Women and girls are denied the same legal rights as men and boys in numerous African countries, including when it comes to marriage. This is putting millions at heightened risk of human rights violations, including child marriage, marital rape, forced pregnancy, and domestic violence. To highlight what changes governments in the region and elsewhere need to make to end sex discrimination in marital status laws, international human rights organization Equality Now is releasing on International Day of the Girl Child a new policy brief.
Sex-discriminatory laws regarding marital status govern some of the most intimate aspects of our lives – marriage, divorce, custody, and guardianship. They have proved to be one of the most intractable areas of legal change because they are embedded within the family, which is viewed as a cornerstone of society and linked to deeply entrenched beliefs about religion, tradition, and culture.
Opponents routinely and forcefully misrepresenting reforms as a threat to religion, family, and identity. However, the right to culture and religion are human rights, but cannot supersede a person’s fundamental right to equality.
Child marriage – discrimination in marital ages, prohibition, and harmonization of laws
Occurring across religions, ethnicities, geographies, and cultures, girls are disproportionately affected by discriminatory minimum age of marriage laws and practices. Before the COVID pandemic, child marriage affected 12 million girls yearly, with even more entering into informal unions involving cohabitation without legal registration of marriage. The pandemic has exacerbated the problem and UNICEF estimates that an additional ten million girls are at risk of marrying under 18 years old during the next decade.
Marrying girls while still children opens them up to further human rights violations like early and forced pregnancy, lack of access to education and employment, domestic abuse, discrimination, and subordination.
Excluded from decision-making about the timing of marriage and choice of spouse, girls often face an abrupt and traumatic initiation into sexual relations. Denied the right to consent, they are essentially subject to rape/statutory rape, and those who become pregnant before biologically ready are at added risk of miscarriage, post-partum hemorrhaging, obstetric fistula, and even death.
A child cannot consent to marriage, and consistent with international and regional law, the minimum age of marriage should be 18, with no exception, whether governed by civil, religious or customary law. Countries must implement the Beijing Platform for Action, particularly paragraphs 274(e) and 275(b), which call on States to “enact and strictly enforce laws concerning…the minimum age for marriage and raise the minimum age for marriage where necessary” and “generate social support for their enforcement.” Equality Now welcomes the recent reforms in both the Dominican Republic and Cuba.
States must take a comprehensive legal approach to preventing child marriage, as outlined in the brief, while at the same time recognizing adolescents’ evolving sexuality.
Wife obedience, forced marriage, and polygamy
The right to equality and non-discrimination in the law is violated in other ways, such as with forced marriage when a spouse does not give free and full consent to wed. This is sometimes sanctioned by laws that allow guardians (often male) to “consent” on behalf of a woman or girl. An adult or judge should never be able to “consent” to marriage on behalf of a child or grown woman.
Polygamy is another violation still allowed in various countries, including Algeria, Indonesia, Kenya, Malaysia, Mali, and Tanzania. When a husband has multiple wives, women face severe challenges such as diminished inheritance rights and greater exposure to potentially fatal health conditions such as HIV/AIDS due to their spouse having multiple sexual partners.
In Zambia, the Marriage Act exempts all marriages under any African customary law from the minimum age of marriage requirements, normally 21 years. However, there is no minimum age of consent to marry under customary law, with customary practice allowing any girl who has reached puberty to get married.
In neighbouring Tanzania, the Law of Marriage Act permits marriage for 15-year-old girls, but for boys the minimum age is 18. In 2019, the Tanzania Court of Appeal upheld a landmark 2016 ruling by the High Court that marriage under the age of 18 is illegal. The Tanzanian government was directed to raise the minimum age of marriage to 18 for both boys and girls within one year but this has not happened.
Alarmingly, some states specify in law that women and girls must “obey” their husbands and/or male guardians. For example, Mali and Sudan mandate “wife obedience,” while Burundi and the Democratic Republic of the Congo instruct that a husband is head of the household. In Afghanistan, the household’s supervision is solely the right of the husband, and a wife’s right to leave the home is restricted.
These discriminatory marital status laws result in women and girls being subjected to sexual and gender-based violence and curtail their ability to make reproductive decisions. It also prevents them from being able to choose where they work or live, they are unable to leave home without consent and are relegated to a less equal status within the family and society.
In 1995, at the UN’s 4th World Conference on Women in Beijing, 189 governments agreed on a comprehensive roadmap to advance rights for women and girls and achieve gender equality. As legal equality is an essential component, one of the commitments made by states was that they would “revoke any remaining laws that discriminate on the basis of sex”.
More than a quarter of a century on and gender equality is far from a reality. Although there has been some progress, it has been slow and inconsistent and legal equality for women and girls has not been achieved by the vast majority. Legal equality between the sexes has only been achieved in 12 of 190 countries surveyed by the World Bank in 2022.
To keep countries accountable to the plan outlined in the Beijing Platform for Action, Equality Now has been tracking these laws and has conducted periodic reviews on sexist legislation around the world. Our 2020 report found that almost every country is failing to live up to the pledges they have made to eradicate explicitly sex discriminatory laws.
Antonia Kirkland, a human rights lawyer and Equality Now’s Global Lead on legal equality, explains: “Discriminatory laws make gender equality impossible. Until women and girls have legal equality, we will also continue to see the proliferation of harmful practices such as child and forced marriage, which fuel other human rights violations such as gender-based violence. We must continue to demand that governments take action to reform all sex-discriminatory laws, without exception.”
“In the lead up to the 30th anniversary of the Beijing Platform for Action in 2025, Equality Now is calling on states to respect, protect and realize women’s and girls’ rights to equality by taking immediate steps to end discrimination against all women and girls inlaws and practices including those relating to marital status.”