International Law and Child Marriage in Africa

Author:John M. Mbaku
Position:Weber State University & The Brookings Institution
Pages:103-244
SUMMARY

In recent years, civil society organizations in many countries around the world, as well as international organizations, such as UNICEF, have redoubled their efforts to end child marriage, prevent girls from marrying too young, and provide support for those girls that were already married as children. Child marriage is generally understood as a marriage or union-whether formal or informal-in... (see full summary)

 
FREE EXCERPT
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2020 e Institute for Migrant Rights Press
INTERNATIONAL LAW AND CHILD
MARRIAGE IN AFRICA
John Mukum Mbaku
Weber State University & he Brookings Institution
E-mail: jmbaku@weber.edu
In recent years, civil society organizations in many countries around the world,
as well as international organizations, such as UNICEF, have redoubled their ef-
forts to end child marriage, prevent girls from marrying too young, and provide
support for those girls that were already married as children. Child marriage is
generally understood as a marriage or union—whether formal or informal—in
which at least one of the parties is under 18 years of age. International organiza-
tions, such as the United Nations, have recognized child marriage as a violation
of the human rights of the children involved and a practice that disproportion-
ately aects women and girls globally. Human rights, including those of girl-chil-
dren, are the purview of international law. Nevertheless, since the international
community does not have a global government that can enact laws against child
marriage and make certain that these laws are enforced, legal scholars have ar-
gued that the most important mechanism for the enforcement of international
law, including international human rights law, is for each ratifying government
to domesticate the treaties that they sign and ratify and hence, create rights that
are justiciable in domestic courts. Where countries have not yet international-
ized their national constitutional law, courts can use their interpretive power
to bring each country’s law into conformity with the provisions of internation-
al human rights instruments. An examination of two cases dealing with child
marriage, one from the United Republic of Tanzania and the other from the
Republic of Zimbabwe, shows that courts in these African countries are grad-
ually developing a jurisprudence that eectively addresses the problem of child
marriage and its impact on the rights of children.
Keywords: Human Rights, Forced Marriage, Children’s Rights, Law and Develop-
ment, Comparative Law.
VII Indonesian Journal of International & Comparative Law 103-244 (April 2020)
104
Mbaku
INTRODUCTION
On March 8, 2016, International Women’s Day, the U.N. Children’s Fund
(“UNICEF”) and the U.N. Population Fund (“UNFPA”) announced a
new initiative, which both agencies argued, would help bring an end to
child marriage by 2030.1 e initiative, as made clear by UNICEF and
UNFPA, “is part of a global eort to prevent girls from marrying too
young and to support those already married as girls in 12 countries
across Africa, Asia and the Middle East where child marriage rates are
high.2 As argued by the UNFPA’s Executive Director, Dr. Babatunde
Osotimehin, “[c]hoosing when and whom to marry is one of life’s most
important decisions. Child marriage denies millions of girls this choice
each year.3 Dr. Osotimehin went on to state that “[a]s part of the global
program, [the U.N. agencies] will work with governments of countries
with a high prevalence of child marriage to uphold the rights of adoles-
cent girls, so that girls can reach their potential and countries can attain
their social and economic development goals.4
Child marriage is usually dened as “any formal marriage or
informal union where one or both people are under 18 years old.5 A
forced marriage, involves the situation in which “one or both people [to
the marriage] do not consent to the marriage and pressure or abuse is
used” to get them to acquiesce.6 e type of pressure imposed on parties
to a forced marriage may include “threats, physical or sexual violence,
and nancial pressure.7 Since a child “cannot provide informed
consent,” child marriage is, by denition, forced. It is, therefore, a
1. Oce of the U.N. Secretary-General’s Envoy on Youth, New UN Initiative
aims to protect millions of girls from child marriage, Mar. 8, 2016, https://news.
un.org/en/story/2016/03/523802-new-un-initiative-aims-protect-millions-
girls-child-marriage#.Vt8pqrK71 (last visited on December 16, 2019).
2. Id.
3. Id.
4. Id.
5. ActionAid (U.K.), Child Marriage, https://www.actionaid.org.uk/about-us/
what-we-do/violence-against-women-and-girls/child-marriage.
6. Id.
7. Id.
105
International Law and Child Marriage in Africa
Mbaku
violation of a child’s rights.8
According to the United Nations,
Child marriage, or early marriage, is any marriage where
at least one of the parties is under 18 years of age. Forced
marriages are marriages in which one and/or both parties
have not personally expressed their full and free consent to
the union. A child marriage is considered to be a form of
forced marriage, given that one and/or both parties have not
expressed full, free and informed consent.9
e U.N. has also stated that “[c]hild, early and forced marriage
(CEFM) is a human rights violation and a harmful practice that
disproportionately aects women and girls globally, preventing them
from living their lives free from all forms of violence.10 In addition
to the fact that CEFM “threatens the lives and futures of girls and
women around the world,” it also robs them of “their agency to make
decisions about their lives, disrupting their education, making them
more vulnerable to violence, discrimination and abuse, and preventing
their full participation in economic, political and social spheres.11
Although child marriage aects both boys and girls, girl-children
are more likely, than boy-children, to be forced into this practice. Child
marriage aects virtually every region of the world and hence, it is a
global problem. Nevertheless, it is most prevalent in sub-Saharan
Africa and South Asia, particularly in Niger, Central African Republic,
Bangladesh, and India.12 ActionAid (U.K.), a global non-governmental
organization that works to help women and girls living in poverty, has
determined that “[i]n many communities across these regions, girls are
being violently abducted before being forced to marry their captors,
8. Id.
9. Oce of the U.N. Commissioner for Human Rights, Child, early and forced
marriage, including humanitar ian settings, https://www.ohchr.org/EN/Issues/
Women/WRGS/Pages/ChildMarriage.aspx (last visited on December 30,
2019).
10. Id.
11. Id.
12. Id.

To continue reading

REQUEST YOUR TRIAL