The Role of the Law in Eliminating Child Marriage in the Commonwealth WHY MORE ACTION IS NEEDED Edited by : Téa Braun © 2018 Commonwealth Lawyers Association Treva (Téa) Braun is an international human rights law expert based in London, UK and a member of the Law Society of British Columbia, Canada (non-practising), specialising in the human rights of women and girls and LGBT people. For over twenty years, she has advised on legal and human rights issues in all regions of the Commonwealth. She was a member of the Executive Committee of the Commonwealth Lawyers Association from 2015–2017, and managed and edited this report on behalf of the CLA. The principal researcher and author of this report is Rachael Taylor, an Australian qualified lawyer with significant experience in criminal, regulatory and public law matters. She worked on this report under the auspices of the Pro Bono Matters programme within the Law Department of the London School of Economics and Political Science, and was assisted with preliminary research by a team comprising Zoe Bantleman, Cillian Bracken, Anita Clifford, Dalia Damanhouri, Rima Desai, Alexia De-Vaucleroy, Kasumi Maeda, Stephanie Needleman, Natasha Reurts, Alexia Staker, Paulina Tandiono, Hui Ying Tham, Sophia Underhill, Peter Wat and Sarah-Jane Wylie. Design and layout of this report was generously provided by Baker & McKenzie LLP. Message from the President Few human tragedies are as heart-breaking as those that undermine, damage and destroy the lives of children. For girls in particular, one of the most wide-spread of such tragedies is child marriage. It is a blight on the Commonwealth that almost 60 per cent of all child marriages occur within this association of countries, despite it holding only 32 per cent of the global population. That is stark, and it must change. Clearly this is a Commonwealth problem, and clearly it is – amongst many others – a legal problem: one that we, as members of the legal profession, must collectively confront and help address. Across the Commonwealth, legislation remains insufficient to acknowledge and address child marriage. The legal frameworks of many countries actively enable marriages involving children through an absence of constitutional minimum ages for marriage, legislative ages of marriage that are or in certain circumstances can be below 18 years of age, and discriminatory ages of marriage as between males and females. Few countries have criminal or other sanctions against those conducting or enabling a marriage involving a child. Much of the Commonwealth continues to struggle with enforcing legal systems that mandate birth and marriage registration, which would enable better monitoring of ages of marriage. Few court cases are brought challenging the institutional and societal systems and structures that enable child marriage. Whilst laws can never promise to change things overnight, or on their own, they represent the values of a society and are a symbol of how resolute societies are to protect their most vulnerable. They signal to society as a whole what is and is not acceptable. Without legal protection, there is no protection. Without legal change, there is no requirement on societies to change. We must do more, and by using the vehicle of the law we can do more. The Commonwealth Lawyers Association is pleased to provide this pan-Commonwealth overview of the role of the law in eliminating child marriage. We hope that it will educate and inspire the legal profession around the Commonwealth to learn from the change that is happening in some of our countries in all Commonwealth regions, and to agitate for and help deliver more legal change and better law enforcement where it is still needed. For a child to lose her childhood, a student to lose her education, a healthy young girl to lose her life – simply because she is a girl – is a Commonwealth tragedy that cannot continue. It is trite to say that children are the future. They are indeed, but they are more than that. They are individuals in the present, with hopes and dreams and innocence, with boundless promise and potential, and – importantly – with human rights. It is those who have come before, including those who have the privilege of being in positions or professions of power and influence, who must ensure those rights are upheld, and that potential is realised, for all children, everywhere. R. Santhanakrishnan President, Commonwealth Lawyers Association Table of Contents PART FOUR: RECOMMENDATIONS 35 OVERVIEW 01 CONCLUSION 39 INTRODUCTION 04 ANNEX I: COUNTRY SNAPSHOT BY REGION PART ONE: CHILD MARRIAGE AND ITS IMPACT 06 40 What is child marriage? 07 Africa 40 Who does child marriage affect? 07 Asia 57 The causes of child marriage 08 Caribbean & Americas 65 The impact of child marriage 09 Europe 75 The prevalence of child marriage within the Commonwealth 10 The Pacific 78 Africa 12 Asia 12 ANNEX II: RATIFICATION DATES OF INTERNATIONAL Caribbean & Americas 13 89 Europe 13 CONVENTIONS The Pacific 13 PART TWO: CHILD MARRIAGE IN INTERNATIONAL 14 ANNEX III: COMMITTEE ON THE RIGHTS OF THE CHILD: 95 AND REGIONAL MECHANISMS COMMENTS ON CHILD MARRIAGE AND BIRTH/MARRIAGE REGISTRATION Child marriage and international law 15 United Nations resolutions and development goals 19 ANNEX IV: PROVISIONS OF INTERNATIONAL 133 Universal Periodic Review 21 AND REGIONAL INSTRUMENTS RELEVANT Commonwealth mechanisms 21 TO CHILD MARRIAGE Regional mechanisms applicable in Commonwealth countries 22 Africa 23 ENDNOTES 137 Asia Pacific 24 Europe and Americas 24 PART THREE: CHILD MARRIAGE AND DOMESTIC LAW 25 IN THE COMMONWEALTH Can the law make a difference? 26 Constitutional provisions relevant to child marriage 26 in the Commonwealth Legislation on minimum ages for marriage 28 in the Commonwealth Other domestic laws relevant to child marriage 30 in the Commonwealth How the Commonwealth compares globally in respect of laws against child marriage 32 Case law on child marriage in the Commonwealth 32 India 33 South Africa 33 Uganda 33 Tanzania 34 Table of Figures Overview More than 720 million women alive today were married as children. The Commonwealth plays a disproportionate role in the problem, accounting for 58.5 per cent of all child marriages in the world, despite only having 32 per cent of the global population. 10 Around 375 million women alive today, from Commonwealth member states, were married or in union Figure 1: Percentage of global before their 18th birthday. This is over 16 per cent of the Commonwealth’s population, and amounts population living in the Commonwealth to 52 per cent of women aged over 18 years old in the Commonwealth. compared with percentage of global child marriages occurring in the Commonwealth Approximately 8.8 million females in the Commonwealth are married as children annually, 11 which is 24,000 girls every day, or 17 girls every minute. Child marriage leads to lower levels of education, health, economic status and social potential of girls Proportion of child marriage Figure 2: and women; premature sexual activity akin to rape, and early childbearing; higher maternal mortality globally that occurs in the Commonwealth and infant mortality; serious health risks and complications during pregnancy, such as obstetric fistula, infections and heavy bleeding; higher incidences of domestic violence and abuse; 11 and the perpetuation of illiteracy and poverty. Figure 3: Prevalence rate of child marriage in Commonwealth member states Complications during pregnancy and childbirth are the leading cause of death of girls aged 15 – 19 globally. 16 Worldwide, among women aged 20 to 24, one in four were child brides, married before they were 18. Figure 4: Key provisions in the UN The rates of child marriage are highest in South Asia, where approximately one in two girls Convention on the Rights of the Child are married off before the age of 18. This is followed by sub-Saharan Africa, where around four in 10 relevant to child marriage girls are married before age 18. 27 Child marriage is a clear instance of discrimination on grounds of sex and gender-based violence Figure 5: Percentage against girls. of Commonwealth countries with constitutions expressly meeting Of the nine known countries where more than 10 per cent of boys were married before age 18, the international standard of a minimum only one is in the Commonwealth. marriageable age of 18 Commonwealth legal systems are disproportionately deficient at addressing the problem of child 27 marriage globally. Figure 6: Commonwealth countries Eighty-six per cent of Commonwealth countries have no constitutional provisions requiring that have constitutional exceptions a marriageable age of 18 or over, and only six per cent clearly mandate 18 as the minimum age to gender equality in laws relating for marriage. 28 to marriage While 88 per cent of Commonwealth countries have constitutions that contain non-discrimination Figure 7: Commonwealth countries provisions that protect against discrimination on the basis of gender or sex, nearly half of those with an absolute minimum marriage age (46 per cent) maintain an exception to this protection for laws that relate to family or personal of 18 or older matters, including marriage. 29 Only nine Commonwealth countries legislate for an absolute minimum age of marriage of 18 or higher. Figure 8: Commonwealth countries In some Commonwealth countries, girls can lawfully be married as young as 14 or 15 years old, with an absolute minimum marriage age while in ten countries there is no absolute minimum age at which children can be married. of less than 18 years While sexual offences against children are criminalised to some degree in all Commonwealth 30 countries, child marriage is only explicitly criminalised in a few countries. Even where it is criminalised, Figure 9: Commonwealth countries legal loopholes can mean that these crimes are rarely prosecuted. with no absolute minimum age of marriage 1 Nearly all Commonwealth countries have laws mandating the registration of births and marriages, however, due to poor enforcement of these laws, the rates at which births and marriages are registered remain low in many Commonwealth countries.