The Star (Nairobi)

24 October 2012

Kenya: The Issue of Child Marriages

Photo: Unicef
Child marriage in Kenya.

I was watching a documentary on television the other day, whose focus was on a tribe in India which engages in the practice of child marriage.

Children as young as seven years are married off and expected to start families. The vice goes on unabated, despite its medical hazards to the young children, the girl child being the most affected.

In Kenya, there are communities which have child marriages as part of their customs, and some of those communities practice the same today, oblivious of the fact that it is a violation of the children rights.

Children are vulnerable members of our society and are therefore prone to abuse, misuse and neglect. Some have taken the custom further by marrying off children to adults, which is a further violation of their rights.

Article 53 of the constitution provides that every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.

Article 28 provides that every person has inherent dignity and the right to have that dignity respected and protected. Marrying off children is a disregard to their dignity.

Article 45 which deals with family provides that every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.

I emphasize the words adult and consent of the parties. Vide this provision therefore, children marriages are illegal. In most of the cases, the marriages are conducted forcefully, and children being vulnerable, cannot do anything about it.

Section 14 of the Childrens' Act provides that No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child's life, health, social welfare, dignity or physical or psychological development.

The constitution provides no person shall be forced to marry or get married and the Childrens' Act further prevents forcing children to early marriages.

The criminal sanctions that can be enforced on individuals who carry out this offence are severe. The Sexual Offences Act, section 8 thereof provides that:-

1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

2. A person who commits an offence of defilement with a child aged 11years or less shall upon conviction be sentenced to imprisonment for life.

3. A person who commits an offence of defilement with a child between the age of 12-15 years is liable upon conviction to imprisonment for a term of not less than 20 years.

4. A person who commits an offence of defilement with a child between the age of 16-18 years is liable upon conviction to imprisonment for a term of not less than fifteen years.

Section 9 of the same act provides that a person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.

It further provides that a person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than 10 years.

The above provisions, as regards child marriages focus on adults who get married to children prescribe punishments which are very severe.

Section 29 provides that any person who for cultural or religious reasons forces another person to engage in a sexual act or any act that amounts to an offence under this Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than ten years.

Section 14 of the Childrens' Act does not prescribe a punishment for any one that conducts or facilitates early sex marriages, or anyone that marries a child, however the said perpetrators can be charged under the sexual offences act with a host of counts, like the ones shown above.

It is our duty to protect our children and prevent the prevalence of this vice. Children who are married off at an early age face many challenges.

They don't get an opportunity to complete their education, they are bound to have abortions, they are prone to miscarriages since their bodies are not ready for child birth, and some of them die while giving child, among other challenges.

The current legal framework should further be strengthened so as to stop this vice. However much we love and cherish our cultures, some elements should be done away with as they are not in anyway helping the society.

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