Ambiguous child age gives girls away to early marriages

Tom Sangala January 21, 2017

279 5 minutes read

About 300,000 women in developing countries die every year during pregnancy or while giving birth, World Health Organisation statistics show.

This has made Malawi one of the countries south of the Sahara where maternal mortality is one of the highest, with experts attributing the situation among others to long distances to health facilities, lack of trained personnel and unavailability of proper equipment in hospitals.

It is against such background that it is today generally accepted that if these inadequacies were corrected, the numbers of women dying during pregnancy and child birth would be drastically reduced.

Twenty-three year old Lyness Mbale of Bingu Village in Traditional Authority Mwahenga in Rumphi had her first child at 17, at Mhuju Health Centre in the district.

She agrees that she was too young when she entered marriage at the age of 15.

Luckily all has gone on well in the two times she has delivered.

“I was too young when I delivered my first born,” she says.

Mbale is at Mhuju Health Centre once again, this time with her third pregnancy.

And 26-year-old Nellie Nyirenda who comes from the same area with Mbale says even at the age of 18 when she got married, she felt she was still not ready.

“It was not my intention to get married at such a young age. I was so young and was supposed to remain in school. My marriage was so circumstantial considering the fact that I literally had no one to fend for me and pay my school fees,” Nyirenda says.

For many women child birth can be a matter of life and death.

Every two minutes a woman dies of pregnancy-related complications. Ninety-nine percent of these deaths, World Health Organisation, says occur in developing countries like Malawi.

For Malawi, this is partly down to the scourge of child marriages.

Malawi is said to have one of the highest rates of child marriage in the world, with approximately one in two girls marrying before the age of 18.

A key challenge to eradicating child marriage includes entrenched attitudes that accept the practice.

Child marriage is also closely linked to poverty.

As often in rural areas, like Mhuju, girls are married off very young to improve a family’s financial status.

A June last year a United Nations Children Fund (Unicef) and Human Rights Watch report ranked Malawi eighth among 20 other countries in the world with a high number of children getting married at a tender age.

It indicates entrenched attitudes that accept the practice as well as poverty as key contributing factors, among others.

The two bodies behind the report cite deep rooted cultural practices that are still in practice in some parts of the country, as the main cause.

In practices like kupimbira which is still in practice for instance in some parts of the Northern region, a family gives away to marriage their daughter even below the age of 16 as repayment for a debt. The practice perpetrates child marriages.

On the other hand the conflicting legislation on marriage age makes children vulnerable to abuse.

Though efforts by civil society and Parliament yielded into the adoption of the Marriage, Divorce and Family Relations Bill, which resulted into the raising of the minimum age of marriage to 18, the country’s legislations still do not agree on how a child or marriage can be defined.

Because of the ambiguities, a child rights Nongovernmental Organisation (NGO) in Gambia has resolved to report the country to the African Committee of Experts on the Rights and Welfare of a Child (ACRWC) for violating article one of the committee.

The committee places an obligation on countries that appended their signatures to the African Charter on the Rights and Welfare of the Child to guarantee and protect children’s rights.

The NGO, Institute for Human Rights and Development in Africa, observes in its submission to the committee that Section 23 subsection five of the Malawi constitution excludes children aged between 16 and 18 years from the protection that is supposed to be accorded to them under the ACRWC.

This follows the fact that article two of the African Charter on the Rights and Welfare of the Child to which Malawi is signatory defines a child as a person below the age of 18.

Section 23 subsection five of the Malawi constitution contravenes article two of the ACRWC. This definition permeates the interpretation of other sections of the Malawian constitution such as Section 42 (2) (G), which provides for “treatment consistent with the special needs of children” in criminal procedure, without defining “children”.

“These ambiguities leave the door open for defining the child in contradiction to the ACRWC. The Malawian legislative framework on children’s right has a profoundly negative impact including on the administration of juvenile justice,” reads the submission to the committee which was done on October 29, 2014 but was heard by the committee in October this year.

It adds: “Taking the facts into consideration, according to the complainant, the Republic of Malawi is in violation of article one (obligation of State Parties), article two (definition of a child), and article three (non-discrimination) of the ACRWC.”

Sharon Bisika, Deputy Director for Presidential Initiative on Maternal Health and Safe Motherhood, argues that most girls enter marriage prematurely, apart from indulging in early sex.

She believes that maternal mortality ratios statistics can significantly reduce if the country revisited the marriage age.

“Anybody below the age of 21 is immature and decisions at this very stage are likewise immature. At 16 or 18, most of our children are mostly in college and if it were their child, those people advocating for the marriage age to be at 16 or 18, would have second thoughts.

“It is very unfair to come up with such a law when you know that my child will be in second or third year in college. You would want your child to complete college first,” Bisika said.

A 2013 Report for the Campaign on Accelerated Reduction of Maternal Mortality states that Malawi managed to reduce its maternal mortality ratios significantly from 675 per 100,000 live births to 460 per 100,000 live births through the interventions that were championed by the Presidential Initiative on Safe motherhood.

However, in 2014, about 574 deaths of women per 1000 live births were recorded.

Traditional Authority Mwahenga says consultations that were done at the time on the marriage age did not take into account chiefs’ proposals that suggested 25 as marriage age.

He says at 16, 18 or 21, a woman is still not ready for motherhood.

“As chiefs, we suggested that the marriage age be 25 because that is the only time when a woman is matured to bear a child and make mature decisions for his family,” Mwahenga says.

At the hearing in October 2016 in Banjul the Gambia where Solicitor General and Secretary for Justice Janet Banda led a Malawi team of technocrats from Malawi, one compelling resolution was made that many believe will put the matter to bed.

Malawi government agreed with the Gambian NGO to change the marriage age in the constitution to 18 by the year 2018 without a national referendum as required by the Constitution.

“The Respondent State shall build consensus on the necessity of amending section 23(6) of the Constitution without the need for voting in a referendum,” the IHRDA vs Malawi agreement reads.

During the International Human Rights day in December 2016 State Advocate Pacharo Kayira disclosed that the Ministry of Justice has developed an amendment bill to address the challenge.

“The constitution amendment bill is basically [aimed] at rectifying the same [marriage age]. Malawi has an obligation to raise the child age to 18 because an NGO from Gambia sued Malawi for violating the same.

“When the matter came for hearing it was resolved that it should be settled amicably and the agreement was that by 2018, we should amend the provisions and that explains the amendment bills that we have. In raising the age we will also get rid of child marriages,” Kayira said.

NGO-Gender Coordinating Network (NGO-GCN), a network of organisations working on gender equality, said the amendment bill in the only means that can possibly see an expeditious change in the child’s age.

“Experience has shown that impediments arose along the way when seeking change of the law. However, with the amendments, the process is shorter and still effective,” NGO-GCN chairperson Emma Kaliya said.

United Nations has since welcomed the decision that will see the child being recognised as someone aged below 18 years.

Country Representative Mia Seppo is on record as saying the move will curb child marriages and speaks volume of government’s commitment to comply with the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.