Enforceability Of Age Limit For Marriage

5.0 Conclusion and Recommendations
5.1 Conclusion
It is important for any given country to have a minimum age of marriage as this legally protects children from abuse, harm, violence and exploitation (especially sexual exploitation). Article 2 of the African Charter on the Rights and Welfare of the Child (ACRWC) and Article 1 of the Convention on the Rights of the Child (CRC) define a child as a person aged below 18. Marrying off persons aged below 18 therefore amounts to child marriage and this is a harmful practice which must at all cost be prohibited, as it curtails children’s right to education, reduces their chances of survival by putting their health at risk, and hampers national development, among a myriad of other negative consequences.

As a harmful practice, child marriage is prohibited by international and regional standards. When the ACRWC was adopted in 1990, one of its unique features was the entrenchment of Article 21(2), which provides that ‘child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory’. Even though both girls and boys fall prey to child marriage, in most cases it is girls who are the victims. Thus, most societies adopt discriminatory practices by sending boys to school and giving girls into marriage. This is contrary to the protection provided by Article 21 of the ACRWC. To further ensure that girls are protected from such practices, the African Union in July 2003 also adopted the African Women’s Protocol, whose Article 6 sets the minimum age of marriage for women at 18 years and prohibits harmful practices. Similarly, Regional Economic Communities have also stressed the importance of having a minimum age of marriage that is not below the age of 18 as demonstrated by the 2008 SADC Protocol on Gender and Development which provides in Article 8(2) that ‘ legislation on marriage shall ensure that: no person under the age of 18 shall marry’. However, Article 8(2) of the SADC Protocol goes further to say that ‘unless otherwise specified by law which takes into account the best interests and welfare of the child.’ Such kind of provision is of course problematic as it leaves room for differentiated regulation regarding minimum age of marriage in different countries, and sometimes within the same regime, as is the case in some States like Nigeria, which is a Federal.

Within the UN, a notable document that clearly defines the minimum age of marriage as 18 is Paragraph 36 of the 1994 General Recommendation No. 21 of the CEDAW Committee, on equality in marriage and family relations.
In line with these standards, 32 African countries have set the minimum age of marriage at 18 for both girls and boys while in Algeria, Lesotho, Libya and Rwanda, the minimum age of marriage is above 18 for both girls and boys.
In 18 African countries, the minimum age is either discriminatory or below 18, with Sudan having the lowest minimum age of marriage at 10 for boys and puberty for girls for Muslim marriages (which are the most prevalent) and 13 for girls and 15 for boys for non-Muslim marriages.

In Africa, three different legal approaches have been adopted in so far as child marriage is concerned. There are those countries which criminalize premature, early or child marriages; those which ban or invalidate marriage below the legally prescribed minimum age; and those which merely prescribe a minimum age of marriage without expressly criminalizing or banning it, even though the consequence may be the same as express prohibition of child marriage.

One of the major challenges in enforcing minimum age of marriage legislation is that this is a practice embedded in beliefs associated with cultural and sometimes religious norms, which are not easy to change. Consequently, early marriage is not viewed as a criminal offence, as families view it as a culturally legitimate practice. Addressing attitudes and customs that promote or condone the practice is vital to changing the legally acceptable minimum age of marriage.

Sometimes this is also perpetuated by the prevalence of plural legal systems pertaining to marriage, of which many societies tend to opt for the traditional system as traditional norms relate to the lives of the citizens. This is the state of affairs in Nigeria. This challenge has often been cited by the United Nations Committee on the Rights of the Child (UN Committee) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), as a major challenge in the fight against child marriages.

Another challenge is that there is a lack of national monitoring and enforcement mechanisms for those who flout the law. This is also further compounded by the fact that not all countries have specialized justice systems with Children’s Courts and Child Protection Units across all regions. It is therefore not easy to access child-friendly mechanisms to enforce violations of protection from child marriage. In addition birth registration systems are not effective in most African countries hence it is not possible sometimes to determine the actual age of a person claiming to be old enough to marry.

Furthermore, in some cases, there are no provisions for legal consequences for those who contravene the minimum age of marriage legislation. In such instances although the legislation may provide that child marriage is either invalid or prohibited, there is no penal element, or sanction associated with such an act, which therefore adversely affects the enforcement of minimum age of marriage provisions in national legislation.

International and regional standards are very important in protecting children from child marriage. Eighteen years is the internationally and regionally established minimum age of marriage as per the African Charter on the Rights and Welfare of the Child and other instruments. All countries which have ratified these instruments have an obligation to take legislative and other measures to implement the provisions of those instruments.

There is no value in countries ratifying Conventions if they do not align their legislation and policies with the international and regional standards.

5.2 Recommendations

Specialized courts are needed. Children who marry under customary law should be able to seek recourse through the formal justice system. Child marriage may in most cases not infringe the customary law under which the child was married unless the law specifically provides for a specific minimum age for those who marry under customary law, and that minimum age of marriage under customary law has been infringed, in which case, the marriage may be nullified and damages may be claimed by the girl (but this is very unlikely). Therefore, the best recourse for the child is the formal justice system where the child may claim compensation in the form of damages, or where the ‘partner’ may face criminal sanctions in systems where child marriage has been prohibited and criminalized. For example, in the Comoros, where the minimum age of marriage is 18, Section 299 of the Comoros Penal Code (1982) provides that ‘whoever, when it comes to consummation of a marriage under the traditional law has done or attempted to perform the sexual act on the person of a child under 13 years of age or immature will be punished by two to five years imprisonment’. Thus, while recognizing traditional marriages, the law provides for special protection for children aged below 13, such that it is not a defence to claim that one has been married to the child under the customary law regime. This form of legislation should be incorporated in both the Criminal Code and the Penal Code.

If all African countries respect and meet their obligations under the ACRWC, first of all to take legislative measures by setting 18 years as the minimum age of marriage; secondly to take other measures by ensuring that systems are in place for protecting children from entering or being forced to enter into marriage; and thirdly, to submit periodic reports to treaty bodies on how they are actually ensuring that children are protected from marriage, the rate of child marriage would be significantly reduced and societal attitudes would easily be changed to understand that it is a violation of children’s rights to allow or force them to get married before the age of 18.

In compliance with the above Charter and the UN Convention, the Child’s Rights Act 2003 was enacted by the National Assembly. Section 21of the Act provides that “No person under the age of 18 years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void and of no effect whatsoever.

The Child Rights Act of 2003 is in conformity with the universally accepted age of marriage and it has taken into consideration the best interest of the child in all aspects like right to health, education, dignity and right to protection from sexual abuse. The incidence of VVF which is common in the Northern part of Nigeria could be prevented if this law is domesticated by all states of the Federation.

Nigeria being a member of the United Nations Organization and African Union, we have a duty or obligation to respect conventions and charters ratified by our National Assembly or government.