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Dr Makanatsa Makonese

THERE has been a flurry of legal battles to end child marriages in the Southern African Development Community (Sadc) region over the past few years. Successes have been scored on the legal front at both regional and national levels but equally so there have been some noticeable barriers in the fight against child marriages.

In 2016, the Sadc Parliamentary Forum (Sadc-PF) adopted a regional Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage. The Model Law defines a Child Marriage as “a statutory or customary union in which one party is a child or both parties are children” and defines a child as any person under the age of 18, in line with international human rights law. It goes on to state that “no person under the age of 18 shall marry”.

The Model Law was inspired by and has in turn inspired civil society organisations in the region to advocate for national laws to end child marriages, and where legal and constitutional provisions already exist, to push for implementation. As a result of this activism, the highest courts in the region have outlawed child marriages. In 2016, Zimbabwe’s Constitutional Court declared the country’s Marriage Act (Chapter 5:11) and the Customary Marriages (Chapter 5:07) unconstitutional because the two laws allowed marriages of children under the age of 18. In 2019, the Tanzania Court of Appeal in the case of The Attorney General v Rebecca Z Gyumi similarly outlawed child marriages and declared the provisions in the Marriage Act allowing child marriages unconstitutional, despite spirited attempts by the State to defend the practice on the basis of culture and religion.

Legislatures in the region have done their part to fight child marriages. There have been numerous debates in parliaments across southern Africa about the impact of child marriages on children, families and communities, with legislatures calling for a ban on the practice. While in some of the parliaments, these debates are ongoing, in others, laws have been or are in the process of being passed to fight the practice.

In 2015, the Malawi Parliament passed the Marriage, Divorce and Family Relations Act which outlawed Child Marriages and a 2017 constitutional amendment increased the minimum age of marriage from 15 to 18 for both girls and boys. Zimbabwe has a Marriage Bill in parliament, and the law seeks to comply with the 2013 Constitution, the 2016 Constitutional Court decision and the Sadc Model Law by legislating against child marriages. In 2019, the Mozambican Parliament passed the Law on Prevention and Combating of Premature Unions and revised the country’s Family Law to prohibit marriages of children under the age of 18.

However, despite this flurry of legal battles and efforts by parliaments to end child marriages in Southern Africa, the challenge still remains and children continue to be subjected to early and forced marriages. There are many forces at play. Culture, poverty, pandemics and natural disasters and even government corruption and inequitable allocation of State resources are factors in fuelling child marriages.

Child marriage is a harmful cultural practice and there are a myriad attendant cultural practices that fuel it in the region. Practices such as ukuthwala in South Africa (also known as musengabere in Zimbabwe) still happen in communities, even though many people believe that these are archaic practices that are no longer happening. The practice involves the abduction of a girl or a young woman by a man, his peers, family and friends resulting in the girl or young woman’s family being compelled to engage in marriage negotiations.

Abnormal and repulsive as it has always been, traditionally, the practice did not involve sexual intercourse with the girl whether forced (rape) or consensual until the marriage negotiations had taken place. Today, however, this practice is often accompanied by the rape of the abducted girl. In May 2020, three men from Binga, in Matabeleland North province kidnapped a 17-year-old girl in the name of ukuthwala. One of these men raped the young girl, told her that she was now his wife and introduced her to his family as such. Fortunately, the police moved in swiftly, arrested the trio and charged them with rape.

The Olufuko Festival in Namibia is supported by many, including high level government officials. The country’s former president Sam Nujoma approved the resuscitation of the practice of Olufuko in 2012, which had long been moribund. To many others, the festival is controversial, like Eswatini’s reed dance, which has been a point of contention in the region for years. Olufuko is an Ovambo word meaning “wedding” or “to be wed.”

As part of the festival, girls as young as 14 (some literature claim girls can be as young as 12) participate in the traditional initiation ceremony. Its proponents claim that it prepares girls for marriage, childbearing, and caring for a family. Participants view these girls as “brides-in-waiting.” The gifts these men supply serve as expressions of intent to secure the young girl of their choice, highlighting a problematic objectification of young children.

Researchers found that girls who refuse to take part have been threatened and told their parents would suffer harm.
Key human rights organisations, such as NamRights and various churches, have rejected and condemned the practice. In 2019, NamRights brought a constitutional challenge against the practice to the country’s Supreme Court.

However, the court dismissed the challenge on the basis that NamRights did not have locus standi, or the legal standing to bring the challenge to court. This underscores the need for provisions in Namibia’s Constitution and other laws to ensure that civil society organisations and agencies, and other individuals can have the right to bring such cases linked to the public interest before the courts without limitations.

Public interest litigation is an important strategy in the promoting and protection of human rights in any country. As such, unnecessary limitations on such litigation based on technicalities such and locus standi only work to limit the promotion and protection of human rights, including the rights of children to be protected from child marriages.

Beyond the characterisation of child marriage as a cultural practice, the region and regional governments need to look at it as a multidimensional problem. Some of the reasons behind the high number of child marriages in Southern Africa have nothing to do with culture. Poverty for example is a huge contributing factor. Often children are forced into marriage because families are unable to feed their children and see marriage as a way out for the child concerned and the rest of the family due to the bride prize that they receive. Poverty also forces children out of school, and once out of school, many girls see marriage as the only option available to them.

Government corruption and the failure by governments in the region to implement effective social welfare and social assistance programmes to assist children and indigent families with school fees, food, housing and other social and economic goods therefore fuel child marriages in the region. When governments and government officials, turn a blind eye, facilitate, participate in or fail to stem corruption, they must know that the impacts are far reaching, including condemning children, and in particular young girls to child marriages and a lifetime of poverty and suffering.

The Covid-19 pandemic has exacerbated the situation with many girls getting married since the onset of the pandemic. As statistics on the pandemic begin to trickle in, the impact on children and child marriage is staggering.

The World Economic Forum has reported that up to four million girls worldwide could be exposed to child marriages as a result of the pandemic. The prolonged absence of children from school and failure by governments to put in place effective online learning platforms to keep children occupied has led to an increase in child marriages. In addition, the Covid-19 lockdowns removed the safety nets and protections that the school environment provides to children.

When schools are in session, children can report abuse and harmful cultural practices to teachers and other school authorities who can then refer these to law enforcement agencies. Most teachers have the requisite training to identify trauma in children, or they can quickly identify absent children, including those who fall victim to child marriage and make the necessary interventions. Without these school-based protections, child marriages can proliferate and go undetected by law enforcement authorities.

As 2020 wobbles to an inglorious end, regional governments, civil society organisations, communities and families must continue to identify problems that expose children to child marriages and address these challenges for the benefit of the region’s children. Cultural practices, poverty, corruption and Covid-19 are just but few of the challenges that call everyone to action. Our judiciaries must continue to play their part in protecting children from the scourge and our legislatures must rise to the occasion and continue to pass laws that shield southern Africa’s children from this devastating practice.