ATTORNEY GENERAL V REBECA Z.

GYUMI: COURT OF APPEAL OF TANZANIA DECLARED SECTIONS 13 AND

17 OF THE LAW OF MARRIAGE ACT UNCONSTITUTIONAL

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 15th day 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 which 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

(1) 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 no 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 responded 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.

expression

Article 18. Freedom of Expression

Every person –

(a) has a 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 section 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. Four issues
were set for determination;

1. Whether sections 13 and 17 of The LMA contravenes Article 12 of the Constitution.

2. Whether section 13 (1) & (2) of The LMA are discriminatory thus contravene 13 of the
Constitution.

3. Whether section 17 of the LMA contravenes the right to equality and dignity of a person as
provided in Article 12 and 13 of the Constitution.
 4. 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.

1. 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.

2. That High Court erred in law in equating the age of the child with the age of marriage

3. That High Court erred in law by holding that customary and Islamic law does not apply in
matters stated in LMA

4. 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

5. 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.

Held

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.