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

marriages generally recognize marriages of persons whose ages put them below
and in conflict with the ages of consent for sexual intercourse.
[14] An increasing number of African jurisdictions have adopted specific legal
instruments to criminalize transmission of HIV. However, the public health
utility of the laws is highly debatable.
9.4 Regulation of Marriage and the Family
[15] All countries have plural sources governing marriage. With the exception of
Zimbabwe which does not make provision for religious laws, marriages in all the
countries are governed by civil law statutes, customary law and religious law.
Uganda and Malawi are exceptional in having constitutional provisions that
directly address marriage.
[16] There is no uniform minimum age for civil marriage across the African region.
For the majority of countries, 18 years is the age for consent to civil law marriage
without the consent of the parents. However, Kenya, Malawi, Nigeria, Uganda
and South Africa that have retained 21 years. To this extent, these countries do
not meet their implied state obligations under the Children’s Convention which
treats persons that have attained 18 years or more as adults and not children as is
implied by statutes that require parental consent for all persons under 21 years of
age.
[17] On average, African countries prescribe discriminatory ages of consent in their
civil law statutes, setting a higher age for males and a lower age for females to
maintain a gap of two to three years. For marriages under 18 years, civil law
invariably requires parental consent. Sixteen years is the average minimum age
for marriage with parental consent. Tanzania with 15 years, as the minimum age
of marriage for girls, illustrates a minimum age which is below the average age.
[18] The customary law of African countries does not prescribe a minimum age for
marriage. Though customary law requires consent of the parties to the marriage,
it creates opportunities for coercion as evidenced by early/child marriages
mainly though the practice of parents arranging marriages for their children
regardless of their wishes.
[19] Islamic Shari’ah does not prescribe the minimum age for marriage. Though
Islamic Shari’ah marriage law requires the consent of the parties to the marriage,
in practice, it creates opportunities for coercion in the same way as customary
law.
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