Malawi’s new marriage law deemed invalid

University of Malawi law experts have noted that the Marriage, Divorce and Family Relations law – which was assented to by President Peter Mutharika after parliament passed the bill is inconsistent with the supreme law of the land, the Constitution and renders invalid the Marriage law which increased the legal age of marriage for girls from 15 to 18.

Tembenu:any law that is inconsistent with the provisions of the Constitution is of no force or effect.

Tembenu: Any law that is inconsistent with the provisions of the Constitution is of no force or effect

Legal experts say the parliament rushed in passing the amended bill before changing a constitutional provision that stipulates young people between 15 and 18 may marry upon parental consent.

“If parliament wanted to change the marriage age in the country what they needed to do was to amend section 22 of the Constitution, not just pass a separate legislation then try to change the age by that. As it is, there is a contradiction between marriage age as set in the bill and marriage age as set in the Constitution,” said Mwiza Nkhata,law professor  at Chancellor College of the University of Malawi.

Edge Kanyongolo, who is also Chancellor College Associate Professor of Law, said people can challenge the constitutionality of the Marriage law in court.

“If you read Section 22, the constitution allows persons between 15 and 18 to get married and the section does not expressly prohibit those who are below 15 from entering into marriage. When we have such an apparent inconsistency and a case comes before a court to argue that this act is inconsistent with the Constitution, the court will have no choice but declare the Act invalid,” said Kanyongolo as quoted in the Daily Times on Monday October 26.

He added: “Unless we resolve this matter, at some point we will be faced with the prospects in which people will successfully challenge the constitutionality of the Marriage Act, and this will be a shame. A lot of effort has been put into the enactment of the Act which is well-intentioned. It’s something that we should try to avoid.”

However, Kanyongolo failed to say why people drafted that provision in the Marriage, Divorce and Relations Act when they were aware of Section 22 (7) of the Constitution which reads “For persons between the age of 15 and 18 years, a marriage shall only be entered into with the consent of their parents or guardians.”

Kanyongolo said “in the interest of protecting children,” it is worth to make the effort and call for a referendum and change the Constitution.”

Blantyre Child Justice Magistrate Esmie Tembenu told the paper that she was baffled that the Constitution can allow a child of 15 years of age to get married when an Act of Parliament, the Penal Code, decriminalizes sexual intercourse with a girl below 16 years of age, as defilement.

“What does the Constitution expect a child of 15 years to be doing in marriage? It’s sexual intercourse. Will our law enforcers be able to prosecute that man for defilement when Constitution, which is the supreme law of the land, allows child marriage?” wondered Tembenu in citing the inconsistencies.

Tembenu pointed out: “The marriage provision in the Marriage, Divorce and Relations Act and the Defilement provision in the Criminal law are both inconsistent with the Constitution, which according to Section 5 of the Constitution are invalid in that inconsistency.”

The Marriage law has some interesting aspects which observers say need review such as in Section 13, where it states the concept of “marriage by repute and permanent co-habitation”, a concept which customary law and statutory law did not recognise although the Constitution just mentions it. Persons of the opposite sex who have never undergone any process of celebration of marriage can be said to be married if they live together for a period exceeding five years.

The law also brought changes the manner in which a spouse would acquire interest in a property acquired in the course of the marriage. Under the old law the mere fact of marriage did not entitle a spouse to acquire interest in property acquired by one of the spouses in the course of the marriage relationship. Under the old law, for example, when one spouse does the odd jobs about construction of a house which plainly belongs to the other – the ‘do-it-yourself’ things – he or she does not thereby become entitled to an interest in it. The spouse needed to show direct or indirect contribution towards the acquisition of the house.

The Marriage law does not require showing direct or indirect contribution towards the acquisition of the property. What this means is that any property acquired by any of the spouses becomes, under the new law, joint property. A spouse would not dispose of any of their property whether by sale, will or gift without the consent of their spouses. In effect the new law effectively nullifies the need to make Wills.

Some sections of the new law are controversial like Section 92 which provides for the right of a spouse to apply for permanent maintenance even in divorce.

And when minors make each other pregnant, the Marriage law in Section 96(2) states that it requires the parents or guardian of the male minor to maintain the pregnancy and to pay for or reimburse the attendance costs of delivery but does not provide for any corresponding responsibility on the parents of the female minor.

Earlier this year, some Civil Society Organisations in Malawi in their submission report to the 56th session of the African Commission on Human and Peoples Rights (ACHPR)which was held in Banjul, Gambia called on the Malawi government to address the issue of contradictions between the provision of the Constitution of Malawi and the Marriage, Divorce and Relations ACT.

“The issue of contradictions between the provision of the Constitution of Malawi and this newly assented law on marriage age should be addressed by the state party in order to ensure effective implementation of this new law to that end,” reads the report which submitted by Makhumbo Munthali, CHRR Human Rights and Governance Advocacy Coordinator on behalf of in April this year, Centre for Human Rights and Rehabilitation (CHRR) and Centre for Development of People (Cedep).

The law also only recognises marriages between men and women, disappointing homosexuals who are seeking for “marriage equality.”.

Homosexual acts are illegal in Malawi, where most people hold deeply conservative religious and cultural beliefs.

But homosexual activist argue that marriage equality was not really about laws or the constitution, but were mainly about love, commitment and family.

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44 thoughts on “Malawi’s new marriage law deemed invalid”

  1. marble says:

    The only MP who pleaded for close scrutiny of the bill was that young mp chaphwantha chairman of legal committee. I know see he had a good point but was booed

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  3. Sapitwa says:

    This is just one of the many contradictions we have but as someone said, the onous remains with the Learned Judge to pass the right judgement.
    Iam satisfied on the property acquisition that now it gives a full ownership right to both spouses. Women were treated like dogs in the past but now it is just much fair. Iam also satisfied on child maintenance especially where both parents are responsible for maintenance of the child.
    On the will, the law will not stop me to have one provided it is jointly done with my spouse.What we state in the will is to the best interest of our children and this will block all the opportunists.

  4. Nankununkha sadzimva says:

    There was a lot of ‘ball watching’ on the part of various stakeholders.

  5. nachisale says:

    MALIPEYA you are spot on. The Marriage Law is compatible with current and best interests of the girl child – as a woman I would say it caters for the current and best interests of women. UNIMA lawyers and professors are living behind the modern times – in the jungle of naivety.

  6. Malipeya says:

    THERE IS A CLEAR EVIDENCE THAT LAW PROFESSORS NEED TO REVISIT THEIR CONSTITUTIONAL LEGAL KNOWLEDGE AND THE LEGAL PRINCIPALS OF CHILD PROTECTION.

    1. THE LAW PROFESSORS MUST UNDERSTAND THE SPIRIT BEHIND SECTION 22(SUB SECTION) 4 AND 7. WHEN READING MAY BE THEY MUST PUT ON GLASSES AND HAVE A CLEAR MIND TO UNDERSTAND.
    2. THEY MUST REMEMBER THAT THE SAME CONSTITUTION PROVIDES UNLIMITED JURISDICTION TO THE HIGH COURT UNDER SECTION 108. THIS IS WHY THE HIGH COURT GRANTED MADONNA THE PERMISSION TO TAKE DAVID WHEN THE MALAWI ADOPTION LAW REQUIRED HER TO STAY IN MALAWI CONTINUOUS FOR 18 MONTHS. THE COURT USED THE BEST INTEREST OF THE CHILD AS PROVIDED IN THE CONVENTION ON THE RIGHTS OF THE CHILD ARTICLE 3. SIMILAR A SENSIBLE JUDICIAL OFFICER HANDLING A CASE OF CHILD MARRIAGE WILL LOOK AT WHAT IS BEST OF THE CHILD.
    3. I WILL BE AVAILABLE TO ORIENT THE LAW PROFESSORS WHEN NEED BE ON THESE PROVISIONS AND THE CONCEPT OF THE BEST INTEREST OF THE CHILD. OTHERWISE THEY COMMENT AND GIVE THEIR OPINION WITH LIMITED KNOWLEDGE ON CHILD PROTECTION PRINCIPLES AND THE REAL INTERPRETATION OF THE LEGAL PROVISION IN THE CONSTITUTION.

  7. Zidura Ntengo Undigwere says:

    Note to Kanyongolo: We do not need a referendum to change the marriage law that was blatantly discriminatory against women; and thwarted education and progress of school aged girls! And we do NOT want to be a nation governed by referendums, many of which would be won based on self enrichment or interest, and very likely won on the basis of which side has the most campaign money. Asa!
    Sure this is a serious error in that this act is is not consistent with the Constitution. But the responsibility for this fiasco should go to the lawyers in parliament and the government; these are the people who “framed” the law. Many of these lawyers were probably trained by Kanyongolo et al. at Chanco.
    Kikikikikikiki Law school imenei!

  8. Mirella K says:

    ‘Analysit’ on point! By the way, would you marry me? Am a charming girl, 17 at Chaminade doing Form 3…Inbox on fb (Mirella K Mapeseka)

    1. The Analyst says:

      Gladly!

  9. Kamuzu Banda says:

    does it measn its the whole law or just the piece on marriage age

  10. charles midima says:

    i concur, any acts of parliament or any law that is incostistent with this constitution shall be invalid to the extent of such inconstistency- section 5 of 1994 constitution of malawi. lets get back to drawing board.

  11. Bond Namiaka says:

    I personally blame Anthony Kamanga for this incompetence. He has been a law draftsman an and Solicitor General, unfortunately now Judge, and couldn’t see this. Many of the assanine laws were drafted during his watch.

  12. Kabilaboza Kabuka says:

    Amalawi kupupuluma pochita zinthu, apa mukuwonetsa kupepela kwanu. Nanga apa a Kaliati atipo chani

  13. The Analyst says:

    “A stitch in time, saves nine.” – American Proverb

    What use are fire fighters if they always come after the house is burned to ashes? What use is the police if it always arrives at the crime scene after the robbers are gone with bags of cash n lives lost even if they are informed in good time?

    This is exactly what happens in Malawi. We may forgive the savages (police n fire fighters) but its more detestable when even the experts do the same.

    When Kaliati moved like a mad cow waving the bill at rocket speed, you kept quiet. When the stupid MPs were ambushed into passing it (for fear of being labelled pedophiles), you said nothing; even when APM was analysing it for assent, you just watched. And now you come and want to appear wiser? Come on!

    Many a Malawian do the same. They watch a colleague go into trouble then say “ife tu timangoyang’ana” or “Ifetu timadziwa.” And you expect us to develop as a people?

    What use is a doctor if he/she only appears when a patient is already dead? Now listen . . .

    We men are now slaves! Our wives can now savagely grab our balls and drag us to the market, willy-nilly for an escort. And we cant resist coz they may decide otherwise and have our entire fortune halved. What kind of law is that? I have new for you . . .

    That whole document (law) is wrong!

    It was drafted by Kaliati – who is always troubled by her husband’s teen girlfriends; Kabwira – leader la wa mbeta Mmalawi; Seodi White (lawyer) – whose failures (in love ventures) made her so emotional she couldn’t notice these inconsistencies. And the agenda was to revenge against men-dogs.

    But not all men are dogs!

    Now you are calling for a referendum. Do you know how much money it will cost the country to do that? and therefore could have been saved had you pointed out these inconsistencies then?

    Why cant we Malawians learn to do things at the right time? And we wonder why we are extravagant amid economic challenges?

  14. PHILLIPS CHISAMBO says:

    Might be now! Coz the govt always hide things to avoid argument and make mistakes in the process.

  15. losco says:

    I can only see that these so-called lawyer(law professors) especially of Chancellor college do not do their work of teaching ,but busy fighting with the government. My country Malawi, what’s going on?

  16. jimbo says:

    APM is himself a law professor. He should be aware of the technicalities involved in changing the law of the land. Once again he has shown himself to be incompetent to hold the office of President.

  17. Mabvuto Kawonga says:

    shame to the nation.you mean all those legal experts failed too

    take note of this anomaly

  18. Ma says:

    Then you say Peter is a professor of law signing such trash? ?? Koma inu

  19. nachisale says:

    The lawyers and so-called professors invalidating the Marriage Law are misguided and their arguments are guided by the usual bigotry of wanting things to remain the same. The Marriage Law is a progressive piece of legislation. Let the constitution be amended to be in tandem with the penal code. Otherwise some of these so-called professors are agents of backwardness.

  20. Hamu says:

    Kaliati anali teacher za malamulo angaziwepo chani? makani opanda nawo kulowera awa!!!

  21. Here we go again says:

    e tikaimitsana pa court, am planning to get married to 17 yr old sweet girl parents hav agreed already

  22. Flywell says:

    It takes time to review the literature. The Law profession is about swallowing case reports and applying to your context. Thats all.

  23. CHOKANGA says:

    THE REASON IS SIMPLE POLITICIANS AND THOSE ASPIRANTS OF POLITICAL OFFICES WANT TO BE CREDITED FOR PUSHING TO PASS THE LAW FOR THEIR NOTHING BUT SELFISH REASONS. MA LAWYER ATHU NGOSEKETSA PENANSO. TITHOKOZE CHANCO LECTURERS.

  24. The Analyst says:

    “A stitch in time saves nine.” – American Proverb

    What use is the police if they always arrive at a crime scene when robbers are already gone with bags of money n lives lost? What good are fire fighters if they always come when the house is in ashes n with inadequate water?

    This is what exactly what happens in Malawi!

    We may forgive the savages (police n fire fighters) but its detestable when even you the experts do the same. When Kaliati was moving like a mad cow at a rocket’s speed, you kept quiet! When the stupid MPs were ambushed, you kept quiet! When APM was analysing it for assent you just watched! And now you you come and say nye nye nye nye nye? Are of you of sound mind?

    What use is a doctor if he/she always comes when the patient is already dead? I have news for you . . .

    That whole document is wrong!

    It was made by frustrated women (Kabwira – whose marriages failed, Kaliati – whose husband always fucks around e.t.c) to wage revenge on some men-dogs.

    But not all men are dogs!

    Seodi White (the lawyer who was consulted) is equally frustrated (in love) and was so full of rage/emotions that she couldn’t see these inconsistencies!

    How sad!

  25. chatonda says:

    By the way, did the President sign this law just because it was passed without reading it as a lawyer himself? Is he learned indeed as a lawyer as we are made to believe? University Professors do not and are not involved in drafting the law but govt does. Parliament has to nullify this stupid law when they meet. And one would ask, do these MPs know what they are in parliament for or just pocketing our taxes, drink beer at Bwandilo and then fuc….king the same young girls thir law want to protect? Shame to all of you who were involved in creating this stupid mess.

  26. Alfred Minjo says:

    Koma nde tuanyamata tukwata tuazimai mu Area 18, 43, 47 and 49i heavy. The beauty to it is this that tina tubereka tiana tokongola zedi ndi azimai amenewa…..ndangudutsamo tere.

  27. Hastings says:

    Those are kind of mistakes to happen When the laws are made in anger targeting a particular Group of pple, A kaliyati ndi anzawo a ku reserve bank aja kunali kufuna kuthambitsa amuna akuti due to what they, personaly have gone through. nde abwere omwewo asove zimenezi, kungoononga ndalama za Amalawi for ur personal gains and intended achievement. kupusa

  28. karoda says:

    It’s either they are making this noise at this moment in time in order to bring mathanyula issue after they have managed to aquire the global funding or they rushed to pass the law because they had their own personal interests

  29. guguh says:

    The bill was an emotional one that fringes a lot of human rights. All the points should be scrutinised and debated among lawyers from different backgrounds to have something good and substantial not this half baked no research ideals to reap off your husbands/wives or punish people who want out of a marriage. And that is not a days job nor just a few months.

    Typical of malawi zopanda mchere no matter how serious the issue should be mxiiii!

  30. Elukuluku says:

    Kanyongolo he teaches Law but he dont put in practise n University has a lost number of cases while these law expertise are there in the corridors of university,How many cases has Kanyongolo won and he must go in court and defend some of these cases for national interest osatingoti mbyofyombyofyo Get out.How can you draft a law which can be defeated by another law Doesnt make sense Govt and NGO spent alot of money to protect women.Where you Law Expertise by then.Fotseki.Za ziii no substances in your argument.

  31. goat says:

    Bwanji tikamakambilana za nsetezi, tidziganizila ali ana athu kaye and make decisions. 15 or 18 years ndi aja akumamwalilila ku chipatala aja pobereka. Kupanga ban basi iya

  32. Amos jumbe says:

    Ok??

  33. Nangaunozge says:

    sometimes I wonder the type of lawyers we have in Malawi.Dont tell me the government ignored it but I feel the lawyers never did their work well.This was an obvious observation and is just very surprising to start hearing this noise now some months down the line.Are you really professionals.I guess lawyers should be good researchers and should be acting promptly to avoid such junks.You want to appear intelligent now when we know that there will be costs in trying to correct the anomally.Am not a fan of DPP with the Kaliaties but I cant only blame them, infact a greater percentage of blame should go to law professionals.I mean you the kanyongolosi and Nkhatas and every lawyer making noise now.I am proud to be a clinician who doesnt wait for a time bomb for many would have died if I behaved like most of Malawian lawyers.You are SALVAGES.Infact most of you are stupid corrupt and incompetent professionals.Mwandikwana heavy.

  34. Tili Chenene says:

    Remember who assented to it is a “lawyer” with repute from some quarters

  35. Chenda says:

    This is good development. Let us appreciate when our colleagues with good background of general law are tying to advise us of some irregularities they have noted in some of the Acts of parliament. May there be a quick amendment where possible, either in the Act itself or the constitution to avoid problems that have been foreseen.

  36. dereck says:

    Athu ambili alandidwakatundu mmatownmu panopa zafika kumamizi akutenga chilichosepakhomo kwao kwamamuna, azimayi sakulemekeza azibambo amayambadala tizibwezi cholinga atiummenye akakusumile. Izizikuchitika chifukwa chakusithidwakwamalaulo osaziwikawa,,,kusumilana kwafika pa inde inde cholinga wina amkhaulise, apolisi alowelela atiakuthandiza azimai kumumenya mamuna opanda zifukwa zokwanila. Tikunena pano amunaena alimndende chifukwa adagulisa katunduwawo amai adawasumila kuboma. Masikuanokulibwino kungokhalaosakwatila.

  37. Achimidzimidzi says:

    Mrs. Patricia Kaliati phuma. Now look it is a waste of time and resources.
    Ndiye kumati boma ili ndila nzeru!!

  38. Patrick Phiri says:

    Didn’t these Law professors see the bill before it was presented to parliament? Why didn’t they advise then? Wasn’t the Act prepared by lawyers?

  39. Ife tinafunsa kale kuti kaliyati bwanji muli pa liwilo lotele osayamba mwaona kaya mobooka mwina ndi mwina? Anthu anatinena al,”Inu koma gondolosi!!!!!!!!!!!

    1. Baba wa Boyi says:

      Blaming it on Kaliyati shows the caliber of citizens Malawi has. What has it got to do with Kaliati? parliament has over 100 MP and Kaliati is responsible for this?

  40. Nkhosa says:

    The whole marriage law is just machende okhaokha. The one that was contracted to do the drafting just did ‘copy-and-paste’ from a country with different cultural, historical and economic realities from Malawi. In Malawi, more than 80% of marriages are not ‘celebrated’ in church or at DC’c office. What matters is that you 2 have agreed and your parents/guardians are also in agreement to your staying together. That becomes marriage. We are too poor for those ceremonies of yours with which you are bringing with this Act. An Act applicable for a minority intended to benefit women who clandestinely ‘eliminate’ their husband mu Area 47, 43 Chimaliro, Namiwawa, Sunny Side so that azikwatana ndi tanyamata.

  41. John says:

    why are lawyers making noise now? You mean all along you did not know this. patricia kaliati should have known this already

  42. Helo says:

    good riddance!

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