DISTINGUISH BETWEEN WHAT IS GENERAL AND WHAT SHOULD BE INCLUDED IN THE CONSTITUTION
I think that in our bid to protect our children we should be humble enough to know what constitutional content is and what is general law. Our Constitution cannot cover the general law or else it ceases to be the Constitution and becomes the general law.
And I notice that when people are imbued deeply in activating for a cause they tend to ignore process. At the end of this I am going to suggest a very radical yet conventional way of treating the right to marry which, if followed, would help a better protection of the rights of a child!
HUMAN RIGHTS ARE RIGHTS AND HUMAN
Notice that the right to marry is indivisible only one sense because it is expressed as a right, an entitlement, something that must be had, something that is innate to humans, something that it is human to have, something that must not be taken away from you.
In that sense every human irrespective of status (young and old), creed, or colour must have them! That is as true for the right to marry. If you state from the rights perspective in relation to children, it must be that they have the right. Short of that you speak in negative terms and in negative terms you would have a problem.
You would have to say that children do not have the right to marry! You cannot say that in the Constitution whose aim is to provide, recognise, explain, and adumbrate the right. You do not express rights with status qualifications. I want you to see how in the Constitution they dealt with the right vote, where it is creating the right!
THE RIGHT TO VOTE
Expressed as aright in the Constitution, the right is expressed in absolute terms. Here it is in section 40 (3)
“Save as otherwise provided in this Constitution, EVERY PERSON shall have the right to vote, to do so in secret and to stand for election for public office.”
There is no qualification of the right, even based on age! This because rights are expressed generally as positive absolutes Only prohibitive rights may be expressed to express censure, such as slavery, genocide, discrimination. Even here they are negatives and absolutes.
The prescription about the age is to vote is not in the section that creates the right. It is in section 77
“.—(1) All persons shall be eligible to vote in any general election, by-election, presidential election, local government election or referendum, subject only to this section.
(2) Subject to subsection (3), a person shall be qualified to be registered as a voter in a constituency if, and shall not be so qualified unless, at the date of the application for registration that person—
(a) is a citizen of Malawi or, if not a citizen, has been ordinarily resident in the Republic for seven years;
(b) has attained the age of eighteen years; “
The point here is that the Section creating rights cannot and should not carry qualification and Section 22 should not even have added all those sections dealing with age. Section 22 should have created a general right conferring the right to marry (irrespective of age). I will analyse this a bit later. Let me deal with a different problem here.
WHEN AND HOW DO THESE RIGHTS ACRRUE OR ARISE
This relates to the question of putting age in the constitution. They say age is just a number! But age as a number can be very deceiving! What if somebody through some deformity of body or mind at age 21 is shown to have the mentality or physical developments of a one year old. You will think this is speculative but bad cases make good law! Does the right arise from
the mere figure of eighteen?
Can we speak of rights in a sense of dormancy? Is the argument that the right to marry actually grows with age? Is it that the right to marry does not exist until you attain a certain age? Is it that the right exists only that you should exercise it at a certain age? My view is that the right
exists as from birth and you can only exercise it later. I, therefore, conceptually, have no qualms, conceptually that the right does exist for children just as it does for adults.
PROBLEMS IN FORMULATING THE RIGHT
Now this conclusion is very important for it points to the way in which the right is drafted in our section 22. Strictly speaking if the rights in that part of the Constitution are ‘human.’ a formulation that confers the right to all humans is a good formulation of the right. The problem is that if the right is expressed generally it means that anybody irrespective of age can exercise it. And that can be problematic. And that is the struggle! This difficulty is seen in the way the right is formulated.
PROBLEMS WITH FORMULATING A RIGHT AROUND AGE
One approach is to suggest that people of a certain age can marry. This approach is subject to the principle that age is just a number. On the one side, you will have people reaching that age where for one reason or another you may have not to permit the marriage. This is the case of a
retarded person. On the other extreme is the situation of a person fully developed physically and mentally below the given age. In the case of the former denying the right will be the right thing to do; in the case of the latter, allowing the right will be the right thing to do!
THE MARRIAGIBILITY FROMULATION
It is for this reason that other jurisdictions have avoided the given age number in favour of the concept of marriagibility. This approach on the face of it breeds uncertainty. On analysis, it gives the correct answer to the conundrums mentioned earlier.
It is in this matrix, the matrix of the two conundrums, that the concept of consent has been introduced. In both extremes, good guidance is needed and nobody can give that guidance better than parents who may be advised by experts!
I for one think that the framers of our constitution looked at the MARRIAGIBILITY APPROACH and disfavoured the AGE approach in determining the right to marry. That is why they introduced the right as being available to ‘men’ and ‘women.’ In the Human Right part of the Constitution the word ‘person(s) is used 67 times. The phrase “men and women” is used only once not only in this part of the Constitution but also in the whole Constitution.
The framers, however, had to deal with the age problem in the right. My take is that the question of age goes to CAPACITY to exercise the right and that, for reasons appearing shortly, should be left to the general law!
I would therefore propose as follows in a way that the right in section 22 is properly framed to avoid the age problem.
1. The right should be framed generally as available to all persons. This is because it being an innate right to humans is in fact available to all at birth and only that can be exercised later. But that is also true of some rights except the right to life which commences at birth. The right to
acquire property, to education, to vote, to bail arise later in life. All these rights are not expressed in terms of age. This framing creates a right expressed in absolute terms. This formulation means that all those provisions that deal with consent and capacity are removed from the constitution since they are areas of general law!
It is a good formulation of the right because so expressed it means that it can (a) be derogated from and (b) limited. Such a formulation gives a whole free hand to legislation to limit it by general law.
Issues of capacity consent form and eligibility are matters of formality and hence best served by the general law. In this regard it means that for the general law to prescribe an age limit would never be understood as a limitation or derogation. If it is, it will certainly pass the muster.
The benefit of leaving it to the general law is that the age can be adjusted by the legislature on emerging information without having to amend the constitution each time somebody suggests 21 or 10 are better ages!
2. Alternatively, the marriagiability test could be pursued so that the phrase ‘men and women’ makes it clearer that it relates to marriagibility by substituting marriagibility in the section or words to that effect. Under thsi formulation, again all the sections about consent and age are
left to the general law. The arguments in 1 apply mutatis mutandis
3. The age limit should not be put in the constitution for flexibility’s sake should science and knowledge advise differently for posterity. Is it Plato who advised that the correct marriage age for a good man is 30? Did Jesus not take his mission at the age of 30? For sometime 21 was considered majority. We are down to 18! And the journey continues. Leaving it to the general law means that we can make these adjustments easily and periodically without having to change our constitution frequently!Follow and Subscribe Nyasa TV :