What was all the fuss about? The Marriage Bill does not end child marriage In Malawi

There are times that I ask myself whether Malawians are some different species of the human race. I, at times, consider Malawians as aliens. Last week, when news broke out that Parliament had passed the Marriage, Divorce & Family Relations bill, the country was filled with blissful pandemonium.

There was celebration among human rights activists; particularly gender and child protection activists. Being far from Malawi and doing a child protection PhD that looks at sexual exploitation of people below the age of 18 (i.e. children), I embarked on a mission to see faces of activists were filled with joy.

I was very unsuccessful in my efforts to find the electronic version of the bill. As I was about to give up, a friend emailed me a summarised version of the bill.

Gobsmacked!! What was all that fuss about? The passed marriage bill does not, in any way, end child marriages in Malawi. I should say here that, punitive measures that Acts intend to bring are not the sustainable solutions.  Initial findings from my own research suggest that children, like anyone else, can at times make very difficult decisions because of limited choices.

Often, because of their socioeconomic deprivation, the children in Malawi are vulnerable and at greatest risk of coercion to accept practices which subject them to sexual exploitation such as child marriages. The solution would be putting in measures to reduce this risk. The legal provisions might stop or reduce their risk from those who manipulate children; but do not offer the children a pathway out of their vulnerability.

However, from the copy I have, the Marriage, Divorce & Family Relations Bill does not even attempt to stop adults (even paedophiles) from marrying children. Instead, it gives them a leeway to carry on their manipulative behaviour, sexually abusing children whose only hope has been flushed down the toilet with passing of this bill.

Insensitive as it sounds but this bill cements child marriages by recognizing the legality of child marriages, saying children can enter into marriage. As stipulated in Section 2 which offers provision relating to marriage, the Bill provides that bearing in mind Section 22 of the Constitution, people below the age of 18 years can enter into a marriage and that, provided there is parental consent, suggesting therefore “that though the proposed age of marriage is now 18, this is not a tight minimum age, since the lower age of marriage with consent under the Constitution still applies”.

On prescribing 18 as the age of marriage and while bearing in mind Section 22 of the Constitution, the bill stipulates that “two people of the opposite sex who are not below the age of 18 years can enter into a marriage”.

The summary adds, with my own emphasis added: “Since Section 22 of the Constitution allows children between 15 and 18 years to get married with the consent of their parents or guardians, this suggests that though the proposed age of marriage is now 18, this is not a tight minimum age, since the lower age of marriage with consent under the Constitution still applies”. Flabbergasted!!

What is the minimum age of marriage according to the Constitution? Section 22(7) of the Malawi Constitution states that “For persons between the age of fifteen and eighteen years, a marriage shall only be entered into with the consent of their parents or guardians”.

For the bill to recognise this Stone Age framing is very sad. Why? The wording sounds as if children (let’s use the word: People [aged between Fifteen and 18 years]) marry each other. This is depressing because child marriages in Malawi often involve an adult, often a male adult, who uses his financial and paternalistic power to influence the child’s parents into giving up the children.

This occurs often in exchange of some financial favours. By this, the children become objects of sex for the pleasure of adults, i.e. the husband on one hand and her parents on the other end. The latter use her for financial gain while the husband (more like a paedophile), use her for quench her sexual thirst.

It has further been established that when PEOPLE below the age of 18 marry older people (People above the age 18), if parents are involved, this marriage arrangements are coercive and manipulative because of the man’s financial power base (which is often the case). The wedded child becomes the man’s slave for sex!! While using the 2010 Child Care, Protection and Justice Act, I would say the wedded child is a victim of sexual exploitation/sexual abuse.

Poignantly, this is a condition that the Marriage bill has perfectly failed to reverse! Yet, activists who should be wailing, beating their chest in sorrow were ululating in jubilation! Section 22(8) of the Constitution says “the State shall actually discourage marriage between persons where either of them is under the age of fifteen years” (emphasis mine).

You do not have to be Professor of Constitutional Law to understand this wording smacks the marriage bill’s presumed efforts to stop child marriage right on the face. This section of the Constitution is important because the Bill recognises it as somewhat ‘legal’ to marry at any age.

Note the wording: Discourage does not make illegal for one to enter into marriage below the age of Fifteen. Rather, what it means is that through its powers, the State will attempt to discourage (prevent or try to prevent; persuade against) such marriage arrangements where children are involved as the bride or bridegroom from happening.

However, the State knows that it will not always succeed in its efforts to prevent child marriage arrangements. When it does fail, the State will apparently nod to this malpractice; and the Marriage Bill presumably recognises such arrangement as legal.

Take for example, marriages by repute or permanent cohabitation through which the couple (in this case, one partner being below the age of 18) staying together, having sexual relationship; the existence of some level of financial dependence or interdependence and any arrangement for financial support between the parties; the reputation in the community that the couple is married, and their public display that they have a shared life. If the bill recognises the age in which one can enter into marriage to be fluid as outlined by the Constitution, I can only conclude that the Bill does not make it illegal child marriage arrangements which often follow some of the description of marriages by repute or permanent cohabitation.

I am aware the Constitution invalidates any Act inconsistent with its provisions. I expected the activists to champion for a change of in the Marriage Age in the constitution which was then to be reflected in the Marriage bill. But nah, I should possibly wait for that in another life, because we presumably think setting standards for divorce is significantly important to gender equality than the rights of children that we could allow the latter to be objects of sex for some adults. In other words, the activists were busy celebrating the passing of this bill chifukwa chakatundu wamasiye. Guys, koma penapake; what a reductionist perspective to gender equality.

In addition to children, others who had hoped that the bill would give them a safe-haven, are homosexuals (such as gays and lesbians). No marriage for same sex in Malawi!

Should President Peter Mutharika consent the bill? My answer is ‘no’.  As someone who has significant interests in matters of child protection, I urge the President not to so such a poignant thing. The activists who elevated this bill as the panacea to making child marriages history elevated a molehill as if it was Mulanje Mountain.

We can’t continue with business as usual when our children are being subjected to horrendous, slave-like practices!!! No Mr. President. Our children should not be subjected to bearing other children. Once the Bill comes to you, put in on the out-tray without any signature!

After writing all this, I came to my senses: I had just read a summary. May be I should wait for the full copy of the Bill. Like the activists who see this bill barring child marriages, what a waste of my time. I don’t see what all the fuss was about. Children continue to lose.

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