Counter-Mobilization against child marriage reform in Africaon 13 December 2017
By Ragnhild Louise Muriaas, Liv Tønnessen and Vibeke Wang
Child marriage is a human rights violation. It has potentially grave health consequences and negatively affects life prospects of girls worldwide. Approximately two-thirds of African countries have legislated a minimum age of marriage at or above 18. However, child marriage is still legally sanctioned in Sudan and Zambia. Due to the high rates of child marriage (34% in Sudan and 42% in Zambia), governments in both countries have recently launched reforms to end the practice. The reform has met counter-mobilization from religious leaders in Sudan. In Zambia, however, traditional leaders have acted as partners in the reform process. This is puzzling because the reforms challenge the authority of both traditional and religious leaders in regulating marriage practices.
By investigating the response of Islamists in Sudan and chiefs in Zambia to activism on child marriage reform, we have identified variations in whether the nature of marriage law was a factor for the presence of counter-mobilization. We find that it is not tradition or religion per se that explains variation in outcome, but rather whether marriage law is codified (Sudan) or not (as in the living laws seen in Zambia).
Child marriage reform in Sudan
According to the Muslim Family Law of 1991, the minimum age of marriage in Sudan is 10 years. When drafting a National Child Act, government reformers proposed progressive Islamic interpretation to argue for a minimum age of marriage at 18.
The 2010 Act does not explicitly include a minimum age of marriage, because it was regarded as too controversial. Reformers argued that child marriage should be included because the Act defines a child as a person under the age of 18 and includes provisions protecting the child against all forms of discrimination. Since the 2010 Act takes precedence over all other laws, reformers suggested that an amendment of the 1991 Muslim Family Law would follow as a natural second step.
The process led to religious actors mobilizing against the reform. The main argument was that the 2010 Act was in violation of both Sharia law and the Constitution. According to the religious actors, child marriage is a practice sanctioned by Prophet Muhammed that keeps pubescent girls and boys from illicit sexual relations and preserves reproduction.
The codification of religious law opens up space for political contestation of the correct interpretation of doctrine between political and religious elites. This has allowed reformers to advocate for progressive interpretations of Sharia. However, religious scholars have the upper hand in a political context where the constitution guarantees Sharia a central place in national legal frameworks.
Child marriage reform in Zambia
In Zambia, the Marriage Act of 1964 established the legal age for marriage as 21 years. However, youths can marry with parental consent and children under the age of 16 can marry if a court determines that marriage is not in "conflict with public interests". Most marriages in Zambia take place under customary law that puts puberty as the age of marriage.
The government’s campaign against child marriage has been two-pronged. They have identified statutory law reform as a priority area, and simultaneously launched a nationwide sensitization campaign, targeting traditional leaders as well as the public. A key part of both efforts is engaging traditional chiefs as agents of change.
The national elite are open to child marriage reform. There are two principal reasons for this. First, under the Chiefs Act of 1965, traditional leaders, who could potentially use their authority as political opposition, are not supposed to officially engage in politics. The legal power structure is decentralized, and chiefs’ powers depend on them being perceived as beyond politics. What is at stake in the political battle for chiefs is therefore their continued administration of both judicial and cultural practices in local communities.
Second, those who primarily preside over domestic disputes in customary courts are situated at the village level, at the bottom of the chiefdom hierarchy. This is another feature of the decentralized power structure in Zambia. Since village headmen enforce a living law, there is no guarantee that statutory law will take precedence in practice. Consequently, even if there is consensus on the law reform nationally, it might take years for this to have an impact on local practices.
Nature of law is key
Whether a marriage law is codified or not is one likely predictor of whether counter-mobilization does or does not occur against child marriage reform.
We identify two causal mechanisms: legal power structure and political battle. We propose two trajectories linking nature of law to counter-mobilization:
(1) codified laws create a centralized legal power structure where the political battle is over interpretation of the law. In the Sudanese case, the potential counter-mobilizers are strong at the centre. The codification of a Muslim family law in 1991 has fractionalized the political and religious elites over the correct interpretation of Sharia law.
(2) living laws produce a decentralized legal power structure where the political battle is over administration of the law. The potential counter-mobilizers in Zambia are on the peripheries, allowing for a consensus at the national level in cases where government actors wholeheartedly push for reform. The political battle is over the administration of law rather than its interpretation.
The findings may have implications for anti-child marriage advocates across the developing world. Knowing how child marriage reform processes develop differently in traditional-majority and Muslim-majority states may inform international agencies, national governments, and civil society organizations in their design and strategy for legal reform. Law reform is not a magic bullet to eradicate child marriage but it is a key step as it provides anti-child marriage advocates with ammunition to argue their case.
Ragnhild Louise Muriaas is Professor of Political Science at the University of Bergen. Liv Tønnessen is Research Director at the Chr. Michelsen Institute. Vibeke Wang is a Researcher, also at the Chr. Michelsen Institute. The blog post is based on the article "Counter-mobilization against child marriage reform in Africa" published on December 1, 2017 available to read now in Political Studies.
Image: DFID CC BY-NC-ND