Child marriage: Balancing culture, law and human rights

Introduction

What is child marriage in Ghana? What has been the prevalent cause of people who marry before the age of eighteen (18)? What best practices under international law ensure maximum protection of children in marriages, yet minimise cultural and social factors that push children into early marriage?

Child marriage is a pressing issue in many communities and is firmly established in our social, economic and cultural values of Ghanaian society. Child marriage also threatens the lives, well-being and the future of children around the world, most especially, the girl child.

In this article, the author discusses the various factors responsible for child marriage and provides workable recommendations to mitigate and minimise the phenomenon and assure maximum protection of the girl child by balancing the cultural and human rights issues at stake.

What is Child Marriage in Ghana?

According to the authors of What is Child Marriage and Why Does it Happen?, Child marriage refers to all marriages or unions in which one or both spouses are under the age of eighteen (18)[i]. According to the Children’s Act 1998, only persons above eighteen (18) years can marry, and marriage between or with a person who is below eighteen (18) is prohibited and criminalised.

Although child marriage is a cultural factor in most states, it is also a human rights violation issue which disproportionately impacts girls across the world. According to UNICEF DATA, marriage before the age of eighteen(18)is a fundamental violation of human rights, and many factors interact to place a child at risk of marriage.

These factors include poverty, the perception that marriage will protect the girl child, be an avenue for family honour, as well as social norms and customary or religious laws that condone the practice.

For as long as child marriage continues to exist, so will poverty and instability, violence against women and girls. For Ghana to achieve a reform on this pressing issue, we need to respect cultural values and, at the same time, human rights and the rule of law.

What are some of the causes of child marriage?

Child marriage is a complex issue which is caused by various factors which need to be studied to reform child marriage. The following are some of the notable causes of child marriage in Ghana:

1. Gender Inequality

Girls are culturally unable to choose who they want to marry, when they want to marry and why they want to marry.  This is not so for the male gender under several dominant Ghanaian cultures. Until recently, it was a well-held view of the law that wives were properties of their husbands.

In some African communities, there is a discriminatory custom tied to marriage, such as dowry or bride price (where a husband’s family pays the wife’s family) reinforces a view of the wife as ‘’bought’’ rather than as an equal partner. These communities enforce the belief that girls are their husbands’ property and their only role is to be in the kitchen while boys go to school. Societies like this think marriage is the only option for a girl child.

2. Poverty or Lack of Financial Resources for Survival

Many families are faced with poverty, see early child marriage as a relief from financial burden on the family and explore marriage as an avenue to gain financial security for the family. These families give out their daughters in exchange for dowries, among others. This, in some situations, is seen as a matter of survival for the child and the family.

3. Tradition and Culture

Traditional norms and cultural values play a vital role in preserving child marriage in many communities. In most rural areas, this tradition is regarded as a tool to preserve social status. Children undergo ceremonies to mark their passage into adulthood, and during these ceremonies, they are advised to marry early to prevent premarital sex. In so doing, they place high value on the girls’ virginity and fertility and start grooming them for marriage.

4. Lack of Education

Limited access to education increases the rate of child marriage, especially for girls. Illiterate parents may not understand the great importance of educating girls and will tend to choose early marriage for their daughters since they see them as a burden to the family.

5. Teenage Pregnancy

In most families, when their daughter gets pregnant in their teens, they quickly marry them off to the father of the child to preserve family honour or their religious beliefs.

What Legal Frameworks Are Available for the Protection of the Rights of the Child in Marriage or before Marriage?

Both local and international rules have, over the years, formulated foundational principles of law for the protection of the rights of children, including children in marriages. There have been several efforts by nations and international organisations to ensure that there is a robust legal framework for the protection of children against early marriage.

I have discussed below some of the relevant legal frameworks for the protection of the child against child marriage under international law and local legislation in Ghana.

• UN Convention on the Rights of the Child

Article 1 of the UN Convention states that a child means every human being below the age of eighteen years unless, under the laws applicable to the child, majority is attained earlier. Article 3 also states that in all actions concerning children, the best interest of the child shall be the primary consideration.

It also states that the child must be protected from any harmful practices. This means that governments, parents, schools and all other institutions must prioritise the best interest of the child and not what is best for the adults, culture or the community. If a cultural or religious practice harms a child, the child’s protection overrides the practice.

• African charter on the rights and welfare of the child

The African Charter in article 21 makes provision for states and their institutions to adopt measures …” to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child….”. This requirement extends to measures for the protection against bad customs and practices, the prohibition of child marriage and betrothal of girls and boys.

This Charter also imposed an age limit of 18 as the age of marriage in the member states. This means, every state is to ensure that legal marriage only exists within this age limit.

• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979

Article 16 of CEDAW, 1979 states that states must take all appropriate measures to eliminate discrimination against women in marriage and in family-related matters. Specifically, women and men should have equal rights to enter into marriage freely and with full consent. Additionally, child marriage and betrothal are prohibited, and states must legislate a minimum marriage age and ensure official registration of all marriages.

• The 1992 Constitution

Under Article 28, the Constitution provides that parliament must make laws to ensure that every child receives care, support and protection necessary for healthy development. Children are entitled to maintenance from their parents, protection from hazards, harmful work and cruel treatment and must not be denied medical care, education or other benefits due them.

The family is recognised as vital for children’s welfare, and a child is defined as anyone under eighteen (18) years of age. This law sets a legal boundary: anyone below eighteen cannot legally marry.

(5) Children Act 1998

Section 1 and 2 of this Act defines a child as a person below eighteen years and state that the best interest of the child shall be paramount in any matter concerning a child, respectively.

The Act prohibits forcing a child into betrothal, dowry transactions or marriage and sets the minimum age at eighteen. It protects children from cruel, degrading or harmful cultural practices and unreasonable correction. Anyone who violates these provisions commits an offence and may face a fine, imprisonment or both. Also, children have the right to refuse to marry or to be given into marriage.

(6) Criminal and Other Offences Act 1960

Section 101 of this Act states that a person who naturally or unnaturally knows a child under sixteen years with or without the consent of the child commits a criminal offence (defilement) and is liable on conviction to a term of imprisonment of not less than seven years and not more than twenty-five.

Also, per section 109 of this Act, a person who, by duress, causes another person to marry against the other person’s will, commits a misdemeanour. This law criminalises child marriage and provides ultimate protection for the child against persons who seek to violate or abuse her sexually.

Is there a Gap between the Law and Enforcement?

Despite all these legal principles protecting children from child marriage, implementing them continues to be a major difficulty. For instance, in Ghana, the Children’s Act of 1998 states that “no person shall force a child to be brothed, to be subject of a dowry transaction or to be married” However, it is recorded by the Ghana Multiple Indicator Cluster Survey 2017/2018 that about 19% of girls marry before their eighteenth birthday in the rural areas.

Even though laws exist, they are often ignored or weakly enforced because of entrenched social norms.

How best Can Society Create a balance among Culture, Law and Human Rights of Children?

• Bad Cultural practices that do not conform to the law must be deliberately abolished by legislation.

A report from the UNICEF highlights that practices like child marriage and FGM are internationally recognised human rights violations and harmful cultural practices that deprive children, especially girls, of their basic rights and future opportunities.

Also, according to the OUP Academic Research, an authoritative legal analysis article argues that the obligation under Article 24(3) of the UNCRC is not optional: states must abolish all harmful traditional practices. Relying solely on voluntary change may leave many children unprotected, so legislation ensures a state-level protection of the children’s rights regardless of local pressures or customs.

• Good cultural practices which do not discourage child marriage must be promoted with emphasis on how they promote the protection of the rights of children.

A recent empirical study, according to the ScienceDirect, found in Ghana that the traditional cultural value known as the “abiriwatia” which emphasises authority, collective childcare and extended family or kinship responsibility, is associated with a lower incidence of child neglect.

The authors argue that practices under “abiriwatia”, such as communal support for childcare, shared responsibilities, and community norms that safeguard children, can strengthen overall child protection more than contexts where childcare is left only to the nuclear family. This shows that not all cultural traditions are harmful; some can be used as protective frameworks for children’s welfare, development and rights.

• In instances of conflict between the law, culture and human rights of the child, the human rights of the child as prescribed by the law should be preferred

According to a scholarly analysis by the University of Pretoria, cultural practices in Africa may be deeply embedded, substantive rights guaranteed under the convention ‘’supersede cultural considerations or practices which negate the essence of the rights.

Further, Article 21 of the African Charter states that states parties are obliged to take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child. These treaty obligations show that once a state ratifies such instruments, laws protecting children’s rights cannot be optional.

• Ensuring Accountability and Full Implementation of Existing Laws.

Perpetrators of violations of child rights or child abuse must face legal consequences. State institutions, particularly the social welfare department, should be well-enforced to safeguard children.

• Building Awareness through Education

Education campaigns can help communities to understand the effects of harmful cultural practices. Schools should teach children about their rights in age-appropriate ways and show them where to report if their rights are violated. Parents and guardians should also receive counselling on positive parenting and child development, reducing reliance on the outdated customs.

Conclusion

Paul Fandango wrote in his arguments on the topic of balancing culture and human rights that “we cannot have an absolute moral imperative to respect other countries. If we did, in principle, we’d have to accept human sacrifice, pedophilia, legally sanctioned rape, genocide and all sorts of moral abominations.

We’d even have to respect disrespect for other cultures, which would be a contradiction”. Human rights are logically and empirically necessary for voluntary cooperation, yet voluntary cooperation is not possible in all cultures.

However, the above recommendations can help reform the unfortunate incidence of child marriage and reduce it greatly if they are taken into proper consideration. Cultural practices and human rights must protect girls while they are still at risk, involve men and boys, break cultural misconceptions, and prevent the spread of bad practices of child marriage. Puberty does not equal adulthood.

About the Author: Kirsten Tabang is a third-year law student at the Kwame Nkrumah University of Science and Technology, Faculty of Law. The author is currently a legal intern with the Law Office of Elisa Kumadey. Kirsten has an interest in matters regarding the protection of the rights of children and women, international human rights laws, and other relevant areas of law.