Preventing and Eliminating Child, Early and Forced Marriage: challenges, achievements, best practices & implementation gaps
Submission to the Office of the High Commissioner for Human Rights
December 14, 2013
FOREWARD
ECPAT International appreciates the opportunity to provide this submission to the Office of the High Commissioner for Human Rights (OHCHR) to inform its upcoming report to the Human Rights Council on preventing and eliminating child, early and forced marriage, with a particular focus on challenges, achievements, best practices and implementation gaps.
ECPAT International is a global network of organisations working together for the elimination of commercial sexual exploitation of children (CSEC) which includes child prostitution, child pornography and the trafficking of children for sexual purposes. Today, ECPAT has 82 member groups in 75 countries which seek to ensure that children everywhere enjoy their fundamental rights free and secure from all forms of commercial sexual exploitation.
ECPAT International considers the marriage of children and adolescents under the age of 18 to be a form of commercial sexual exploitation when the child is used for sexual purposes in exchange for goods or payment in cash or in-kind. Normally, in such cases, parents or a family member marry off a child in order to gain benefit or to support the household, as with a dowry system. Child marriage also intersects with the concept of child trafficking when children are recruited, harboured or transported, transferred or received with the intent to exploit the child in slavery-like conditions, such as servile marriage or domestic and sexual slavery.
This report seeks to provide information on child marriage in four regions: Africa, South & Southeast Asia, the Middle East and Latin America. These regions were chosen because of their high rates of child marriage; however, it should be emphasized that the practice of child marriage takes place in all regions of the world, in developed and developing countries, in urban and rural areas, within many different religions, ethnicities and cultures. It is also important to realise that although ECPAT International considers certain kinds of child marriage to be CSEC, most of the data collected in this report refers to child marriage generally, and does not only include those cases of child marriage that are a form of CSEC. Nonetheless, throughout the report, explicit examples of child marriage as a form of CSEC or instances where child marriage may make a child more vulnerable to commercial sexual exploitation are highlighted.
INTRODUCTION
Child marriage remains a growing threat to the basic human rights and protection of children set out by the United Nations in the Convention on the Rights of the Child (CRC) and hinders the development of many countries. The CRC does not specifically mention child marriage, but it does state that all appropriate measures should be taken to “abolish traditional practices prejudicial to the health of children”[1] and references other children’s rights that are connected to child marriage, such as the right to freedom of expression and the right to protection from all forms of abuse. The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) prohibits child marriage[2] and the Universal Declaration of Human Rights (UDHR) recognises the right to free and full consent to marriage[3]. According to the CRC, a child is anyone below the age of 18 unless under the law applicable to the child, majority is attained earlier[4].
According to the United Nations Population Fund (UNFPA) in 2012, one of every nine girls in the developing world (excluding China) was married before age 15[5]. In the case of child or early marriage, at times parents consent on behalf of the children as they are considered to be too young to make the decision for themselves. Both boys and girls are involved in child marriage; however, girls more often face adverse effects on their mental, physical and emotional growth[6]. In some parts of the world like South Asia and West Africa, there are financial incentives for a girl to be married young such as the traditional dowry system, which encourages families to marry their daughters at a young age. In other cases, child marriage can lead to the commercial sexual exploitation of children (CSEC), like in parts of the Middle East where girls are coerced into marriage, later used as a guise to enter a country legally, and then trafficked into prostitution.
The issue of child marriage is widespread especially in areas where poverty is rampant and families lack access to alternate opportunities such as income-generating and educational programmes. In Uganda for example, girls can be seen as an asset from which families can gain property and livestock from bridewealth exchanges[7]. Other factors that lead to the ongoing practice of child marriage include ingrained gender bias, with a preference for sons; inadequate laws; fear of HIV infection (which has encouraged men in many countries to seek younger partners) and observance of traditional/cultural/religious practices such as payment of a bride price. Early marriage can be a strategy for survival for some families whether it is relieving them of a burden or receiving a form of payment to support them. In some cases of civil conflict, early marriage is a form of protection for the child from kidnapping and for the family in exchange for protection.
In all of these situations, there is a mutually beneficial transaction that results in girls becoming victims of commercial sexual exploitation or highly vulnerable to commercial sexual exploitation. The child becomes a victim of CSEC when he/she is used for sexual purposes in exchange for goods or payment in cash or in-kind. Children become highly vulnerable to commercial sexual exploitation for many reasons. In many cases children are exposed to violence and maltreatment by their adult spouses or their spouse’s families. Furthermore, child marriage is often linked to wife abandonment, plunging young girls into extreme poverty and increasing the risk that they will be forced to enter the commercial sex trade in order to survive.
For example, there is evidence of this link between child marriage and future involvement in commercial sex in some African countries. In Ethiopia, research has established that the majority of child prostitution victims in Addis Ababa are married before the age of 15 years of age. In Mauritania, some women and girls who enter into forced marriages, facilitated by brokers and travel agencies in Mauritania, are subsequently exploited as sex slaves overseas. In Niger, a small number of girls in forced marriages may be prostituted by their husbands, and a larger number are exploited in the sex trade after fleeing their nominal marriages[8]. In South Africa, the tradition of Ukuthwala leaves girls vulnerable to forced labour and prostitution[9]. Further evidence of this link comes from research conducted by ECPAT Uganda where it was discovered that 90% of people interviewed considered early child marriage and child prostitution the main forms of commercial sexual exploitation of children in the country[10].
Over the past few decades, child marriage has been recognized as a violation of children’s rights internationally and more government, NGO and civil society organisations continue to work toward ending the practice by focusing exclusively on child marriage or through improving measures such as health, welfare and empowerment of youth. The highest rates of child marriage are found in West Africa, followed by South Asia, North Africa/Middle East and Latin America[11]. Many of the interventions that focus exclusively on child marriage work directly with communities by providing skills and education while others work with community members to create change in social norms and behaviour that continue to perpetuate child marriage. Projects that work on policy and legal frameworks address other aspects that could reduce child marriage such as enforcing birth and marriage registration or raising the minimum age of marriage.
This report outlines child marriage both as a form of commercial sexual exploitation and as a vulnerability factor that can lead to CSEC based on four regions: Africa, South Asia and Southeast Asia, the Middle East and Latin America. Each region highlights how states have implemented laws and practices under international human rights treaties and conventions, surveys, assessments and studies on the impact of child marriage on the human rights of women and girls. Furthermore, it also addresses steps taken to end or delay child marriage at a national and sub-national level and positive experiences, as well as challenges faced. Lastly, based on trends seen throughout the world, the report outlines some recommendations to prevent child marriage.
HARMONISATION OF NATIONAL AND INTERNATIONAL LAW
There are various international human rights conventions in place that address child, early and forced marriage such as the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. Many States have signed and ratified these international conventions; however, some have not implemented their obligations under international human rights conventions and treaties. Current trends in the following regions show that customary, civil, religious and discriminatory laws are barriers to harmonising international and national laws; some supplant national legislation and others provide courts with the power to approve marriage under the age of 18. Some States also mandate birth and marriage registration; however, access to registration is a challenge for many people. Finally, in approaching child marriage from a holistic point of view, it is vital to address customary practices that perpetuate child marriage and are a form of CSEC such as temporary marriage or extreme forms of the dowry system. One of the biggest barriers to ending child marriage has been the failure to outlaw such practices, as they are ingrained and remain an essential part of certain communities.
Africa
There are several regional conventions specific to Africa and child marriage such as the African Charter on the Rights and Welfare of the Child (ACRWC) and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. A few African countries have made changes based on early marriage provisions in international and regional treaties such as in Madagascar, where the government increased the minimum age of marriage to 18 in 2007[12]. Likewise in Eritrea, the Civil and Penal Codes have been revised to raise the minimum age of marriage to 18 for both boys and girls, and to add the consent of the spouses as a criteria for the validity of the marriage[13].
Nevertheless, the implementation of these international and regional conventions throughout Africa has been rather piecemeal. Many African countries have signed and ratified most of these conventions; however, implementation of the obligations these conventions set is limited at best. So far, 32 African countries have set the minimum age for marriage at 18 years or older. However, despite legislation setting the minimum age for marriage, child, early and forced marriage continues to be prevalent throughout African countries. In fact, 14 out of 20 countries with the highest rates of child marriage are African countries.
There are several common factors that have affected African countries’ success in implementing their international legal obligations. Firstly, many African countries provide exceptions to the minimum age of marriage, allowing younger children to get married. These exceptions include those granted by ministers and judges as in Ethiopia, those granted by civil courts as in Burkina Faso, those granted by parents’ permission as in Mozambique,[14] and those granted if the perpetrator had “reasonable grounds” to believe the girl was old enough to legally marry, as in Botswana[15].
Secondly, many African countries have plural legal systems where civil, religious, and customary laws overlap and contradict each other. For example, in Eritrea, the minimum age for marriage as set by the Civil Code is 18 years old; however, under the Logo Chwa Code of Customary Law, the minimum age for marriage is set at 15 years of age[16]. In Tanzania, Muslim and Hindu girls may legally marry at 12 years of age, so long as the marriage is not consummated until the girl reaches 15 years of age[17]. Similarly, in Swaziland, if a marriage is conducted in a traditional ceremony, the new Child Protection and Welfare Act (2012) which sets the minimum age of marriage at 18 years of age, will not apply[18]. In Kenya, a marriage bill introduced to parliament in 2013 states that dowry payments should only be a “token amount” where such payments are necessary to prove a marriage under customary law[19]. Further compounding the problem in Swaziland (and many other African countries) is the fact that customary law is rarely written down and is interpreted by traditional leaders with no legal background. Several African countries also have set discriminatory minimum ages for marriage, meaning the minimum age is different for boys and girls. In Sudan, Muslim boys can marry as young as 10 years old and girls can marry as soon as they reach puberty. Furthermore, the age for non-Muslim Sudanese is set slightly higher at 13 years old for girls and 15 years old for boys[20]. There are also situations where domestic laws conflict with each other such as in Tanzania where the age of sexual consent under the Sexual Offences Special Provision Act is set at 18 years of age, but under the Law of Marriage Act, the minimum age is set at 15 years of age[21].
South & Southeast Asia
Various South and Southeast Asian countries have made attempts to eliminate the practice of child marriage through national and international laws. Currently, all the South Asian countries have signed and ratified international conventions regarding child marriage and developed their own regional conventions. The South Asian Association for Regional Cooperation (SAARC) drafted and signed the Convention on Preventing and Combating Trafficking in Women and Children in Prostitution and the Convention on Promotion of Child Welfare which state that a child is anyone who is 18 years of age and under and that forced marriage can be perceived as a form of trafficking[22]. SAARC’s Apex body, South Asia Initiative to End Violence against Children (SAIEVAC), has also identified early marriage as a harmful tradition and organized a regional consultation with the representatives of the SAARC Governments, civil society organizations and the children themselves on September 2013 in Thimpu, Bhutan to formulate a regional action-plan to address this issue in the region. It also aims to work with NGOs and CSOs to end the practice by encouraging all SAARC countries to implement article 4(3)(d) of the SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia[23].
Some of the South Asian countries do not meet the minimum requirements of international or national standards while others have national legislation that surpass international standards. For example, Bhutan, Bangladesh and India implemented laws that set the minimum age for marriage at 18 for boys and girls while Nepal legislation states that without parental consent the minimum age of marriage is 20 years old. Exceptions in marriage laws are evident in the Maldives and Sri Lanka, where the national age of marriage is 18 for boys and girls, but Sharia law permits marriage for girls once they reach puberty which is undefined. Discriminatory laws exist mostly in Afghanistan and Pakistan where the minimum age for girls and boys to marry is 16 and 18 respectively[24].
Child marriage is individually addressed in all the South Asian country legislations and some countries have a penalty for those involved or have laws that ban traditions leading to child marriage and CSEC. For example, in Pakistan, swara – where girls are given to compensate debts and bondage – is outlawed along with the dowry system in India and Bangladesh[25]. India prohibited the payment of a dowry for marriage in 1961; however, the practice is still ongoing. For example, reports in 2013 contend that one Indian woman dies every hour because of dowry-related crimes[26]. Similar bans have taken place in Bangladesh (1980) and Nepal (2009), but the dowry systems continue. In countries like Afghanistan and Pakistan – where over 95% of all marriages involve the transfer of a dowry from the bride’s family to the groom’s family[27] – a dowry is almost always expected. Many South Asian countries also have laws that require birth and marriage registration; however, access to registration and the tedious process involved prevent many people from doing so. Sri Lanka has presented effective policies to reduce child marriage by integrating it into their national health and education policies. For example, primary school is free for children so girls are encouraged to go to school rather than being married off at an early age[28]. Despite having one of the largest numbers of child brides in the world, India is the only country in South Asia to have a National Plan of Action for Children that addresses child marriage[29].