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Using the Law to End Child, Early & Forced Marriage

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Using the Law to End Child, Early & Forced Marriage PROTECTING THE GIRL CHILD LEGAL ANNEX USING THE LAW TO END CHILD, EARLY AND FORCED MARRIAGE AND RELATED HumAN RIGHTS VIOLATIONS JANUARY 2014 FRONT COVER PHOTO Krishna is from a village near Baran, located in the northwestern state of Rajasthan. She was married when she was 11 years old. When she was 13 years old she had a difficult delivery when she gave birth to her son, losing a lot of blood and remaining in the hospital for several days. The legal age for marriage in India is 18, but marriages like these are common, especially in poor, rural areas where girls in particular, are married off young. Picture taken July 17, 2012. REUTERS/Danish Siddiqui FOREWORD Every three seconds, a girl under the age of 18 is married somewhere in the world to a man she has never met. In many cases, she is traded off as a commodity to pay off debts, settle disputes or cement strategic alliances between families. Child marriage is one of the biggest obstacles to development. Every year, it steals the innocence of 10 million of girls worldwide, condemning them to a life of poverty, ignorance and poor health. Girl brides are five times more likely to die in child birth than women in their 20s. They are also more likely to suffer from fistula, contract HIV- AIDS from their husbands, and to experience abusive relationships with their in-laws. The UN Convention on the Rights of the Child considers marriage before the age of 18 a human rights violation yet, in an evident clash between tradition and the rule of law, in countries like Niger, Chad and Mali, more than 70% of girls are married before the age of 18 (ICRW). This report is the result of a partnership between TrustLaw, Equality Now, Latham & Watkins and a number of domestic firms. The study offers a comparative analysis of the laws that govern child marriage in Afghanistan, Bangladesh, Cambodia, Chad, Eritrea, Guatemala, India, Mauritania, Morocco, Pakistan, Panama, Papua New Guinea, Saudi Arabia, Swaziland, Tajikistan, Thailand, Uganda and Yemen. I am incredibly grateful to the contributing law firms and their team of lawyers for committing their time and expertise to this project and making this report possible. At the Thomson Reuters Foundation we have an unwavering commitment to strengthening human rights through the rule of law. With TrustLaw, we connect the best law firms and corporate legal teams around the world with NGOs and social enterprises in need of free legal assistance. With the Trust Women Conference we forge tangible commitments to empower women to know and to defend their rights. I am confident that this report will become a strategic tool to support advocates like Equality Now, legislators, policy makers and civil society in their fight to end the heinous practice of child marriage. Let’s carry on working together to guarantee that young girls are truly valued, kept safe, educated, and empowered to marry when and who they choose. MONIQUE VILLA CEO, Thomson Reuters Foundation II ACKNOWLEDGEMENTS Equality Now is grateful to TrustLaw Connect for its assistance in securing the help of Latham & Watkins to undertake this work and its oversight and to the following law firms who provided legal research and commentary in the countries indicated: AQLAAL Advocates (Pakistan), Ashurst Australia (Papua New Guinea), Bafakih & Nassief Lawyers and Legal Consultants (Saudi Arabia), Dr Kamal Hossain & Associates (Sara Hossain) (Bangladesh), Kirthi Jayakumar (India), MMAKS Advocates (Uganda), P&A Asia (Cambodia), Tilleke & Gibbins (Thailand), and Webber Wentzel (Swaziland). Our thanks go to all of them for their considerable time and commitment. The tables below reflect a summary of the relevant jurisdiction’s treatment of child marriage. They also reflect some relevant provisions on the subject of child marriage under the national legal framework, primarily if they have been made publicly available in the English language. The summaries do not constitute legal advice under any circumstance. III DISCLAIMER The chapters below reflect a summary of the relevant jurisdiction’s treatment of child marriage. They also reflect some relevant provisions on the subject of child marriage under the national legal framework, primarily if they have been made publicly available in the English language. The summaries do not constitute legal advice under any circumstance. IV TABLE OF CONTENTS Foreword ..................................................................II ACKnowledgements ................................................ III INTRODUCTION .......................................................... VII case studies .............................................................. 1 AFGHANISTAN ............................................................. 1 BANGLADESH .............................................................12 CAMBODIA ................................................................ 23 CHAD ...................................................................... 37 ERITREA ................................................................... 46 GUATEMALA .............................................................. 55 INDIA ...................................................................... 64 V MaURITANIA ............................................................. 75 MOROCCO ................................................................ 90 PAKISTAN ................................................................ 100 PANAMA ..................................................................115 PAPUA NEW GUINEA (PNG) ............................................ 125 SaUDI ARABIA .......................................................... 146 SWAZILAND ............................................................. 157 TAJIKISTAN .............................................................. 168 THAILAND ............................................................... 183 UGANDA ................................................................. 194 YEMEN .................................................................. 206 COMPILED BY LaTHAM & WaTKINS LLP IN COLLABOraTION WITH AQLAAL ADVOcaTES (PakISTan), ASHurST AUSTraLIA (PaPua NEW GuINEA), BaFakIH & NASSIEF LaWYERS anD LEGAL CONSULTanTS (SauDI AraBIA), Dr KAMAL HOSSAIN & ASSOCIATES (BanGLADESH), KIRTHI JayakuMAR (InDIA), MMAKS ADVOcaTES (UGANDA), P&A ASIA (CAMBODIA), TILLEKE & GIBBINS (THAILanD) anD WEBBER WENTZEL (SWAZILanD). January 2014 VI INTRODUCTION When a young girl starts out in life, where will her journey take her? What if instead of being treated as someone’s property to be betrothed, raped, abused, sold, with no power over her destiny, a girl is healthy, safe, educated, and empowered? What if instead she has the ability to freely make informed decisions regarding whom, when and if she marries, and when and if she wants to have children? What if instead she is respected and valued by her community and is educated, able to pursue a non-exploitative career, able to invest in the economy and participate politically in a non-discriminatory atmosphere, able to live her life to the fullest based on her own choices and abilities? The text above is an excerpt from Equality Now’s ‘Protecting the Girl Child: Using the Law to End Child, Early & Forced Marriage & Related Human Rights Violations’ report to which this research contributed. This Legal Annex considers the legislation concerning child marriage is 18 countries. The country reports look at not only the pure legal provisions relating to age of marriage, but also the extent to which they have been enforced, if at all, and the law and practice of some related issues. These include laws relating to bride price/dowry; statutory rape laws that are circumvented through marriage; availability of child protection services when escaping child marriage; legal requirements for registration of birth and/or marriage; and, schooling for girls. They also identify the intersection between child marriage and other social and legal issues, such as gender-based violence, human trafficking, exploitation, nationality, FGM, and force feeding. The picture presented by this legal research is not encouraging. It indicates that, once married, a girl is often trapped in a system where she is at risk of further violence and discrimination. In 2014 Equality Now used this legal research to advocate for change. Please add your voice to the call by signing the global petition. VII AFGHANISTAN LEGAL AGE FOR MarrIAGE AGE OF MARRIAGE The minimum age of marriage for a woman is 16 and the minimum age of marriage for men is 18.1 Exceptions A woman can be married at the age of 15 with the approval of her father or a competent court. A girl can never be married before the age of 15. LEGISlaTION 1977 Civil Code of Afghanistan ARTICLE 70: “Marriage shall not be considered adequate until the male completed the age of 18 and the female the age of 16.”2 ARTICLE 71: “1. Where the girl does not complete the age provided under Article 70 of this law, the marriage may be concluded only through her father or the competent court. 2. The marriage of a minor girl whose age is less than 15 shall never be permissible.” COMMENTARY The existing statutory framework in Afghanistan, first set out in a comprehensive fashion in 1977, is the codification of Sharia law.3 ARTICLE 3 of the Afghan Constitution of 2004 (the “AC”) states that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” However, the AC, unlike previous constitutions, does not give preference to Hanafi jurisprudence. Hanafi jurisprudence
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