Child marriage in Ghana: A legal perspective and call to action for cultural reform
In Ghana, the collision between cultural traditions and modern legal frameworks often comes to a head in practices such as Female Genital Mutilation, Scarification and Child Marriage, among others.
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The recent incident of a 63-year-old marrying a 16-year-old girl under the guise of tradition exemplifies the pervasiveness of this issue, prompting a critical examination of the intersection between culture and law.
What Is Child Marriage
To define child marriage, we must first look at who a child is. A child per Article 28(5) of the 1992 Constitution is defined as a person below the age of eighteen years. Section 1 of the Children's Act, 1998 (Act 560) also defines a child as a person below the age of eighteen years.
United Nations Children's Fund (UNICEF) defines Child marriage as "a formal marriage or informal union of a child under the age of eighteen (18)." It is also defined as the practice where one or both spouses enter into marriage while below the age of 18 years. In summary, child marriage may be defined as a formal marriage or informal union of a person under the age of eighteen (18).
Historical perspective
Historically, child marriage was prevalent, especially in rural areas, where it was seen as a cultural norm and economic strategy. Poverty and social pressure often drove families to marry off their daughters early to reduce financial burdens and protect family honour. Traditional beliefs emphasised early marriage to ensure obedience, chastity and alignment with societal expectations.
The 1992 Constitution of Ghana, per Article 28(2), indirectly forbids child marriage, ensuring children's access to essential services like health and education, in order to mitigate the vulnerabilities that predispose children to the perils of early marriage.
Child marriage in Ghana violates Article 16(2) of the Universal Declaration of Human Rights, which states that “Marriage shall be entered into only with the free and full consent of the intending spouses.”
Article 16 of the Convention on the Elimination of all Forms of Discrimination Against Women emphasised that women should have the same right as men to “freely choose a spouse and to enter into marriage only with their free and full consent”.
The Children's Act 1998 (Act 560) sets a minimum age of eighteen (18) for marriage, ensuring children have adequate intellectual, emotional and physical abilities to transition into adulthood. Act 560 also prohibits betrothal and forced marriage, promoting mutual consent devoid of coercion.
Section 59 of the Marriages Act, 1884-1985 (CAP 127) requires a child under 21 years old to obtain written consent for marriage from their father, mother or guardian. This requirement stems from the presumption that a child below this age lacks the mental capacity to provide consent to enter into the marital union.
The Domestic Violence Act 2007 addresses abuses within domestic relations, including early or forced marriages. It postulates that child marriage is a form of violence against young girls, as it increases their vulnerability to sexual, physical and psychological violence due to the unbalanced power dynamics within marriage.
Violations of child marriage provisions result in fines, imprisonment or both.
Culture versus law
Culturally, child marriage may be perceived as a rite of passage, a means of cementing familial alliances, or a strategy for economic survival, reflecting deeply ingrained beliefs about gender roles, family honour and societal expectations.
The Law regulates conduct and safeguards individual rights. The tension between culture and law, particularly concerning practices like child marriage, illuminates the complexities inherent in reconciling traditional norms with contemporary legal frameworks.
While culture encompasses a rich tapestry of beliefs, customs and traditions that define societal identities, the law serves as a codified expression of norms and values aimed at regulating conduct and safeguarding individual rights.
When cultural practices infringe upon fundamental human rights or contravene established legal standards, a delicate balance must be struck between respecting cultural diversity and upholding universally approved standards of justice and equality.
In communities where child marriage is deeply entrenched as a cultural norm, legal prohibitions may encounter resistance or indifference, posing challenges to effective enforcement.
The current situation
The office of the Gborbu Wulomo-Shitse has clarified the current controversy surrounding the marriage of a 16-year-old girl to be betrothal rather than marriage. However, whether it is considered marriage or betrothal is left to the court of public opinion to decide. Some of these cultural practices date back to the 18th Century; they were practised without any controversy.
However, as society's beliefs change and human rights awareness rises, scrutiny of culture and laws becomes more prevalent, necessitating thorough analysis and discussion to protect citizens' rights, especially vulnerable groups like young girls.
The way forward
Resolving the conflict between cultural traditions and legal statutes necessitates a multifaceted approach that honours cultural diversity while upholding universal human rights.
Through collaborative efforts, constructive dialogue and promoting legal awareness, communities can navigate the intricate intersection of cultural norms and legal obligations.
The writer is a Pupil at Ghartey and Ghartey. Her areas of Interest are Information Technology Law, Family Law and Human Rights