ROBBING GIRLS OF THEIR CHILDHOOD AND INFANTILIZING WOMEN
Despite ratifying a number of international instruments, Tanzania has fallen short in the implementation of provisions guaranteeing the protections and rights of women and girls under the law without discrimination – including that of sex. The law review article Child Marriage and Guardianship in Tanzania: Robbing Girls of Their Childhood and Infantalizing Women details customary practices and domestic laws in Tanzania – in particular, child marriage and guardianship – that continue to violate the rights of women and girls, while exacerbating gender inequality.
Under the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, a child is defined as a person below the age of eighteen. However, the Law of Marriage Act in Tanzania, which was enacted in 1971 to “rectify inequalities in marriage”, has failed to prevent child marriage. By setting the minimum age a girl can be married to 15 (or 14 with court leave), contrary to boys whose minimum age of marriage is 18, the government has prioritized the education and overall well being of boys to that of girls. “In addition, both codified customary law and the Islamic Restatement Act permit marriage when a girl reaches puberty, which can be as low as the age of nine under Islamic law.”
Other limitations imposed solely on girls – in violation of equal protection laws – include the requirement of parental consent for girls to marry and a statute of limitations to challenge the underage marriage of girls. The latter limits a girl to file a petition for annulment before she turns eighteen. Yet, as a minor, a girl under the age of eighteen requires a parent or guardian to have standing in court. Recognizing the legal age to vote, own property, or even consent to sex as eighteen, for both girls and boys, marriage laws are a clear discriminatory act on the basis of sex which place an unbearable burden on girls.
These laws and practices not only force girls into early adulthood but also hinder them from developing into capable adults. A significant age gap between a girl and her husband creates an unbalanced power dynamic which exposes girls to inescapable and dangerous circumstances. Forced into early marriage, girls have a greater risk of death during childbirth, contracting HIV aids, and increased exposure to domestic violence.
Consequently, child marriage inhibits the full participation of women in the workforce. With little education and poor health, women oftentimes find themselves restricted to the informal sector and unable to economically progress.
Child marriage breaches a girls right to:
When enacted, the Law of Marriage Act bluntly bypassed the issue of guardianship in Tanzania. A common practice, guardianship laws have been put in place as a control mechanism over the lives of women. Under a guardianship, a male is allowed to “marry off and inherit adult women, assume decision-making power over their children [including the ability to remove them from their mothers care] and property, and control their movement and activities.” Stripping women of their decision-making capacity and promoting patriarchal norms, the practice of guardianship is based on the view that women are incompetent and unable to care for themselves or their children.
Women under guardianships are denied their fundamental rights and are regarded as lesser than their male counterparts. Guardianship laws create a cycle of dependency between women and their appointed guardian, essentially equating them to children. Furthermore, “guardianship undercuts women’s dignity by treating them as property to be transferred from one owner to the next…” By allowing men to have autonomous authority over the lives of women in their families and communities, Tanzania is endorsing an unequal and unjust society.
Guardianship breaches a woman's right to:
Freedom of Movement
According to the report, “religious practices that infringe on fundamental rights” are not protected under international law nor the Tanzanian Constitution – which states that “religion may not be exercised in a manner that causes interference with or curtailment of the rights and freedoms of other persons or the public interest”. Consequently, there are no grounds for the protection of harmful practices against women and girls. This report sets forth some legislative recommendations to remedy the violations caused by child marriage and guardianship in Tanzania, these include:
The minimum age of marriage for all individuals should be eighteen
There should be no exception to the minimum age of eighteen for marriage
Enforcement of the marriage laws must also be improved to ensure compliance with the minimum age requirement
The best interests of the child must be the paramount consideration in custody and guardianship determinations over children
To realize the equality and dignity to all citizens, a guardian may not be appointed over an adult woman who is not mentally incapacitated
Victims of child marriage should be given the right to petition a court for an annulment and damages before they reach the age of twenty-one