By: Francis Turay
Child marriage has been a topic for ages, as many have seen this to be a deterrent to a child’s full attainment of childhood and her future. The big question one may choose to ask is, are these marriages conducted and registered within the ambit of the law, or are they are just religious practices, as many people have chosen to believe that they are?
Many Child Right Groups and Activists have been fighting against this course (child marriage), but how have they been doing so, or what do they need to do to win this fight? Many have raised concerns towards these said marriages as they believe it goes contrary to that of section 19 of the Sexual Offences Act, as amended in 2019, which talks about the sexual penetration of a child. A lot of groups have been calling on the government and the First Lady, who has been on a mission to clamp down rape and sexual penetration through her flagship project “Hands of Our Girls.”
In this opening, let us take a drive along, as we seek to establish the facts of illegality or legality of these marriages as we mentioned earlier.
Sierra Leone is a country that is governed by law and we have laid down rules which guide our acts for peace, security, and social justice to prevail. According to section 170 of the 1991 constitution of Sierra Leone, Act No 6, which establishes the laws of Sierra Leone, subsection three (3) reads
“For the purposes of this section, the expression “customary law” means the rules of law which by custom are applicable to particular communities in Sierra Leone.” One may beg to ask, what is customary law after going through the aforementioned provisions.
- A local custom is a usage of a rule which has gathered the force of law and is binding within a defined area upon the persons affected thereby.
- In Sierra Leone customary law is mainly practiced in the Provinces amongst the people of the various tribes living in these provinces and it is binding upon those people within that defined area.
However, the following must be considered for these custom usages of rules to gather the force of law.
- Custom must have existed from time memorial (since 1189)
- Custom must have been in existence without interruption
- It must have been enjoyed without force, stealth, or permission
- It must have been observed because people felt it was obligatory
- It must be capable of being precisely defined
- It must be reasonable throughout
- It must be consistent with other local customs
Having it enacted in 2007, as amended in 2009, The Registration of Customary Marriage and Divorce Act establishes the legality of customary marriage of minors (children). Part II of the act which talks about the Validation of Customary Marriage, makes a provision to consider when a customary marriage is valid or not. Pursuant to section 2(2) it reads;
“Where, either of the prospective spouses, not being a widow or widower, is less than eighteen years, it shall be necessary for the parents to give consent to the marriage and if the parents are dead or unable for any reason to give such consent, then the consent may be given by the guardians of the prospective spouse or spouses to the marriage, as the case may be.”
The above provision has clearly explained to us when these marriages are considered valid, through which, the onus of consent will be placed on the shoulders of the parents or the guardians of the prospective spouse or spouses as the case may be.
However, the state also plays an integral role in validating the marriages of these minors, or should we say, go contrary to what they have enacted in section 19 of the Sexual Offences Act, as the court and local government officials are bestowed with the power to validate the marriages of minors? In establishing these, let us take a look at what section 2(3) of The Registration of Customary Marriage Act says, as it reads below.
“If the consent of the parents or guardians cannot be obtained or is unreasonably withheld, a Magistrate or Local Government Chief Administrator of the locality in which the marriage is to take place may give his consent.”
Going through this piece one will come to understand that, we as a nation do have problems with our laws, as there are loopholes and enactment that goes contrary to what another may be fighting for. As long as this activity continues to exist, it will continue to utter the importance and limit the power of enforceability that is bestowed on the Sexual Offences Act as it was enacted to punish perpetrators of sexual penetration.
The question for the closing will be, how should these several campaigns or campaigners mobilize to end child marriage?
LLB 1 Student, University of Makeni