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Child marriage problem amid laws, conventions

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In Traditional Authority Ngabu’s area, it seems fashionable for girls to get married immediately after their first menses; their age is not an issue.

“Most parents are stubborn when they are told against marrying off the girl child. They say it is their child and they have the right to do anything with them,” says TA Ngabu.

A United Nations High Commission for Human Rights of April 2014 describes child marriage as a marriage in which one of the parties is a child.

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The Convention on the Rights of the Child (CRC) describes a child as every human being below 18 years old.

TA Ngabu reveals that child marriage is rampant in his area and chiefs do not seem to help because they are given gifts from parents or the bridegroom.

“Most of them are carried away and become dumb to advise parents not to marry off a child. They sometimes don’t mind the age so long as they have received the gift,” he reveals.

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Ngabu explains that parents first get ‘Chitomelo’ or ‘Luphatho’ (money given to parents as booking the bride in advance) which is given according to the financial status of the man.

“Later on, the parents receive the actual bride price and the man also gives a traditional leader of their area some money (‘Chaodi’) all this is done regardless of the girl’s age,” he says.

To the other hand, TA Ngabu says, girls are married off before they are 18 years old because they have fallen pregnant and parents feel the only way to get rid of the burden is for her to get married.

Executive Director of Eye of the Child, Maxwell Matewere says child marriage is high in Malawi because of poverty, high illiteracy rate (which is at 26 percent) and outdated laws that do not protect the interests of children.

“Lack of political will to develop new legislation, lack of capacity to enforce existing laws to protect children and absence of national identity system makes it difficult for people to register hence to obtain precise reliable statistics on births and marriages. These are some of the contributing factors to high child marriage in Malawi,” he explains.

Malawi is a party to core international treaties that protect women and girls human rights including the African Charter of Rights and Welfare of the Child (ACRWC) (which is a comprehensive regional legal instrument aimed at promoting the realisation of the rights of the child.

At the sub regional level, Malawi has also signed the Southern African Development Community (Sadc) Gender Protocol.

Malawi has adopted major legislative and policy reforms in the area of women’s human rights including a Gender Equality Act in 2013 that promotes gender equality in the areas of education and reproductive health.

The government also amended the Penal Code Act in 2011 to raise the age of sexual consent from 13 to 16 years.

Malawi’s laws also have important protections for girls and women that prohibit forced marriage, criminalise the abduction of girls under 16, and prohibit discrimination against women and girls.

Human Rights Watch report titled: ‘I never experienced happiness’ says Malawi government has failed to enforce existing legal protections against child marriage, and to develop and implement a comprehensive national child marriage plan.

“Although Malawi has adopted some important laws and policies to protect women and girl rights, existing laws provide only partial protection,” reads the report in part.

The Human Rights Watch report says government has failed to address shortcomings, inconsistencies, and gaps in existing laws that could help to prevent child and forced marriage and protect girl and women’s rights in marriage.

It notes that laws on marriage in Malawi do not explicitly provide for full and free consent to marriage.

For example, Malawi’s Constitution provides only that no one shall be forced into a marriage, implying but not specifically requiring consent.

The Child Care, Protection and Justice Act of 2010 has a similar provision.

Another challenge in preventing and punishing child marriage offences in Malawi concerns the recognition of customary law and customary practices that are discriminatory, harmful, or otherwise violate fundamental human rights, expounds the Human Rights Watch report.

UN Population Fund (UNFPA) says Malawi is ranked eighth of the 20 countries that are considered to have the highest rates of child marriage.

Plan Zambia’s 18+: Ending child marriages in Southern Africa initiative newsletter of August 2014 indicates that Malawi’s child marriage prevalence is at 51.8 percent as compared to Mozambique at 43.9 percent, Zimbabwe at 30.7 percent and 46.3 percent.

Chancellor College Lecturer in Gender and Law, Ngeyi Kanyongolo faults the country’s laws to have greatly contributed to child marriages since it allows an under 18 girl to get married.

“This is the case even though it is in contradiction with the penal code which says no to sex with an underage girl. We haven’t done enough as a country, we need to reform the law to make marriage age to be 18 and above,” she says.

Kanyongolo also says that most parents think that the girl child is a property that will bring them income and all sorts of goodies like meat, fish and therefore see nothing wrong in marrying them off.

“At times the girls are married off when they fall pregnant due to lack of Sexual Reproductive health information.

“Girls also engage in early sex because of sex education they get at initiation ceremonies. In the end get they are impregnated and are forced to marry,” she notes.

Social policy analyst, Roy Hauya says the country’s girls are prone to child marriage because of issues related to attitude of society towards the girl child.

“The girl child school dropout is very high in the country. Most girls drop out because of lots of work at home, they later become an economic burden and parents give them away for marriage,” he says.

Hauya advises parents to ensure that they invest in girls education and provide them with all they need within their means because marrying them off will only worsen their poverty other than eradicate it.

The UN April 2014 annual report of High Commissioner for Human Rights on Preventing and eliminating child, early and forced marriage says the current legislation in 147 countries contains exceptions permitting the marriage of children below the age of 18 even where legislation is in line with international standards.

It says the prohibition of child and forced marriage is difficult to implement owing to a number of the challenges including cultural attitudes supporting the practice.

“In many communities, marriage is often perceived as a way to ensure the economic substance of girls and women with no autonomous access to productive resources and living in situations of extreme poverty,” reads the report in part.

Principal Secretary in the Ministry of Gender, Disability, Children and Social Welfare, Mary Shawa says Malawi recognised that it is one of the 10 countries in the world with a high prevalence of child marriage, hence came up with Marriage, Divorce and Family Relations Bill.

“This is a comprehensive law that was developed in 2006 and has a strong protection from child marriage. The bill proposes that marriage age should be 18 which is internationally recognised,” she said.

Shawa added that the bill is likely to be tabled in the next sitting of Parliament since it already passed through other required stages.

Perhaps girls of TA Ngabu and other areas in Chikwawa may benefit from this bill.

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