Marriage, Divorce and Family Relations Bill Passed Without Proper Oversight

As Uladi, Legal Affairs Committee of Parliament Says Some Provisions Contravenes with Constitution

Member of Parliament for Salima South Constituency Uladi Mussa has insisted that the bill ‘Marriage, Divorce and Family Relations has been passed in haste and the house failed to have a critical eye on some provisions that contains in the bill and those in the Malawi Constitution.

Mussa at the beginning when the bill was about to be presented by the Minister of Gender, Children Disability and Social Welfare hon. Patricia Kaliati pointed out that the proposed legislation should have been referred to Legal Affairs Committee of the house before debating it in the house.

“Even the Minister of Justice can agree with me” he said “am totally supporting this bill I don’t have any problem with it, but it is involving Section 22 of the constitution of the Republic of Malawi. Minister of Justice is fully aware of that legal necessity required to be done” 

He insisted “Am worried that we are violating our own constitution, this bill is proposing to change marriage age from 15 to 18 which we all agree but that is also in the constitution of the republic of Malawi and for that to happen requires amendment of the constitution.” And suggested, “After amendment of Constitution that will be a right time to bring the bill otherwise this bill will be null and void outside the parliament because the Act cannot be above the constitution”

When Minister of Justice and Constitution Affairs hon. Samuel Tembenu hold the floor, he clarified that the bill is not seeking to amend the Constitution “Actually the provision in the bill merely states that the age is subject to what the constitution says so there is no attempt or what so ever to amend  the Constitution”

Later in an interview Mussa maintained his argument based on Section 22 subsection 7 which stipulates “7. For persons between the age of fifteen and eighteen years a marriage shall only be entered into with the consent of their parents or guardians."

He therefore said "Amending that Section of Constitution we would have been absolutely sure that early marriages will stop and perpetrators penalized but as of now this bill is not stopping early marriage”

Malawi National Assembly Building Entrance

He also pointed out that he is not happy with provision that divorce of religious marriage also be done through the courts. He strongly said the bill should have cited that all marriages falling under ‘Religious marriages’ make divorce with consultations from clergy or churches officiated the engagement. He said as the bill stands now it is in conflict with some religious laws of some churches like Catholics that does not allow divorce and others like Islam which accepts divorce but given valid grounds like dishonesty and unfaithfulness of a marriage partner.

Reacting on the same, Chairperson for Legal Affairs Committee Hon. Peter Chakhwantha said at the same time as committee is contented with some provisions in the bill on protection of girl child and women, it also noted that the legislation contains issues that shall later be amenable to amendments and needed immediate correction.

“In this case there are so many areas in this bill that very soon we shall hear legal battles and challenges simply because we did not want to take our time to do homework properly”

He went on “We are not saying the bill is in its entirety wrong, but as member for Salima (Uladi Mussa) pointed out, we also as committee pointed out section 22 which clearly shows that this bill has grossly contravened the constitution”

As Chairperson for the Committee said his expectations were to see the government bringing the bill in the house by following standing order 125 where the bill was supposed to go through Clark of Parliament then sent to the relevant committee in this case Legal Affairs Committee to scrutinize it and make recommendation before debate in the house.

“The way this bill has been passed it has been a marathon and there was no room for those expected to bring controversial issues” he said

The Chairperson further observed that processes happening in this Meeting are short charging the entire essence of having standing orders “There are a lot of bypassing, maneuvers that does not want to recognize relevance of some procedures to be followed to avoid obvious issues that arise after the house short-circuited process.