Ending child marriages: Not only a question of law

By Vibeke Wang

The new Marriage Act in Malawi has been hailed for raising the legally prescribed age of marriage to 18, yet the truth is that there is no absolute minimum age of marriage in Malawi and that legal inconsistencies threaten the enforcement of the law.

In April 2015, Malawi got a new marriage law when President Peter Mutharika assented to the Marriage, Divorce and Family Relations Act (Marriage Act). The passage of the Marriage Act was an important milestone in securing women and girls’ rights in a country where patriarchal norms are deeply entrenched, poverty is widespread and women and girls generally score low on development indicators and lag behind in many areas of life. The new law consolidates multiple marriage regimes and addresses some of the discriminatory provisions in previous laws governing marriage and family relations. The provision that has received the most domestic and international attention so far sets the age of marriage at 18 years and requires formal registration of all marriages, including customary marriages. This is critical since Malawi has one of the highest rates of child marriage in the world with one of two girls marrying before the age of 18 according to numbers from the United Nations Population Fund (UNFPA 2015). While the new law could play an important part in helping to prevent child marriages, there is a risk that conflicting national and constitutional laws may undermine such efforts.

International and domestic praise
The new law has rightly been recognized by domestic and international actors as a major achievement and as a potentially important instrument in fighting child marriage. The practice of child marriage is condemned by a number of international and regional treaties, conventions, resolutions and platforms, with the UN Convention on the Rights of the Child (CRC) and The Convention on the Elimination on All Forms of Discrimination against Women (CEDAW) being among the most important instruments. It negatively affects girls and women’s reproductive health, education and economic opportunities. Both the CRC and CEDAW recommend legislating a minimum age of marriage at 18.

The practice of child marriage typically entered the political agenda in many African countries after they committed to the Beijing Platform of Action in 1995. The platform calls upon states to enforce laws concerning the minimum age for marriage and raise it where necessary. Child marriage is commonly defined as a formal marriage or informal union before age 18. According to international and regional human rights instruments child marriage is a human rights (see e.g. The UN Resolution on Child, Early and Forced Marriage from 2014, available from http://bit.ly/1p1CgN1).

Over the years child marriage has gained increased prominence on the international agenda and has now reached an all-time high. In 2015 the United Nations Human Rights Council by consensus adopted the first-ever substantive resolution on child marriage and an explicit target under goal five in the new sustainable development agenda is to ‘Eliminate all harmful practices, such as child, early and forced marriage.’ (See Sustainable Development Goals).  A number of African countries have developed national initiatives, strategies and plans on how to end child marriage. In 2015, alone, countries such as Burkina Faso, Ghana, Mozambique, Uganda and Zambia have developed comprehensive strategies against child marriage. Some countries, including Malawi, have also undertaken legal reform to help end the practice.

In Malawi, the international framework has been actively used by domestic child rights and women’s activists when lobbying for raising the legal age of marriage.  International aid actors have also played an important role by supporting law reform. UN Women in Malawi has for instance taken on a coordinating role and facilitated numerous dialogues and consultations with parliamentarians, activists and government actors.

Not an easy win
The process leading up to the Marriage Act has however been marked by twist and turns. The Malawi Law Commission produced a report on how to harmonize marriage laws already in 2006. Since then compromises have been made along the way. Age of marriage and polygamy proved to be among the most sensitive and difficult issues to deal with, and especially age of marriage has received a lot of media attention.

The issue of age of marriage was on the table in 2009 in relation to the so-called ‘Chidyamakanda bill’ (Enjoy the Children bill) which involved amending Clause 9 in the Constitution which would have raised the age of marriage from 15 to 16. While the bill was passed by Parliament it was never assented to by the then President Bingu wa Mutharika. Allegedly, some of the explanation was strong pressure from women and child rights’ activists who strongly opposed the amendment on the ground that the age of marriage should be in compliance with international human rights standards. Indeed, the cross-party women’s caucus in Parliament also voiced its concern. The caucus chair, Cecilia Chazama recalls that “I remember us women MPs arguing that the age was a little bit on the lower side” (Interview Cecilia Chazama 2014).

The Marriage bill was discussed by cabinet in 2010, but was referred back to the Law Commission, due to disquiet among parliamentarians. The bill was, despite pressure from advocates, not reintroduced until 2015. While the Law Commission recommended banning polygamy this provision was pulled out prior to tabling the bill in Parliament.  According to key informant interviews the provision was simply too controversial and would have kept the bill from being enacted. In the end, the bill was passed with a clear majority in Parliament, but there was last minute uncertainty among key advocates as to whether the bill was actually going to be tabled and passed.

Good news
Efforts to end child marriage are already paying off in Malawi, and in fact started prior to the enactment of the law. News stories about traditional leaders taking an active stance against the practice of child marriage are many. Chiefs have passed bylaws in their areas prohibiting child marriage and implemented penalties (Nyasa Times 2013, available from http://bit.ly/1njmOdB). Indeed, a female senior chief in Dedza District recently was reported to annul 330 customary child marriages and encouraging child brides to return to school (UN Women 2015, available from http://bit.ly/1ZNGOnZ ).

A Task Force on Ending Child Marriage has been established and will report directly to the president. Establishing marriage courts and improving marriage registration are key to enforcing the new act. Local child rights and women’s activists, together with international NGOs and UN agencies, have actively worked to raise awareness of child marriage. Engaging traditional leaders have been considered key at the community level.  Churches have also actively helped in the effort. The minister of Gender, Children, Disability and Social Welfare Patricia Kaliati in an interview to one of the leading newspapers in Malawi, conveys that the number of annulled child marriages in 2015 amount to at least 600 000 (The Nation 2016, available from http://bit.ly/1OSViOV). This is indicative of a will by actors at multiple levels to use the new law to address child marriage in practice. Yet hard work remains, also in terms of law reform.

Not-so-good news  
On the downside, however, the new age of marriage set in the Marriage Act is not absolute since it is subject to the Constitution.  Section 22 (6) of the Constitution allows for marriage between the ages of 15 to 18 with parental consent (or consent by guardian). Even marriage below the age of 15 is not explicitly prohibited, although such marriage should be “actively discouraged”. There are also inconsistencies in the law that further complicates matters.  The age of a child is 16 according to the Constitution, and the Penal Code also sets the age of sexual consent at 16. This means that the spouse of a 15 year old child (who obtained consent upon marrying) commits a crime if engaging in sexual intercourse with him/her. The above conflicts point to serious legislative problems and the need for constitutional amendments. Advocacy efforts to this end have already started. Plan Malawi in partnership with youth groups have presented a petition to the Minister of Justice and are also collecting signatures in support for a constitutional amendment (The Times 2016, available from http://bit.ly/1QtOXKK).

The new Marriage Act constitutes an important step towards preventing child marriage in Malawi but further legal change is clearly called for in order to ensure effective enforcement of the law in the future. Establishing 18 as a definite minimum age of marriage in the Constitution should provide for a good start.