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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.16 n.2 Pretoria  2016 



Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others: A review



Julia Sloth-NielsenI, *; Kuda HoveII, **

IProfessor, Department of Public Law and Jurisprudence, University of the Western Cape, South Africa
IILegal Researcher, Veritas, Zimbabwe




This article reviews the recent judgment of the Constitutional Court of Zimbabwe in Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others, which has been hailed with acclaim worldwide. The review highlights three areas where the judgment makes a significant jurisprudential contribution: first, with respect to the issue of standing to bring a constitutional challenge under the Zimbabwean Constitution; second, with respect to the use of international treaty law and foreign case law; and third, in its purposive approach to the interpretation of the relevant constitutional provisions relating to child marriage. The regional impact of the decision is also considered in relation to recent litigation in Tanzania.

Key words: locus standi; international law; marriage; children's rights; constitutional interpretation



1 Introduction

In 2013 Zimbabwe enacted a new Constitution. The new Zimbabwean Constitution has a strong bias towards the protection and promotion of human rights. Chapter 4 of the Constitution is entitled 'Declaration of Rights' and enshrines the rights of Zimbabwean citizens and residents. The article discusses the constitutional advances brought about by the finding in Mudzuru & Another v the Minister of Justice, Legal and Parliamentary Affairs & 2 Others.1 Three areas where the judgment arguably makes a significant jurisprudential contribution are highlighted, namely, (i) with respect to the issue of standing to bring a constitutional challenge under the Constitution of Zimbabwe; (ii) with respect to the use of international treaty law and foreign case law; and (iii) its purposive approach to the interpretation of the relevant constitutional provisions relating to child marriage.

The case revolved around a constitutional challenge to the Marriage Act2 and to the Customary Marriages Act.3 The former, in section 22(1), prohibited the marriage of a boy under the age of 18 and a girl under the age of16 years, except with the written permission of the Minister of Justice if he or she considered such a marriage desirable. This entailed permitting child marriages and establishing a different marriage age for boys and girls. The Customary Marriages Act sets no minimum age for a customary marriage, thus, according to received wisdom, that the minimum age for marriage is the attainment of puberty. A constitutional challenge was brought by two Zimbabwean women who had been in a union since an early age. They sought to have child marriage under both civil and customary law declared in violation of various sections of the Zimbabwean Constitution. Based on an analysis of the consequences of child marriage, and relying on treaty law and foreign case law in its interpretation of the applicable constitutional sections, the Constitutional Court found that from the date of the judgment, no marriage of a person below the age of 18 years would be legal. The ruling applies equally to girls and boys.


2 Locus standi to pursue a constitutional case

The Mudzuru matter is an example of litigation instituted in the public interest. Public interest is defined as4

something in which the public, the community at large, has some pecuniary interest or some interest by which their legal rights or liabilities are affected. It does not mean anything as narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government ...

A 2009 paper5 describes public interest litigation as 'an expression for the sufferers of silence' as well as 'a blessing to the downtrodden, oppressed sections of society'. Acting in the public interest requires that the applicant in the case has adequate locus standi. Locus standi refers to standing or the right to approach a court directly to seek appropriate relief in cases arising from an alleged infringement of a fundamental human right or freedom enshrined in Chapter 4 of the Constitution. How public interest litigation widens the interpretation of the locus standi principle is discussed later in this section. Persons specified under section 85(1) of the Constitution have the right to approach a court directly. Section 85(1) provides:6

(1) Any of the following persons, namely -

(a) any person acting in their own interests;

(b) any person acting on behalf of another person who cannot act for themselves;

(c) any person acting as a member, or in the interests, of a group or class of persons;

(d) any person acting in the public interest;

(e) any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this chapter has been, is being or is likely to be infringed and the court may grant appropriate relief, including a declaration of rights and an award of compensation.'

The Mudzuru judgment sets out the applicant's cause of action based on a claim7

that the fundamental rights of a girl child to equal treatment before the law and not to be subjected to any form of marriage as enshrined in section 81(1) as read with section 78(1) of the Constitution have been, are being and are likely to be infringed if an order declaring section 22(1) of the Marriage Act and any other law authorising child marriage unconstitutional was not granted by the Court.

The first locus standi issue the bench had to decide was in which capacity the applicants acted in claiming the right to approach the court in relation to the allegations they had made.8 In claiming locus standi under section 85(1) of the Constitution, a person should act in a single capacity when approaching a court, and not in two or more capacities in one proceeding, as the applicants in this matter had attempted to do when they based their application on both sections 85(1)(a) and 85(1)(d).9

The respondents (the Minister of Justice, Legal and Parliamentary Affairs) correctly submitted that, although the applicants claimed to have been acting in their own interests in terms of section 85(1)(a) of the Constitution, the facts showed that they had failed to satisfy the requirements of that provision. According to the respondents, the rule requires that a person claiming the right to approach the court using section 85(1 )(a) must show on the facts that he or she is the victim, or there must be harm or injury to his or her own interests, arising directly from an infringement of the fundamental right or freedom of another person. In other words, the respondents sought a narrow interpretation of locus standi, an interpretation which required that the applicant must have a direct relationship with the cause of action.

Both applicants in the Mudzuru matter fell pregnant before the age of 18. Having fallen pregnant, they proceeded to live with the families of their respective partners, but neither of their pregnancies led to any of the applicants entering into a formal or customary marriage. In other words, neither of the two applicants was a victim of child marriage (strictly construed), which was the reason why they could not prove a direct relationship to the cause of action. Moreover, when they approached the court, they were no longer under 18 years of age and, therefore, were no longer children (as constitutionally defined in section 81(1)). The applicants thus failed to meet the standard of locus standi based on the requirement of proof by the claimant that he or she had been or was a victim of infringement, or threatened infringement, of a fundamental right or freedom enshrined in Chapter 4 of the Constitution. The applicants' papers further did not refer to any particular girl or girls whose rights had been, were being, or were likely to be infringed by being subjected to child marriage, whether such marriage was concluded in terms of section 22(1) of the Marriage Act or any other law.

In legal matters heard under the previous Zimbabwean Constitution, standing usually was interpreted in the traditional narrow manner, and no one could ordinarily seek judicial redress for legal injury suffered by another person, the only exception being when a person was unable to seek relief because they were in detention. However, the Zimbabwean Constitution liberalised and gave the locus standi principle a much more generous interpretation. This means that a court exercising jurisdiction under section 85(1) of the Constitution could adopt a broad and generous approach to standing. In the Mudzuru matter, the bench chose a wider interpretation of locus standi. This wide interpretation followed Canadian case law,10 which effectively states that an applicant may act even in instances where he or she has only an indirect interest in the outcome of the matter. This interpretation was a step forward in implementing the current constitutional provisions related to standing. A wider interpretation means that the standing rule no longer serves as an overly-restrictive tool used for 'narrowing the road to litigation'.11 Instead, the locus standi principle, when widely interpreted, gives anyone with a sufficient direct and indirect interest in a matter the right to be heard before an appropriate court of law.

While it was held that the applicants had failed to meet the requirements for establishing locus standi based on section 85(1)(a), the Court held that the applicants could nevertheless act in terms of section 85(1)(d) of the Constitution. The respondents' argument that the applicants were not entitled to approach the Court to vindicate public interest in the well-being of children protected by the fundamental rights of the child, enshrined in section 81(1) of the Constitution, overlooked the fact that children are a vulnerable group in society whose welfare constitutes a category of public interest. Actions brought in terms of section 85(1)(d) of the Constitution seek to protect the public interest adversely affected by the infringement of a fundamental right. According to the Court:12

The right to a remedy provided for under section 85(1) of the Constitution is one of the most fundamental and essential rights for the effective protection of all other fundamental rights and freedoms enshrined in Chapter 4.

Hence, in the event of a proven infringement of a fundamental right, the right to a remedy provided for by section 85(1) of the Constitution becomes an effective tool for the protection of fundamental rights and freedoms enshrined in Chapter 4. Section 85(1) of the Constitution in its current form ensures that formal defects in the legal system are overcome, thereby guaranteeing13

real and substantial justice to every person, including the poor, marginalised, and deprived sections of society. The fundamental principle behind section 85(1) of the Constitution is that every fundamental human right enshrined in Chapter 4 is entitled to effective protection under the constitutional obligation imposed on the state. The right of access to justice, which is itself a fundamental right, must be availed to a person who is able, under each of the rules of standing, to vindicate the interest adversely affected by an infringement of a fundamental right, at the same time enforcing the constitutional obligation to protect and promote the right or freedom concerned.

According to the Court, the section 85(1)(d) procedure should, however, never be used 'to protect private, personal or parochial interests since, by definition, public interest is not private, personal or parochial interest'.14 This requirement is necessary to guard against frivolous and mala fide applications brought before the courts, not in an attempt to seek justice, but to waste time or actually impede the carrying out of justice. It is imperative, therefore, for the applicants' cause of action to show that the proceedings are in the public interest. However, it does not need to be shown that a significant section of the community is affected.15 Public interest is a value-laden concept which is not defined in section 85(1)(d) of the Constitution. The courts have preferred to leave the definition of public interest open, instead preferring to determine the question of public interest on a case-by-case basis. Since most violations of fundamental human rights and freedoms are fact and context-specific, it is appropriate to keep concepts such as 'public interest' broad and flexible to develop in line with changing times and social conditions reflective of community attitudes. The concept is elastic and relative rather than fixed and absolute. Whether a person is acting in the public interest is a question of fact.16

This approach to section 85(1)(d) of the Constitution does not mean that public interest is 'that which gratifies curiosity or merely satisfies appetite for information or amusement'.17 There is a difference between 'what is in the public interest' and what is of interest to the public. Matters of public interest that affect fundamental rights and freedoms include, for example, public health; national security; defence; international obligations; proper and due administration of criminal justice; independence of the judiciary; observance of the rule of law; the welfare of children; and a clean environment, among others.18On the other hand, matters that are of interest to the public are often matters that arouse the public's curiosity, for example, a scandal involving a person widely known in that society. Whereas matters in the public interest involve the protection and promotion of fundamental rights of a section of society, matters of interest to the public do not revolve around the protection or promotion of any rights.

According to the Court, the paramount test in public interest cases should be whether the alleged infringement of a fundamental right or freedom has the effect of prejudicially affecting or potentially affecting the community at large or a segment of the community. The test covers cases of marginalised or underprivileged persons in society who, because of reasons such as poverty, disability, socially or economically disadvantaged positions, are unable to approach a court to vindicate their rights. A public interest action will usually involve forgoing personal benefit to benefit a greater good to achieve the goals of social justice.19 Children fall squarely in this category of potential beneficiaries.

The broad interpretation given to locus standi in Madzuru bodes particularly well for future actions brought to further the interests of vulnerable groups based on alleged constitutional infringements. These could include advancing women's rights, children's rights, the rights of the elderly, persons with disabilities and veterans of the liberation struggle, all of whom have dedicated provisions attaching to them in Part 3 of Chapter 4 of the Constitution. Other vulnerable groups, such as migrants, cannot be left out of the equation either. This has also introduced certainty in the role played by public interest litigation in relation to breathing life into the provisions of the Zimbabwean Constitution, in that anyone with a direct or indirect interest can move to have constitutional rights protected and upheld.


3 Reliance on international treaty law and foreign law

3.1 Treaties

In the three years following the enactment of the Constitution, the courts have already relied on international law and treaties to deal with alleged violations of a Chapter 4 right. For example, in the case of S v C (A minor),20the Court relied on international law and treaties, excerpts of which are quoted at length in the judgment, to test the constitutionality of a sentence of corporal punishment imposed upon a juvenile offender. In this case, corporal punishment was found to be a violation of the international law principles protecting children's rights, such that the court held that corporal punishment was an unconstitutional method of punishing juvenile offenders. This led the court to strike down the offending