SADC model law on child marriage: An update on law Reform in the SADC region
Kelley Moult & Ruth Nekura
Why a Model Law for the Region?
Evidence from at least five states in the SADC region show that roughly 40% of children in those countries are married before they are 18 years old.[i] While the prevalence rates across the continent differ – ranging from about 50% in Malawi to 6 % in South Africa – the average prevalence rate in East and Southern Africa stands at around 34 %[ii]. This means that one-third of young people are married as children - before a child is physically or psychologically ready for the responsibilities and demands of marriage and raising a family.
Child marriage is defined under the Addis Ababa Declaration on Ending Child Marriage in Africa as a legal or religious marriage of anyone under the age of 18. It is widely recognised by scholars and advocates as a multi-faceted and endemic harmful cultural practice which adversely affects the health and well-being of children[iii]. Yet empirical evidence shows that progress in the region on implementing laws to eradicate the problem has been slow[iv].
The Model Law provides a yardstick and an advocacy tool for legislators in the SADC Region, with best practice language which can be easily adapted by Member States in their laws on eradication of child marriage. The Model Law will assist policy makers and legislative drafters to address areas in need of legal reform without usurping the authority of national legislatures to determine the content extent, style and form of their national laws. The SADC model law is thus a significant milestone in the region and provides opportunities for enhancing legal interventions to address child marriage.
What is in the Model Law?
The Model Law provides a framework to guide the actions of member states regards to the domestication, ratification, reservations of standards in international and regional instruments to deal with the problem of child marriage. The Model Law provides clear definitions of terms - such as ‘child’ and ‘child marriage’- to avoid ambiguity and enhance consistency, therefore attempting to provide uniformity in the region, and to give certainty to the law. The Model Law restates rights and concepts relating to the child, and addresses the requisite policy initiatives, measures and interventions that are required to give life to the law’s provisions. Importantly, the Model Law not only highlights the problem and acknowledges that child marriage is endemic in most parts of SADC member states, but in so doing it helps to ensures that the problem can no longer be regarded as a private matter confined within the family.
The law expressly prohibits child betrothal and child marriage and enshrines supportive provisions. The law further provides for prevention and mitigatory measures and urges member states to invest in programmes and incentives to delay marriage, and to provide enhanced access to information and data on child related issues for effective monitoring. The law establishes a Child Marriage Fund for these purposes. The provisions in the law are drafted in a manner that will intends legislative drafters in member states to be able to cut and paste the provisions into domestic Bills with minimum changes required.
What are the Contentious Issues?
Some existing laws in the region still permit child marriage. These laws are sometimes enacted in a discriminatory fashion, which sees gender-based differences in the legal age of marriage, with the legal marriage for girls often being set lower than for boys. Existing laws in the region also provide conditions under which the minumum age for marriage can be deviated from – for example, with parental consent or with the permission of the court or local authority. In contrast, the Model Law sets the legal minimum age of marriage at 18 for both sexes, without exceptions.
Despite concerted advocacy in the region and across the contintent, the issues surrounding child marriage are far from settled. There is widespread contention about what the terms ‘child’ and ‘child marriage’ mean or should mean. Different laws attribute different ages to who a child is, and these disparities are echoed in the differences in how communities perceive the idea of childhood and the appropriate age for marriage (which is often defined through the onset of puberty, rather than by chronological age). Dr Jessie Kabwila, a Malawian feminist activist, argues that this infantilisation of women has fuelled child marriage in the SADC region and other parts of the world, but our research shows that these problematic beliefs that view women as children, while men are seen as adults, remain.[v]
Most countries in the region have pluralistic legal frameworks, and while states’ civil laws may not recognise child marriage, customary or religious laws allow it, creating problems of harmonisation and intersection. Progress towards law and policy reform in the region remains overwhelmingly slow, and are often hampered by problems like a lack of political will to shift the agenda; problems with registration of births which create difficulties in establishing the age of people who seek to be married; and problems in registrations of marriages, which enable child marriages to remain “hidden” from oversight.
How does the Model Law Intersect with Other Efforts in the Region?
There have been commendable reforms taking place in the region which build and reflect the intent and purpose of the Model Law. The four-year African Union Campaign to End Child Marriage, which started in 2014, opened a space for advocacy and trainign on child marriage on the continent. The Campaign resulted in the adoption of an African Common Position on Child marriage, has seen member states developing national strategies and action plans to entrench the issue on development agendas. Fifteen countries have launched the Campaign to date.
In Zimbabwe on 20 January 2016, the Constitutional Court struck down section 22(1) of the Marriage Act, which allowed children under the age of 18 to marry. The Court ruled that the provision of the Marriage Act was inconsistent with the constitution. Zimbabwe's parliament is also expected to pass a new law that would see parents arrested for accepting lobola (brides-price) for children younger than 18.
In South Africa, the South African Law Reform Commission (SALRC) released publication of its Revised Discussion Paper on Project 138: The Practice of Ukuthwala. The Revised Discussion Paper contains a draft Bill, tentatively titled the Prohibition of Forced Marriages and Child Marriages Bill.
The Zambian President on 5 January 2016 approved the constitutional amendments, of which the provision of the definition of a child in accordance to the definition of a child in the Convention on the Rights of the Child is the highlight. The government of Zambia on 8 April 2016 adopted a national strategy to end child marriage.
In Mozambique, a National Strategy was recently adopted to Prevent and Combat Child Marriage. This is an ambitious across-the-board plan to prevent and combat child marriage by 2019. This was led by the Ministry of Gender, Children and Social Affairs.
In Malawi, one of its traditional rulers Chief Inkosi Kachindamoto annulled over 330 customary marriages in June 2015 – of which 175 were girl wives and 155 were boy fathers – in Dedza district, in the Central Region of Malawi.
Where Do We See Model Law Processes Going?
The model law is a powerful tool for countries that are developing, reviewing or harmonizing their laws related to child marriage, and are seeking to shift its negative impacts. The law will also encourage in-depth research in remote areas that often fall through the cracks of data collection. The Model Law may motivate stiffer penalties to be meted out and enforced against perpetrators of child marriage.
However, implementation concerns abound. While the law adopts a prohibitionist stance criminalizing child marriage, our research shows that law reform is an unwieldy tool through which to push behavior change. It is, in essence, the problem of trying to provide a legal solution to an only partly-legal problem.
As the experience of countries who have reformed their laws on child marriage attests, it is unclear how the model law, if implemented, will be enforced. Our findings show that responding to a problem like child marriage, with its intersectional and multi-faceted drivers, means that challenges in implementation abound. These include a lack of will among police to intervene in cases of child marriage, a paucity of shelters and options for girls who are already married and want to leave their unions, a lack of pathways for girls who are already married (and likely have children) to go back to school and a lack of policy understanding of how to deal with situations of girls who want to remain married, but who will be criminalized and stigmatized as a result.
The success of the Model Law, as with any other law, is dependent on the availability of resources to implement and enforce it, and hangs the readiness of member states to adapt the law to suit their own context. This is a tall order, as our evidence shows the difficulties encountered post law reform by countries across the region as they try to harmonise their often diverse existing legal and policy frameworks, and produce the holistic programmatic strategies that support the implementation of the law on the ground.
The law is nonetheless a welcomed as major step forward in promoting the rights of children, and girls in particular. It holds the potential to shape how the region addresses child marriage, but also provides a much-needed advocacy entry point through which civil society can press for change in the law.
[i] United Nations Children’s Fund (UNICEF), State of the World's Children 2015: Reimagine the Future (2014) Statistical Table 9: Child Protection.
[ii] UNFPA database using household surveys (DHS and MICS) completed during the period 2000-2011, 2013.
[iii] The Addis Ababa Declaration on Ending Child marriage in Africa, 11th April 2014.
[iv] Moult, K; Nekura, R., & Diala, J. ‘The Law on Your Books isn’t the Law on My Mind’: Law Reform on Child Marriage in Southern Africa, University of Cape Town, 2016.
[v] ‘Winds of Change and Parliamentarians fight Child marriage’ in the Sentinel, Quarterly newsletter of the Human & Social Development & Special Programmes programme Vol 3, 2015. http://www.parliament.gov.zm/sites/default/files/documents/articles/The%... Accessed on 4th August 2016.