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The Contribution of Laws to Change the Practice of Child Marriage in Africa

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The Contribution of Laws to Change the Practice of Child Marriage in Africa The contribution of laws to change the practice of child marriage in Africa Authors: Joar Svanemyr, Elisa Scolaro, Karel Blondeel, Venkatraman Chandra- Mouli, and Marleen Temmerman. Inter-Parliamentarian Union Geneva, October 2013. Page | 1 Content Foreword Acknowledgements Acronyms Executive summary 1. Introduction Objectives Definitions 2. Methods 3. Background Prevalence Trends Socio-economic causes underpinning child marriage Health consequences of child marriage International and regional legal frameworks – commitments among African countries Parliamentarian roles and responsibilities 4. Findings National legislations Child marriage as a criminal act Plural legal system Comparative assessment of 10 countries 5. Discussion Impact of laws on the practice of child marriage and other harmful practices Laws as a an enabling environment for child marriage prevention programs Implementation and enforcement of laws Programs to support legal reforms and mechanisms Possible adverse effects of enforcement Research needs 6. Recommendations Legislation and legal mechanisms Implementation Enforcement Other laws Contextual factors Recommendations for research 7. Conclusions Page | 2 FOREWORD As part of the democratic process Parliamentarians perform several key functions. In addition to representing their Constituents Parliamentarians develop policies and legislation, approve public expenditure budgets, and hold government to account. Having access to current analysis and relevant information assists Parliamentarians in making informed decisions when shaping legislation and public policy. In this context Parliamentarians perform a critical role in positioning women’s health at the centre of the political discourse and ultimately in promoting the rights of women and girls. The Pan Africa Parliament (PAP) and Inter-Parliamentary Union (IPU) share a commitment to facilitating parliamentary action in order to promote woman, newborn and child health issues. A key area of concern is the wide spread practice of early marriage throughout the African continent. In October 2012 the PAP, with the support of the IPU, hosted the Annual African Women Parliamentarian’s Conference in Johannesburg.. The October 2012 conference resulted in a set of resolutions adopted by the PAP. The IPU and the PAP continue to pursue collaborative initiatives on the implementation of some of the resolutions, thereby contributing to the implementation of the resolution on maternal, newborn and child health adopted by the IPU in March 2012 in Kampala, including resolution 3: Resolution 3- “To work towards specific parliamentary review and harmonize national registration and child marriage with the Maputo Protocol on African Women’s Rights and call for the removal of negative clauses and inconsistencies such as so called ‘parental consent’ that permit criminal and early marriage of children below the age of 18”. IPU and PAP hope that this report will endeavor to inform and enable decision makers to utilize the findings to develop improved policies and programmes to address child marriage. In the long term, it is the objective of PAP and IPU to contribute to strengthening legislation that discourages the practice of early marriage in African countries. ACKNOWLEDGEMENTS This report on the contribution of legislation to change the practice of child marriage in Africa was prepared by the Department of Reproductive Health and Research, World Health Organization. IPU and PAP greatly extends its appreciation to all institutions and individuals who contributed in one way or another to the successful completion of this study. We also thank development partners, national agencies, Non-Governmental Organizations and individuals who were interviewed or commented on the draft report for providing their time, ideas and mainly sharing experiences from which this report draws. Page | 3 ACRONYMS ACFP African Child Policy Forum ACERWC African Committee of Experts on the Rights and Welfare of the Child ACRWC African Charter on the Rights and Welfare of the Child AWEPA Association of European Parliamentarians with Africa CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Convention on the Rights of the Child DHS Demographic Health Survey FGM/C Female Genital Mutilation/Cutting IPU Inter-Parliamentary Union MDG Millennium Development Goals MICS Multiple Indicators Cluster Survey PAP Pan-African Parliament UNFPA United Nations Population Fund UNICEF United Nations Children’s Fund WHO World Health Organization Page | 4 EXECUTIVE SUMMARY Despite the increasing attention to the custom of child marriage, the practice is still very widespread. According to recent data, one in three girls (34%) in the developing world (excluding China) enters marriage by the age of 18. One in nine girls (12%) is married before the age of 15. Nine out of the ten countries with the highest rates of child marriage are in sub-Saharan Africa. The main objective of this report is to provide Parliamentarians with 1) a clear overview on the practice of child marriage throughout Africa; 2) assess the status of laws on child marriage in 10 African countries; and, 3) examine the impact of legislation on the practice of child marriage, and 4) present recommendations for laws, policies and research. Gender inequality, poverty, exclusion, marginalization and insecurity are some of the factors that contribute to the practice of early marriage. The consequences of child marriage include poorer health outcomes, lower level of education attainment, higher risk of violence and abuse, together with persistent poverty and missed opportunities for girls and women’s empowerment. With the adoption of the Universal Declaration on Human Rights (1948), and similar international conventions on human rights and on the rights of the child, child marriage is considered a violation of human rights. In line with international and regional standards, 32 African countries have set the minimum age of marriage at 18 or higher for both girls and boys. Although several countries have adopted strong legal systems setting the minimum age of marriage and criminalizing the practice the impact of these laws and associated efforts seems to be very limited. Despite a lack of information and research on the topic, the review demonstrates that there is little or no correspondence between the strength of the legislation on the minimum age of marriage and child marriage rates. Where changes have been observed the causal relation with legal reforms or legal mechanisms has yet to be demonstrated. As the case studies presented in the report suggest, declining rates of child marriage are commonly explained by societal factors such as increased education for girls, community outreach programmes and in some cases, violent conflicts. Overall there is a glaring lack of programs to build awareness about the law and of systematic enforcement. In order to set a strong legal framework for protecting girls from child marriage key recommendations include: 1) setting a minimum age for marriage at 18 years old; 2) providing for no exceptions upon parental consent or Court’s authorisation; 3) criminalising child marriage and enforcing clear sanctions. Although legislation to set a minimal age has a central role in the definition of a strong legal framework, legal reforms need to be combined with clear implementation measures, including budget allocation, practical action plans, and development of relevant tools and mechanisms to train public officials and set up specialized courts. Laws can be effective only if enforcement measures are in place. However, enactment and enforcement must be carefully designed in order to avoid the practice to go underground and cause increased disobedience and lower compliance with the laws. Legal reform in this area will only be effective if combined with other tools to raise awareness among the local communities, and comprehensive strategies to address the main drivers of child marriage, such as poverty, gender inequality and security. Page | 5 1. Introduction One in three girls (34%) in the developing world (excluding China) is married by the age of 18. One in nine girls (12%) marries before the age of 15. Nine out of the ten countries with the highest rates of child marriage are in sub-Saharan Africa. Child marriage has a devastating impact on many aspects of children’s lives including their physical, psychological, and emotional development but also in terms of social and economic outcomes. This is a public health issue as well as a human rights violation. To enact and enforce national legislation that raises the legal age of marriage for boys and girls to 18 is frequently presented as one of the most important measures to be taken in order to address this problem.1 International declarations and conventions, which have been developed and endorsed by the international community, provide the longstanding legal framework to prohibit and reduce child marriage to a form of human rights violation. Legal instruments have been developed and adopted by most countries. Despite this, with a few exceptions, little change of the practice has been observed globally. Parliamentarians can provide an important contribution to creating awareness of child marriage and signaling that the practice needs to end. Parliamentarian’s role however should not be limited to drafting laws and regulations. Parliamentarians should strive to ensure that child marriage is a critical issue on the political agenda and follow up in close collaboration
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