About three months ago, the Muslim Council of Tanzania (BAKWATA) expressed a clear objection to the ongoing demand for an amendment to the Law of Marriage Act (1971), leaving many activists and supporters of the agenda aggrieved.
Activists and human rights advocates have, for many years, contended that the law is discriminatory as it allows girls under the age of 18 to marry.
The High Court ruled in favour of this view in 2016, but the government appealed against it. Finally, in 2019, the court of appeal upheld the high court ruling, closing any judicial avenue the government could use (or abuse) to evade accountability.
Despite this historic milestone, a serious impasse has blocked the path towards amendment. This article examines the nature of the impasse.
Nature of the impasse
The underlying cause of the impasse, as I understand it, comes down to the question of the rights and welfare of the girls, particularly those that drop out of the formal education system before their 18th birthday.
Education is a key arbiter in this case because those that stay in the system, especially beyond secondary school, marry later, well beyond the contested threshold of adulthood.
To its credit, the government has invested significantly in physical infrastructure, implemented awareness campaigns, and raised budget allocations to increase school retention. Nonetheless, underage marriages remain notably high, even though the overall trajectory points towards a decline.
According to a 2022 Social Institutions and Gender Index (SIGI) report for Tanzania, 23 per cent of women (and 2.2 per cent of men) in Tanzania Mainland, and 26 per cent of women (and 3.4 per cent of men) in Zanzibar reported having married before 18.
As noted earlier, education is crucial in determining when marriage happens. Thirty-seven per cent of women with no formal education reported marrying before their 18th birthday.
Research shows underage marriages are even higher among less educated, rural women. In addition, rural women are more likely to be in relationships with multiple wives. Undoubtedly, underage marriages deny girls their right to education and interrupt their overall developmental potential.
However, a key cause of disagreement regarding the proposed amendment is the fate of underage girls who do not continue their formal education because the formal education system cannot absorb or retain them.
Proponents vs opponents
Proponents of the amendment of the Law of Marriage cite 18 years as the objective age of consent and point to risks associated with underage marriages, such as potentially higher maternal mortality rate, psychological effects, susceptibility to Gender-Based Violence, and potential inability to lead independent and decent lives when a marriage fails.
Most importantly, they refer to the High Court ruling that the discrimination is unconstitutional and contradicts the spirit of international conventions that define 18 years as the threshold for adulthood, which Tanzania has ratified.
This group, which is quite visible and vocal, subscribes to the universal conception of human rights. It includes civil society (mostly NGOs), activists, development partners, and a section of faith groups.
Those objecting to the amendment are less vocal and visible but seem notably influential. Their arguments are anchored on cultural relativism, especially concerning religious teachings (i.e., marriage at puberty), customs, and traditions.
The discrimination, as embodied by the contested law today, is the result of the codification of these aspects. In their appeal against the High Court ruling, government lawyers described marriage as an institution protected by law and a better alternative for underage girls outside the formal education system.
In other words, as argued by a BAKWATA lawyer recently, underage girls outside the formal education system and fall pregnant outside the institution of marriage face a precarious situation.
It is worth noting that BAKWATA has been open to reducing the age of marriage to as low as 11, three years below the current lower limit. At the same time, proponents of the amendment prefer raising it to 18, without exceptions, as ordered by the court.
Based on this difference of views, an obvious compromise would be an amendment allowing exceptions, which is unacceptable to the proponents.
The divergence of views, as highlighted above, underpins the silent impasse referenced at the beginning of this article. Nevertheless, legal and Constitutional Affairs Minister Damas Ndumbaro informed the parliament in April that the government was ‘ready’ to table an amendment bill, creating an impression all hurdles, including objections by BAKWATA, had been cleared.
Nonetheless, efforts to achieve some consensus have continued through seminars and workshops, with little indication that either side is willing to budge.
Saddled with two opposing viewpoints, a key challenge for the government is balancing the rule of law and political expediency. While Tanzania is a secular state, the existing political settlement is a function of accommodating religious and traditional sentiments.
Based on this logic, the government is not neutral. Regarding followership, mainstream religious institutions tend to have a stronger stranglehold on their members than civil society organisations. In this sense, religious institutions can easily mobilise and, for instance, influence voting opinions.
This is, therefore, not a group that the government can easily ignore, especially when it opposes policy change. Unfortunately, due to this reason, it is not clear how the impasse will break.
Because of strong religious and cultural undertones that underpin the age of marriage debate, it will be a huge advocacy feat if proponents of change end up securing an amendment that does now allow any exceptions.
There have been indications the government might seek to table an amendment bill by September. But, of course, anything could happen between now and then.
The process of writing a New Constitution is likely to resume soon. It could constitute another avenue for continuing the struggle against underage marriages, regardless of whether the efforts to amend the specific law lose momentum or succeed. If anything, the arc of history is likely to favour the proponents.
Dastan Kweka is a governance specialist, analyst and writer. He’s available at email@example.com or on Twitter as @KwekaKweka. These are the writer’s own opinions and do not necessarily reflect the viewpoints of The Chanzo. Do you want to publish in this space? Contact our editors at firstname.lastname@example.org for further inquiries.