The latest data from Human Rights Watch shows that more than 4 million African girls are married, Africa, each year with some as young as seven. While early and forced marriage appears most prevalent in countries of Africa,several recent cases have shown western countries are not immune to the practise. If the global trend continues, Human Rights Watch estimates that 150 million children will be married in the next five years. There is no individual African countries research on the prevalence of forced marriage but the issue was brought to the fore following several recent court cases in East and Southern African countries.A 2015 case involving a 12 year-old Maasai girl in Kenya began when her school alerted the law enforcement authority child protection service that she was not attending school. The school suggested the girl’s absence may be due to her parents preparing her for marriage to a fiancee they had chosen for her, a 62 year-old Maasai elder.Consequently, the non governmental organisations in the country that are working hard to fight early marriages, initiated proceedings in the court that eventually resulted in the court ordering the girl not be removed from home before she completes her tertiary education. The court also ordered that her documents for school be surrendered, that her parents be restrained from applying for another husband on her behalf and that her name be placed on the Kenya Police watch list until her 21st birthday.
An Australian friend working with a non governmental organisation in Kenya told me recently of a prominent case that came before her and colleagues and took it to court. The girl from Samburu community also in Kenya had just finished year 4 of secondary education and had a boyfriend who lived in Kenyan capital Nairobi.Her parents told her she was to travel to their home county of Samburu to marry him there. But they deceived her and had another man in mind, a 71 year old. The court heard that on arrival, the Samburu girl was introduced to the man her parents had secretly chosen to be her husband. Her father told her that if she did not acquiesce to the marriage, he would have her boyfriend’s mother kidnapped and raped. Sadly, she consented and the marriage took place under Samburu community cultural wedding laws. But when she returned to Nairobi, she consulted a lawyer and applied to the court for an annulment. The court accepted that she believed that her father would carry out his threat and said that at the time of the marriage ceremony, the girl’s consent was not real because it had been obtained through duress. The court declared that the marriage was not a valid marriage and that the marriage was void.The latter case illustrates how coercion can overbear full and free consent to a marriage. When deciding her case, the judge in Kenya’s high court concluded that if a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way.
Acknowledging emerging concerns about forced marriage in Kenya, the Kenyan government has called for submissions from community groups to inform potential reform few years ago. Thanks to the efforts of community based organisations, legislation was passed to specifically outlaw the practice and is now a crime in Kenya but it is still widely practiced among the pastoral communities. The amendment created new offences relating to slavery and slave-like practices including forced marriage. Under the Act, a marriage is a forced marriage if, because of the use of coercion, threat or deception, one party to the marriage entered into the marriage without freely and fully consenting.Since the new law came into effect, there has been considerable community interest in the area of forced marriage and engagement in outreach and writing multilingual materials to raise awareness of the law. The law is one part of a holistic and effective social response. But it’s also essential that comprehensive support services for those in forced marriage are available and that resources are put into community-based services and education to explain the law.I hold the view that civil protection orders in African countries should be available regardless of the age of the applicant so that even young girls can protect themselves from forced marriages.This would be the next step to ensure those in forced marriage have all the support they need and can choose the extent that they wish to engage in legal processes.