need a lobola element.
In the law suit that is likely to help intensify pressure for the new legislation, the Ministers of Justice Legal and Parliamentary Affairs, of Home Affairs and Cultural Heritage and of Women’s Affairs, Community, Small and Medium Enterprises Development were also listed as respondents in their official capacities along with the Attorney General of Zimbabwe. .
The application is based on the recent incident where a 15-year-old Annah Machaya died while giving birth at a Johanne Marange shrine in Manicaland.
The Constitutional Court will first rule on whether the three have the legal right to directly approach the court with their case, before getting into the merits.
They also seek to push the Government into expediting the amendment of the marriage laws to criminalise child marriages and intimacy involving children before the age of consent.
The Constitutional Court some five years ago, outlawed marriage of children under 18 years but the age of sexual consent in terms of the Criminal Law Codification Reform Act remained at 16 years. The three want it raised to 18 years to fit in with the minimum marriage age.
In the application, the applicants argued that the church’s doctrine was unlawful and any members caught on the wrong side of the law must be arrested and charged without fear or favour.
The three argue and allege that the Johanne Marange Apostolic Church doctrine and other doctrines have been used to deceive and coerce girls and women to take part in sexual activities, childbearing and more through forced marriages without facing any legal consequences for their allegedly unlawful acts.
The three argue in their papers filed at the Constitutional Court that the unconstitutionality of such practices by individuals but most notably, religious sects like the Johanne Marange Apostolic Church who practice child marriages, sexual exploitation and other forms of abuse affecting girls and women and depriving them of their rights. They further argue that the existence of child marriages, some six years after the Constitutional Court judgment, should be blamed on the Government which did not speed up the alignment process.
The existence of early child marriages and pregnancies is evidence that there is a gap that the law needs to cover in order to protect girls against such discrimination.
Girls are entitled to effective protection by the courts as the upper guardian of the rights of children which is responsible for enforcing the fundamental rights designed for their protection and has a duty to ensure alignment of all the other laws to the Constitution of Zimbabwe and the relevant international laws, reads the papers.
However, Government through The Attorney General’s civil division argued that the order being sought is incompetent because Parliament was already dealing with the amendment of the laws in question.
At this juncture, respondents would like to highlight that already the Parliament of Zimbabwe is in the process of enactment of the new Marriages Act which has been deliberated by the National Assembly and has now reached Senate. The ministers named and the Attorney General no longer have any control of the pace at which lawmakers consider the Bill.
To that end, the nature or the order being sought by the applicants is incompetent since the four officials can no longer control the process due to the doctrine of separation of powers, reads the notice of opposition.
It was also argued that the matter of Annah Machaya complained of was already in the criminal court with suspects being charged. The Herald