The 2012 Marriage bill – window of opportunity for addressing child marriage

 Introduction

Marriage as an institution is the basic unit of the family and to a large extent shapes and defines how a child grows up and what they become in future. The family provides protection, nurturing and guarantees the basic rights of children. In effect, the importance of marriage in sustaining the human race cannot be underestimated. Marriage is an institution meant for adults and highly celebrated in all cultures around the world.

With this in mind, one would wonder why the State should take it upon itself to regulate and provide parameters within which this institution should be conducted. So when the Marriage Bill 2012 in Kenya was passed, I wondered what was in it for Child Rights organisations and why the sudden interest among the populace in the provision of the bill.

For most of us, we first heard about the bill through various media channels and what became the ‘hottest’ part of the bill was a provision on what is popularly known as ‘come-we-stay’ (a co-habiting arrangement between men and women). This generated a lot a debate among Kenyans of all walks of life.

Why the heated debate on the marriage Bill?

After my gym session on Saturday (10th November 2012), I decided to take a ‘matatu’ ride to town to have a sense of what people were talking about. I enjoyed the rides, both ways and it was interesting to hear what most people were talking about over the weekend – your guess is as good as mine (come-we-stay). Both men and women had very different views on this. The interesting bit of the discussion was that, none of those discussing the bill had actually seen or read it – their only source of information was the media – TV, radio and to a lesser extent, the newspapers. I was amazed at how powerful the media is in shaping the discourse of political and social discussions and opinions.

For those of you who read the Standard on Saturday (10th November edition), you might have seen on p7 that some leaders are up in arms to oppose the marriage bill on two provisions – ‘come-we-stay’ and the ‘bride price’ – they argued that the former provision will make men vulnerable (wondering why they think men will be vulnerable and never thought of the saying ‘what is good for the goose is good for the gander’). Their second worry was that making the payment of bride price optional is an affront to our culture. The worry I have is that this group is totally disregarding the interest of millions of girls and women and only looking at what a few men will lose.

What’s in the bill for girls, women and child rights organisations?

Child marriage and wife inheritance are two development challenges and human rights abuses that are prevalent in most African societies and Kenya is no exception. The adverse effect of the practice has attracted international attention. Former US President Bill Clinton's ‘Clinton Global Initiative’ announced in 2011 a partnership of organisations worldwide seeking to spotlight the dangers of marriage for girls under age 18 years. Among those introducing the project, titled 'Girls Not Brides: The Global Partnership to End Child Marriage,' were Nobel Peace Prize Laureate Archbishop Emeritus Desmond Tutu of South Africa and Mary Robinson, former president of Ireland.

In the developing world, one in every three girls is married before the age of 18, usually marking an end to their schooling and exposing them to higher risk of injury and death due to early sexual activity and childbirth,’ said the announcement. The practice is estimated to affect 10 million girls, and with it comes irreparable consequences. Some of the adverse effects of child marriage especially on girls include:

• High school dropout rate among girls
• High maternal mortality (especially during child birth) among minors
• Lack of opportunities for girls to grow as children once they are married
• Various forms of abuses against girls by their older husbands (including physical, emotional and psychological)
• Poor parental skills among the teenage mothers which in effect affects the development of their children
• The lack of skills and education results in a cycle of marginalisation and poverty

The above are just a few examples of the impact of child marriages on girls. The Kenyan marriage bill of 2012 becomes very relevant for child rights organisations and provides the platform and opportunity to continue their advocacy to end child marriages. The following provisions in the bill are relevant for the fight against child marriage:

1. Minimum age for marriage has been clearly defined and articulated in the bill

2. The bill does not recognise any marriage to a minor (U18) – all such marriages will be null and void. This provision is progressive in the sense that in some countries, the marriage law allows the older man/woman to marry the minor once they attain 18 years even if they were married when whilst they were a minor. The Kenyan bill does not recognise this

3. Any person who marries a minor shall be sentenced to a prison term of not more than 5 years (wish this was more harsh) and a fine of up to KSH1m or both

4. Any person who officiates and or witnesses child marriages will also be sentenced to a prison term or fined or both

5. Widow inheritance has been outlawed – one of the reasons for the widespread HIV infection in the 90s (especially in some Eastern and Southern African countries) was attributed to wife/widow inheritance

Some challenges

1. Birth registration is still low in communities where child marriages take place. The fact is, child marriage (U18) can only be contested in court if there is evidence that the girl/boy is a minor and the only evidence will be a birth certificate (which most children might not have)

2. The media is already far ahead in terms of information/misinformation on the provisions of the proposed bill – it is always better late than never – like minded organisations which are opposed to child marriage should partner with the Constitution Implementation Committee (CIC) to highlight the benefits of the bill for girls and women

3. The bill is silent on rehabilitation/counselling for children who will be saved from child marriages, can this be put on the agenda? Maybe yes

Everyone has a role to play in our personal capacities and as Child Rights Organisation/Government institutions and traditional/religious bodies to help address and eliminate child marriages. Change starts with you; help if you believe in (i) addressing marginalisation (both intended and unintended) and (ii) supporting children especially girls to live up to their full potential. We have the vehicle – the marriage bill and the people (YOU). Let us lobby the President to sign this bill into law and once that is done, we will have a duty to support the implementation