The problem of child marriages on the African continent (legal aspects)

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Category: INTERNATIONAL LAW Created: Friday, 18 August 2017 07:03

According to the author, one of the major reasons for child marriages are poverty, traditionand gender inequality. The author also believes the United Nations and other international organisations have done a lot to end this phenomenon in Africa; one of the major steps, pointed out by the author, is the creation and implementation of international treaties and conventions aimed at the protection of the rights of children.

CARLOS Jorge Quete
postgraduate student of International law sub-faculty of the Belgorod National Recearch State University

In sub-Saharan Africa, a staggering 40 percent of girls marry before age 18, and African countries account for 15 of the 20 coun­tries with the highest rates of child marriage.

For example, 77 percent of girls in Niger, and over 60 percent of girls in Central African Republic and Chad, marry before they turn 18. Without progress to prevent child marriage, the number of girls married as children will double by 2050, and Africa will surpass South Asia as the region with the highest number of child brides in the world.

Girls who marry young are often denied a range of human rights: many must discontinue their education, face serious health risks from early and multiple pregnancies, and suffer sexual and domestic violence. Agenda 2063, the African Union's 50-year action plan for development, recognizes that child marriage is a major impediment to regional development and prosperity. Countries lose out on potentially enormous social, economic, and political contributions these girls could make if given the right opportunities from the start.

The issue of child marriage is addressed in a number of international conventions and agreements. The Convention on the Elimination of All Forms of Discrimination against Women, for example, covers the right to protection from child marriage in article 16, which states: "The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage.. The right to 'free and full' consent to marriage is recognized in the Universal Declaration of Human Rights, which says that consent cannot be 'free and full' when one of the parties involved is not sufficiently mature to make an informed decision about a life partner. Although marriage is not mentioned directly in the Convention on the Rights of the Child, child marriage is linked to other rights - such as the right to freedom of expression, the right to protection from all forms of abuse, and the right to be protected from harmful traditional practices - and is frequently addressed by the Committee on the Rights of the Child. Other international agreements related to child marriage are the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa.

SOME OF THE CAUSES OF CHILD MARRIAGES IN AFRICA

Evidence for what drives child marriage is growing. Despite diversity across regions and communities, many common threads lead to child marriage and its harmful consequences. Human Rights Watch research in Malawi, South Sudan, Tanzania and Zimbabwe has found that intersections between gender discrimination and poverty; poor access to education and health services; customary practices; religious beliefs; and weak justice mechanisms fuel the practice.

Poverty

Ontinanta J. from South Sudan has nine siblings and neither of her parents is employed. She told Human Rights Watch that she was married in 2006 at the age of 13 because "my father did not want to pay my school fees. Sometimes we had no food at home." Aguet N., married at age 15 to a 75-year-old man said, "This man went to my uncles and paid a dowry of 80 cows. I resisted the marriage. They threatened me. They said, 'If you want your siblings to be taken care of, you will marry this man.' I said he is too old for me. They said, 'You will marry this old man whether you like it or not because he has given us something to eat.'Poverty is commonly cited by girls and family members as driving decisions to marry young. For poor families, with little money even for food and basic necessities, marrying their daughter early is an economic survival strategy: it means one less child to feed or educate. Girls themselves may see marriage as a way out of poverty. Discriminatory gender norms in many places, including traditions that mean girls go to live with their husbands' families, while boys remain with, and financially support, their parents, also contribute to perceptions that girls are economic burdens. Some families believe that giving their daughter away in marriage may give her a chance for a better life.

Gaps in Laws and Enforcement

Legal frameworks play a powerful role in transforming norms and protecting girls' rights. Relevant laws and regulations include those that set the minimum age for marriage at 18 for both girls and boys; requirements for birth and marriage registration; sexual violence and domestic violence laws; anti-corruption laws; and family status laws regulating marriage, divorce, custody, and inheritance. At least 20 African countries allow girls to marry below the age of 18 through their minimum age laws or through exceptions for parental consent or judicial approval.

Although many African countries have established age 18 as the minimum age of marriage for both boys and girls, weak enforcement has meant these laws have had little impact. Police may not have adequate training on dealing with these cases, do not see it as their job to prevent child marriages, or defer to the parents' wishes. And while birth and marriage registration helps prove the age of spouses at the time of marriage, they are rarely produced or verified.

For example, only 16 percent of children in Tanzania under age 5 have been registered with civil authorities, and only about half of these children received a birth certificate. Birth certificates are often also forged by corrupt officials who may accept bribes and knowingly facilitate child marriages.

Corruption may mean girls can find little recourse from the justice system. A police officer from the Police Gender and Children's Desk in Moshi, Tanzania, told Human Rights Watch that some of the cases taken to court for prosecution are delayed or are not completed because perpetrators pay money to the magistrates, who then postpone and adjourn cases indefinitely. The long delays eventually cause victims and witnesses to give up and stop coming to court.9Janet G., a child bride in Tanzania, said, "I want to report my husband's abuse to the police but I do not have money to pay them to help me."

Also, many African countries have multiple legal systems where civil, customary, and religious laws overlap and generally contradict one another. Community or religious leaders who align child marriage with customary practices and religious beliefs may also resist laws and their enforcement.

Customary Practices and Religious Beliefs

Traditional beliefs about gender roles and sexuality and women and girls' subordination undergird many customary practices, such as payment of dowry or bride price, which perpetuate child marriage. In a context of limited economic resources and opportunities, girls are often seen as economic assets whose marriages provide cattle, other animals, money, and gifts.

For example, dowry payment is a key driver of child marriage in South Sudan, where families see their daughters as sources of wealth. A marriage is sealed after a man and his family negotiates and pays a dowry to a woman's family in the form of cattle, other animals, or, increasingly, money. Anita G., 19, told Human Rights Watch that her father forced her to leave school to get married when she was 16 and in her second year of secondary school: "My father said he did not have money to support my schooling. I then discovered that he had already received 20 cows as dowry for me. My mother tried to reason with my father to allow me continue with school, but my father said I had to marry. He said, 'Once dowry has been taken, it cannot be returned.'

Religious beliefs can also be a driver of child marriage. Amongst Zimbabwe's religious sects, particularly in the Apostolic faith where religion combines with traditional culture, girls often marry much older men at a very young age. A midwife in the Johwane Masowe Shonhiwa Apostolic faith told Human Rights Watch her church encourages child marriage: "Our church doctrine is that girls must marry when they are between 12 and 16 years old to make sure they do not sin by having sexual relations outside marriage. As soon as a girl reaches puberty any man in the church can claim her for a wife." Virginity testing and polygamy are also widely practiced within the Apostolic faith religious sects. Church doctrine enforced by elders, husbands, and other family members, prohibits married girls from continuing school.

DEVASTATING CONSEQUENCES

Human Rights Watch research has shown that child marriage has dire life-long consequences, often completely halting or cri­ppling a girl's ability to realize a wide range of human rights.

Child marriage directly violates rights to health, education, equality and non-discrimination, consensual marriage, employ­ment, and to live free from violence and discrimination, which are enshrined in international human rights standards and institu­tions, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).

Child marriage also violates the rights of women and girls that are enshrined in regional treaties. These include the Protocol to the African Charter on Human and People's Rights on the Ri­ghts of Women in Africa (the Maputo Protocol), which calls on go­vernments to "enact appropriate national legislative measures to guarantee that: the minimum age of marriage for women shall be 18 years"; and the African Charter on Human and Peoples' Rights (the African Charter), which calls on states to "ensure the elimina­tion of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions."

Maternal Mortality and Other Health Risks

Child marriage is closely linked to early childbearing with consequences that can be fatal. Complications resulting from preg­nancy and childbirth are the second leading cause of death among adolescent girls aged 15-19 years old globally.

Research shows that girls aged 10-14 are five times more li­kely to die during delivery than mothers aged 20-24; girls aged 15-19 are still twice as likely to die during delivery as women aged 20-24.

These consequences are due largely to girls' physical imma­turity where the pelvis and birth canal are not fully developed. Complications in labor are exacerbated where emergency obstetric services are scarce, as is the case in many countries across the con­tinent. In other cases, the stress of delivery in physically immature bodies can cause obstetric fistulas, a tear between a girl's vagina and rectum that results in constant leaking of urine and feces. Girls suffering this condition are often ostracized and abandoned by their families and communities.

Limited access to reproductive health information and ser­vices for both unmarried and married adolescents contributes to these harms. Many adolescents have a limited understanding of sexual intercourse, its consequences, or contraception. Adolescent pregnancy outside of marriage, or the fear that adolescent girls will get pregnant, helps fuel child marriage. Once married, girls often do not have access to information or family planning services to delay or space pregnancies.

Many girls that Human Rights Watch interviewed in South Su­dan lacked basic knowledge about sexuality and contraception. Glo­ria C. said she got pregnant at 14 or 15. "I didn't know that I would get pregnant by having sex," she said. "I was just playing sex."

A problem in many countries is that many schools do not of­fer comprehensive sexuality education to girls and boys, or health workers do not share complete information about reproductive health with adolescents.

Sexual and Domestic Violence

Child marriage exposes girls and young women to violence, including marital rape, sexual and domestic violence, and emotio­nal abuse. Rose M., a mother of two, was married when she was

  1. She told us: "I experienced a lot of problems in my marriage. We had no food or clothes. We washed our clothes with leaves. My husband beat me at least twice a week and he used to force me to have sex with him. Also, I was not allowed to go out of the home."

While not all child marriages are marked by domestic violen­ce, the risks increase when there are large gaps in age between a girl and her husband

Many countries fail to criminalize marital rape, and even when it is a crime, child brides have little ability to seek help. Mar­ried girls and young women between the ages of 15 and 19 with low levels of education are at a much greater risk of domestic and sexual violence from their spouses than older and more educated women.

Halted Education

Many girls who attend school are forced to leave due to mar­riage, pregnancy, or family pressure. Although school adminis­trators and teachers should play a critical role in monitoring and encouraging married girls to remain in school, formal or informal school policies often mean that they instead stigmatize and expel them from the education system.

Others are pushed into marriage once they leave school. Poor access to quality education can also contribute to child marriage: when schools are too expensive, far, or of poor quality, many fa­milies may pull their daughters out, leaving them at greater risk of marriage. Inadequate water and sanitation facilities can deter girls from attending school, especially once they begin menstruating. School fees, or even the costs of uniforms and school supplies, can put formal schooling beyond some families' reach.

A lack of education limits girls' choices and opportunities throughout their lives. The price of this exclusion is often poverty. Without education, girls and adult women have fewer opportuni­ties to financially provide for themselves and their families. Rese­arch by the United Nations Children's Fund (UNICEF) shows how limited education may make girls and women more vulnerable to persistent poverty when their spouses die, abandon or divorce them.

In South Sudan, Anyier D., 18, told Human Rights Watch that her uncles forced her to leave school at age 14 in 2008 to marry an old man she did not know. She said: "I would wish to return to school even if I have children. People think that I am happy but I am not because I don't have an education. I don't have something of my own and I am only cleaning offices. If I had gone to secon­dary school, I would get a good job."

As a conclusion I would like to give some recommendations to the African Union, Heads of State and Goverments and Parliament, National Ministries of Education, National Ministries of Health and National Ministries of Justice and Home affairs.

To the African Union

  • Ensure a coordinated and comprehensive approach among child marriage initiatives, including the Campaign for Accelerated Reduction of Maternal Mortality (CARMMA), the African Women's Decade, and the African Youth Decade Plan of Action.
  • Incorporate an indicator to monitor progress towards ending child marriage into the AU Agenda 2063.
  • Incorporate child marriage into the work of the African Regional Economic Communities (RECs) and the inclusion of an end to child marriage into its development strategies.
  • Urge governments to develop comprehensive national strategies for combating child marriages, help share best practices regionally, and support programs to implement these strategies.
  • To Heads of State and Goverments and Parliament
  • Set age 18 as the national minimum age of marriage for both boys and girls and develop strategies and training for enforcement.
  • Enact marriage laws that include provisions that establish free and full consent of both spouses, requirements for proof of age before marriage licenses are obtained, and penalties for violence or intimidation against anyone who refuses to marry.
  • Ratify the Maputo Protocol.
  • Ensure access to reproductive information and healthcare for all girls and women in rural and urban areas by allocating greater resources from national health expenditure.
  • Provide access to information to parents, guardians, and community leaders about the harmful effects of child marriage, for example, by initiating a nationwide awareness campaign against child marriage, emphasizing the health risks of early pregnancy, the benefits of girls' education, the law prohibiting child marriage,
  • UNICEF Innocenti Digest, “Early Marriage Child Spouses,” No. 7, Mar­ch 2001, http://www.unicef-irc.org/publications/pdf/digest7e.pdf (ac­cessed November 13, 2016), p.12.
  • Human Rights Watch interview with Anyier D., Bor County, South Su­dan, March 15, 2014.

consequences for those who break the law, and the mechanism for reporting child marriage and obtaining assistance.

  • Implement nationwide programming to empower girls. Build on best practices by providing economic incentives and support to girls' families coupled with designing programs tailored to local communities that provide girls with safe spaces and equip girls with information about the harms and illegality of child marriage, awareness about sexual and reproductive health, including menstrual hygiene management, skills training, career guidance, and support networks.

To National Ministries of Education

  • Ensure girls' access to quality education, including secondary education, by:
  • Committing the resources necessary to guarantee access to a free and compulsory primary education for all girls and boys.
  • Developing retention strategies, such as incentives for families to keep girls in school, offering scholarships, expanding school feeding programs, ensuring schools have adequate sanitation facilities, and offsetting the costs of secondary school by subsidizing or eliminating costs of uniforms, exams, and textbooks.
  • Develop retention strategies and life skills programs for married girls through targeted outreach and support programs, initiating evening or part-time formal schooling and vocational training opportu- nities, and following up with students who drop out of school.
  • End the discriminatory practice of mandatory pregnancy testing of girls, expelling pregnant girls from school, and excluding married students from school.
  • Empower girls and boys with information and knowledge of their reproductive and sexual rights by introducing comprehensive sex education curriculum.

To National Ministries of Health

  • Develop and implement a national policy and strategy on adolescent reproductive health with a strong focus on the right to health information and services, including contraception; address factors that contribute to unplanned pregnancies; and train health workers on engaging adolescents.
  • Improve access to emergency obstetric care including monitoring of labor, trained birth attendants, newborn care, and contraception.

To National Ministries of Justice and Home Affairs

  • Provide regular training for police and prosecutors on their legal responsibilities to investigate and prosecute violence against women, including child marriage.
  • Ensure that police and prosecutors investigate and prosecute forgeries of birth or marriage certificates under the applicable law.

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