How important is minimum age of marriage legislation to end child marriage in Africa?

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.
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 Africa.

Background on child marriage in Africa: what does the law say?

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 (SADC) 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 Algeria, Lesotho, Libya and Rwanda. 18 African countries either have a discriminatory minimum age, meaning that girls and boys are allowed to marry at different ages, or below 18.

Despite legislation, child marriage continues to affect millions of girls every year. Africa alone is home to 15 out of 20 countries with the highest rates of child marriage.

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 Ethiopia, for instance, the Minister of Justice has discretionary power to authorise marriages before 18. In Burkina Faso, it’s the Civil Court.
Parents can also apply for underage marriages licenses in several countries. In Angola, the law accepts that parents marry their daughters at 15 or their sons at 16, even though the age of marriage is 18.
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 Sudan, Muslim boys can marry as young as 10, and girls as soon as they reach puberty. Marriage is allowed at 13 for girls, and 15 for boys, who are not Muslims. Similarly, in Eritrea, the Logo Chwa Code of Customary Law sets the minimum age of marriage at 15 for girls, and the country’s Civil Code at 18.

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 Africa have signed up to international and regional human rights obligations, which prohibit child marriage. Yet rates of child marriage remain high.

How useful are international and regional standards in protecting children from child marriage?

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 Africa: countries that criminalise the practice, countries that ban or invalidate marriages below the minimum age, and those that prescribe a minimum age of marriage without criminalising or banning the practice.

To serve as a good deterrent, we believe that legislation should spell out clear and strong sanctions.

So far, at least 24 countries in Africa have done so. In Botswana, for example, the punishment is a fine of between 30,000 (about 3,400 US dollars) and 50,000 Pula (about 5,600 US dollars), or imprisonment for a term of seven to ten years or both; in Ethiopia, up to seven years’ imprisonment depending on the age of the minor.

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 Africa: poverty.
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