WUNRN
Girls Not Brides
HOW IMPORTANT IS THE MINIMUM AGE OF
MARRIAGE LEGISLATION TO END CHILD MARRIAGE IN AFRICA?
By Violet Odala, African Child Policy Forum - 11
June 2013
Photo credit Ashenafi Tibebe | The Elders
Girls Not Brides and members mark Day of
the African Child (June 16) under the theme “Eliminating Harmful Social and
Cultural Practices affecting Children: our Collective Responsibility”.
The practice of marrying children,
especially girls, before the age of 18 is a practice that curtails children’s
right to education, puts their health at risk, and hampers national development
efforts.
Ahead of Day of the African Child, Girls
Not Brides spoke to Violet Odala of the African Child
Policy Forum, about the importance of setting a legal minimum age of
marriage for ending child marriage in
BACKGROUND
ON CHILD MARRIAGE IN
As a harmful traditional practice, child
marriage is prohibited by several international and regional conventions. The
Convention on the Rights of the Child (CRC, 1989) clearly defines a child as a
person below the age of 18, while the African Charter on the Rights and the
Welfare of the Child (ACRWC, 1990) prohibits “the betrothal of girls and boys”
and calls for appropriate measures to eliminate the practice.
The South African Development Community
(SADP) on Gender and Development, and the General Recommendation of the
Convention to Eliminate All forms of Violence Against Women (CEDAW) Committee
on equality in marriage and family relations, also state that no person under
the age of 18 should marry.
So far, 32 African countries have set the
minimum age of marriage at 18 for both girls and boys, and sometimes above, as
is the case in
Despite legislation, child marriage
continues to affect millions of girls every year.
WHY
IS IT IMPORTANT FOR COUNTRIES TO HAVE A MINIMUM LEGAL AGE OF MARRIAGE?
Setting a legal minimum age of marriage
recognises that children do not have the maturity to consent to marriage, and
offers them legal protection from the abuse, violence and exploitation they
risk within child marriage.
In particular, it is a critical step to
prevent the sexual exploitation of girls under the guise of marriage. When a
low minimum age of marriage exists, and no proper protection mechanisms are in
place, child brides’ consent to sex is often assumed as a natural consequence
of marriage, regardless of their wishes.
Not only do girls have little ability to
negotiate or say “no” to sexual relations, their young bodies also risk
injuries, or even death, in pregnancy and childbirth.
That’s why countries should also specify a
legal minimum age for sexual consent, and ensure that the age of marriage isn’t
lower.
HOW
DO YOU EXPLAIN LEGAL EXCEPTIONS ALLOWING UNDERAGE MARRIAGE, WITH PARENTS’ OR
COURTS’ AUTHORISATION?
While 32 African countries have set the
minimum age of marriage at 18, many allow exceptions. In
Parents can also apply for underage
marriages licenses in several countries. In
We must remember that parental consent is
not always in the child’s best interest.
Parents may consent to child marriage to
avoid the embarrassment of an unmarried daughter falling pregnant, or because
they can’t afford feeding one more mouth. Some parents may push a child to
marry in the hope that they will receive financial or material assistance from
the husband.
Whatever the reason, child marriage is unequivocally
a violation of children’s rights. To protect children from harm, governments
ought to abolish any exceptions to the age of marriage.
Whatever the reason, child marriage is unequivocally a
violation of children’s rights. To protect children from harm, governments
ought to abolish any exceptions to the age of marriage.
Violet Odala, ACPF
WHAT ARE THE MAIN CHALLENGES IN ENFORCING
MINIMUM AGE OF MARRIAGE LEGISLATION?
The biggest obstacle is that families
rarely view child marriage as an offence: they see it as a culturally
legitimate practice. These deeply embedded cultural, and sometimes religious,
beliefs are not easy to alter yet addressing them is vital to changing the
acceptable age of marriage, both on paper and in practice.
Too often, justice systems lack effective
monitoring and enforcement mechanisms that could prevent or sanction child
marriages. And serious discrepancies between regions in accessing mechanisms of
redress (such as the existence of Child Protection Units, or a Children’s Court)
means that children do not have equal access to the help they need.
Simultaneously, birth registration systems
are not effective in most African countries. If a child marriage comes to the
attention of the authorities, they won’t be able to intervene unless they have
a birth certificate proving that the bride or groom isn’t old enough to marry.
And where child marriage is illegal,
legislation doesn’t always provide for sanctions against perpetrators. How can
we possibly expect to end the culture of impunity around child marriage if
there are no legal consequences to marrying a child?
IN
MANY COMMUNITIES WHERE CUSTOMARY AND RELIGIOUS LAWS CONDONE THE PRACTICE ,
THESE TAKE PRECEDENCE OVER NATIONAL LAW/ HOW DOES THIS TYPE OF PLURAL-LEGAL
SYSTEM AFFECT EFFORTS TO ADDRESS CHILD MARRIAGE?
Many African countries have plural legal
systems, where civil, religious and customary laws overlap and often contradict
one another.
For example, in
Having different ages of marriage
complicates implementation of the higher age of marriage and increases
children’s vulnerability to early marriage.
Additionally, customary law is mostly
unwritten and administered by traditional leaders with no legal background.
They are often unaware of international or national legislation banning child
marriage, or its consequences for girls. That is why efforts to end child
marriage must reach out to traditional and community leaders too.
GOVERNMENTS
ACROSS
Human rights instruments are useful insofar
as they create obligations for countries to take concrete measures to implement
them.
The fact that the ACRWC contains specific
and strong provisions to protect children from early marriages is worthy of
note. To this day, its ratification has led 15 countries to revise their
minimum age of marriage to 18.
The ACRWC and the CRC also require
countries to submit reports on their efforts to uphold children’s rights,
including on achieving an end to child marriage. In spite of this, only 17
out of the 47 States that ratified the ACRWC have reported on its
implementation.
This should not be misinterpreted as these
standards not being useful. The fact that few countries harmonise their
legislation to international and regional standards is instead a call to action,
particularly to the monitoring bodies which have a mandate to encourage these
countries to do so. It is after all an obligation on all States that have
ratified the ACRWC and CRC.
IF
WE MAKE CHILD MARRIAGE ILLEGAL, WON’T IT JUST DRIVE THE PRACTICE UNDERGROUND?
Three types of approach exist concerning
child marriage in
To serve as a good deterrent, we believe
that legislation should spell out clear and strong sanctions.
So far, at least 24 countries in
Criminalisation should also be part of a
holistic approach. Awareness raising campaigns should accompany legal changes,
to educate people about the negative impact of child marriage and why it’s
important to outlaw it.
There should also be mechanisms for
children to report or be able to run away from marriage and receive enough
protection that they will not be forced to go back either for lack of financial
support or due to pressure from parents or guardians.
Critically, lawmakers must address the core
driver of child marriage in
Unless they develop social and economic
policies and social protection programmes that strengthen the resilience of
children, families and communities against economic challenges, governments
will struggle to tackle the causes that lead families to marry off their
children.
WHEN
IT COMES TO PREVENTING CHILD MARRIAGE, WHAT MAKES A STRONG LEGAL AND POLICY
FRAMEWORK?
A strong framework should align with
international and regional standards for protecting from child marriage.
1.
Set
minimum age of marriage at 18
2.
No
exceptions upon parental consent or Court’s authorisation
3.
Adopt
a consolidated law on children
4.
Establish
effective birth and marriage registration system
5.
Criminalise
child marriage and provide for clear sanctions
6.
Establish
institutional framework and enforcement mechanisms such as specialised
Children’s Courts, and Child Protection Police Units. Institutions such as
National Human Rights Institutions, the Office of an Ombudsperson for Children,
National Commission for Children, responsible for coordinating the
implementation of children’s rights must also be established and operational.
7.
Establish
a strong holistic child protection system that incorporates interventions in
the education, health and social protection sectors to tackle child marriage.
8.
Remain
accountable to treaty bodies by submitting reports explaining measures put in
place to prevent child marriage and protect children.
Download the full paper by the African
Child Policy Forum: ACPF – Importance
of min age of marriage legislation – May 2013
Download overview table of minimum age of
marriage legislation in Africa: Minimum age of
marriage in Africa – June 2013
Download overview table of international
and regional standards for protection from child marriage: International
and Regional Standards for Protection from Child Marriage – June 2013