By: Ana Garcia-Velez
Child marriage is defined as any “formal marriage or informal union between a child under the age of 18 and an adult or another child.” It is an egregious human rights violation that robs children, predominantly girls, of protections, opportunities, and, most significantly, their childhood. Girls who marry before the age of eighteen are more likely to experience domestic violence and impaired health, employment, and educational outcomes. Although the practice is declining, it is estimated that one in five women aged twenty to twenty-four were married as children—that equates to about 640 million women alive today who were married as child brides. Until these numbers reach zero, the international and regional human rights systems, along with stakeholders—including local governments, NGOs, women’s groups, religious leaders, and individuals—must work together to eradicate this destructive practice. Although child marriage persists across the globe, the African continent is home to the nations with the highest rates of child marriage, including Niger, the Central African Republic, Chad, Mali, and South Sudan. Child marriage is sometimes defended on account of religious or cultural practices; however, international bodies have stated that this is not the case. There is no legitimate justification that serves to perpetuate this human rights violation.
The African Human Rights System is an organ of the African Union and serves as the region’s human rights body, much like the Inter-American and European systems. It is comprised of the African Commission on Human and Peoples’ Rights (ACHPR), the African Court on Human and Peoples’ Rights (AfCHPR), and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The Banjul Charter is the foundational treaty of the African system and sets out many of the central rights and duties afforded under this framework, including the creation of institutions such as the Commission. The Charter is one of many regional agreements entered into by African states. Child marriage offends many of the rights set out in the Banjul Charter, including (but not limited to): Article 15 (the right to work under equitable and satisfactory conditions), Article 16 (the right to enjoy the best attainable state of mental and physical health), Article 17 (the right to an education), Article 18 (the duty of the state to protect the rights of women and girls as stipulated in international treaties), and Article 19 (the right of all people to be equal and free of domination by another). Article 18, in particular, draws meaning from the protections offered by international treaties like the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), which clearly articulates that any marriage of a child “shall have no legal effect.” Moreover, child marriage is illegal under African regional law, as both the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and the African Charter on the Rights and Welfare of the Child set the minimum age for marriage at eighteen. It is undeniable that child marriage is fundamentally incompatible with African law, and yet it persists—at relatively high rates—in many nations. Human rights bodies have provided guidance on this issue in an attempt to reconcile the tradition of marriage with African law.
In a joint statement, the ACHPR and the ACERWC, as part of their campaign to eradicate child marriage, issued guidance to states on how to address this issue. Their recommendations include adopting legislation, enacting constitutional reform, and instituting enforcement mechanisms and educational programs. States are encouraged to adopt legislation ensuring that any marriage involving a child under the age of eighteen is strictly prohibited. Moreover, “[l]egislative measures that prohibit child marriage must take precedence over customary, religious, traditional, or sub-national laws.” Constitutional reform establishing the minimum age for marriage at eighteen should also be undertaken by states to buttress the protections afforded by national legislation. With regard to institutional mechanisms, the ACHPR and ACERWC emphasize the importance of marriage verification procedures, including instituting a mandatory birth record verification process by marriage officers. Educational reform is also of paramount importance in this area. States are highly encouraged to adopt policies designed to keep girls in school and, crucially, to develop frameworks that allow married girls to continue their education. Especially successful programs “ensur[e] that sanitary facilities are available to girls at school [and] reduc[e] the exposure of girls to violence at or whilst making their way to school.” The ACHPR and ACERWC’s guidance on these strategies is crucial; however, these steps represent only the starting points.
Many countries with high rates of child marriage have already passed national legislation banning marriage for those under the age of eighteen, and yet the practice nonetheless persists. It is also important to note that this problem exists globally—it is not unique to the African continent. True progress in eradicating child marriage will only come when we, as a global community, address the societal and religious norms underlying the practice—those that limit the educational and employment potential of young girls. Research has shown that, along with factors like poverty and instability, religion (without regard to any specific faith) and tradition are driving forces of child marriage. For example, parents may feel societal pressure to marry their daughters before they reach adulthood to prevent them from “becoming sexually active before marriage and bringing dishonor to her family and community.” Collaboration with religious and community leaders is therefore key to dismantling the ideals at the core of such societal stigmas. In fact, studies have found that “[r]eligious leaders may also hold the key to changing social norms around the expected age at marriage for girls,” as these leaders are often “the most important source of information for young people.” The ACHPR and ACERWC also emphasize the importance of a multi-sectoral approach to developing national action plans—one that includes government actors, civil society representatives, and religious leaders.Child marriage remains an all-too-common human rights violation that must be addressed not only through legislative and constitutional action and institutional reform, but also—and, arguably, most importantly—through dialogue with religious and societal leaders to uproot the harmful norms that perpetuate it. The process of eradicating child marriage begins in local communities and must involve religious and cultural leaders, as well as younger generations, to transform the social foundations that allow this practice to endure.
