sexual health and human rights in the african region - The ICHRP

United Nations instruments do not countenance the idea of third parties such as
parents or guardians imposing their will and coercing their children into
marriage. 446 The Women’s Convention expressly says that the betrothal and
marriage of a child has no legal effect. 447
[4] However, there are some gaps in international human rights law. United Nations
instruments do not expressly provide for a numerical age for marriage, save for
the state obligation to set a minimum age for marriage, 448 and recommendations
by treaty bodies that eighteen years be the minimum age. 449 The Children’s
Convention does not expressly address the human rights of married children
save by way of inference in the duty incumbent upon states to take all effective
and appropriate measures to abolish traditional practices prejudicial to the health
of children. 450
4.3 Regional Human Rights Law, Consent and Age for Marriage
[5] The African Charter does not speak directly to capacity to marry, or the age
consent to marriage. 451 The African Children’s Charter speaks implicitly to
customary practices that require children, especially girls, to be married off early
when it says that ‘states shall take all appropriate measures to eliminate harmful
social and cultural practices affecting the welfare, dignity, normal growth and
development of the child and in particular those customs and practices
prejudicial to the health or life of the child and those customs and practices
discriminatory to the child on the ground of sex or other status’. 452 The African
Children’s Charter speaks directly to marriage and capacity to marry when it
says ‘Child marriage and betrothal of girls and boys shall be prohibited and
effective action, including legislation, shall be taken to specify the minimum age
Convention; Committee on the Elimination of Discrimination Against Women General Recommendation 21:
Equality in Marriage and Family Relations (1994) para 16; article 1 of the Convention on Consent to
Marriage, Minimum Age for Marriage and Registration of Marriages General Assembly resolution 1763 A
(XVII) adopted on 7 November 1962, and entered into force on 9 December 1964.
446 Human Rights Committee General Comment 28: Equality of Rights Between Men and Women (2000) para
28; Committee on the Elimination of Discrimination Against Women General Recommendation 21:
Equality in Marriage and Family Relations para 38;
447 Section 16(2) of the Women’s Convention.
448 Section 16(2) of the Women’s Convention.
449 Committee on the Elimination of Discrimination Against Women General Recommendation 21: Equality
in Marriage and Family Relations para 36; Committee on the Rights of the Child General Comment 4
Adolescent Health in the Context of the Convention on the Rights of the Child para 20
450 Article 24(3) of the Children’s Convention.
451. The closest that the African Charter gets to marriage is article 18(1) which says that: ‘The family shall
be the natural unity and basis of society. It shall be protected by the state which shall take care of its
physical and moral health’. Of course, other provisions of the African Charter, including the right to
equality (articles 2, 3 and 18(3)), integrity (article 4), human dignity (article 5), and health (article 16) are
also applicable to practices or earl/child marriages and coerced marriages.
452 Article 21(1) of the African Children’s Charter.
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