In most jurisdictions, persons under the age of 18 cannot enter into a legally binding contract, nor are they allowed to vote. However, several African countries still allow children – including some girls as young as 14 – to marry an adult or another child with all its attendant obligations.
Countries such as Angola, Lesotho, eSwatini, South Africa, Tanzania and Zambia are among those in the sub region that allow for child marriages with parental or judicial consent. However the SADC Model Law on Eradicating Child Marriage, developed by the SADC Parliamentary Forum, requires countries to set the minimum age of marriage at 18, register all marriages and take effective action, including through legislation, to end child marriages.
Two recently released policy briefs on ending child marriages, by the United Nations Population Fund (UNFPA) East and Southern Africa Regional Office (ESARO) and Equality Now, found that while commendable action to strengthen legal protection had been taken by SADC countries, there was little or no real progress by other member states.
They also identified obstacles impeding progress, including inconsistencies in national laws and a general lack of effective implementation of these laws, which led to low prioritisation that impacted decisions to address child marriage.
The Model Law recognises child marriage as a violation of children’s rights. Divya Srinivasan, a human rights lawyer at Equality Now, called on SADC member states to prioritise legal reform to comply with international and regional human rights obligations and ensure that the minimum age of marriage is set at 18 across the board, without any exceptions.
“These laws also need to be effectively implemented using a multi-sectoral approach with adequate budgetary allocation,” she said.
“This means that the responsibility for addressing child marriage should not lie with the Gender Ministry or Childrens' Ministry alone. Rather, the stakeholders in a multi-sectoral approach should include a number of government departments and ministries including gender, child protection, health, education, justice, law enforcement and finance, all working together in a collaborative and harmonised manner to improve the implementation of laws and policies on child marriage. State actors also need to work with lawyers, civil society, survivors, and traditional and religious leaders,” Srinivasan explained.
She highlighted that human rights lawyers have a key role to play in ending child marriages, including by supporting survivors with free or low-cost legal representation, and advocating for better laws and the implementation of existing laws.
“Strategic litigation can also play an important role in this regard,” Srinivasan said. “For instance, just recently, the Ugandan Supreme Court issued a progressive judgement striking down contradictory provisions in personal and customary laws which allowed marriage below the age of 18, despite the Constitution prohibiting this. This was made possible as a passionate advocate, Michael Aboneka had filed a petition before the Court challenging these laws.”
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