sexual health and human rights in the african region - The ICHRP

[16] On the one hand, the Ugandan Constitution appears to only recognize 18 years
as the minimum age for marriage. 482 On the other hand, Uganda has
parliamentary legislation that cannot stand side by side with its Constitution
which prescribes 18 years as the minimum age. Uganda recognizes customary
law marriages under the Marriage of Africans Marriage Act, 483 and Hindu
marriages under the Hindu Marriage and Divorce Act. 484 Consent to marriage by
a person below 21 years can be given by parents under the Marriage of Africans
Marriage Act. The Hindu Marriage and Divorce Act prescribes 18 years for
males and 16 years for females as the minimum ages for entering into marriage.
[17] Zimbabwean law only provides for marriages under civil law 485 and under
African customary law. 486 Zimbabwe differs from all the other jurisdictions in the
sample in that it does not make any provision for religious marriages
notwithstanding that it has sections of the population that practice marriages
under Islamic law. For marriages under civil law, females under 16 years and
males under 18 years require the consent of their parents to enter into a
marriage. 487 Customary law does not prescribe a minimum age for marriage but
where the female is below 18 years, it requires parental consent and an
agreement to pay bridewealth. 488
[18] Like most of its African counterparts, Nigerian domestic law recognises civil
marriages, customary marriages and religious marriages. In respect of civil and
customary marriages, Nigeria is unremarkable in the sense that it mirrors much
of the law of the other African jurisdictions. What is distinctive, however, about
Nigeria is the predominance of religious marriages under Islamic Shari’ah in
majority of the northern states of Nigeria. Islamic Shari’ah in Nigeria subscribes
to the Maliki school of thought. 489
[19] All schools of Islamic jurisprudence do not countenance the notion of forced
marriage. A marriage is a contract between two parties - mithaq - that freely
consent to it. According to the Qu’ran a widowcannot be compelled to marry and
neither can a child. Indeed, where consent has not been obtained, the coerced
party is given power to annul the marriage. 490 Under the Maliki jurisprudence,
which is followed by the northern Nigerian states, mutual consent is a
482 Article 31(1) of the Constitution of Uganda
483 Marriage of Africans Act (Uganda).
484 Hindu Marriage and Divorce Act (Uganda).
485 Marriage Act (Zimbabwe).
486 Customary Marriages Act (Zimbabwe).
487 Sections 20 and 22 of the Marriage Act (Zimbabwe).
488 Sections 4 and 7 of the Customary Marriages Act (Zimbabwe).
489 See discussion in Chapter 1 of this study.
490 Ibid.
143