By Emmanuel M. Kamara, Esq.
What is Marriage in the context of law?
Marriage is a legally and socially sanctioned union, usually between a man and a woman who are of majority age, and that union is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners.
In Sierra Leone there four types of Acts that categorically regulate marriages to wit: The Christian Marriages Act, Cap 95 Laws of Sierra Leone, 1960, the Muslims Marriages Act, Cap 96 Laws of Sierra Leone, 1960, the Civil Marriages Act, Cap 97 Laws of Sierra Leone, 1960 and the Registration of Customary and Divorce Act, 2009. It is important to note that marriage in Sierra Leone can only be contracted by persons who are eighteen years or older and there are other Acts that address incidents/issues within marriage to a point of prohibiting some acts affecting a child.
This year, 2024, the Prohibition of Child Marriages Act, 2024 has been enacted “to prohibit child marriage, to provide protection for the victim of child marriage, and to provide for other related matters.” The new Act seeks to address a number of issues relating to child marriage and is seen as the first attempt to codify the prohibition of child marriage in Sierra Leone.
Meanwhile, I am not sure this new Act, the Prohibition of Child Marriage Act, 2024 is necessary as what it seeks to address had been already addressed by other legislations.
For instance:
- a child as described by the Prohibition of Child Marriage Act, 2024 has been same described by Section 2 of the Child Rights Act, 2007. In essence, a child is recognised in Sierra Leone to be one who is under the age of eighteen years and therefore lacks consent to enter into marriage.
- Child marriage has been effectively prohibited by Section 34 of the Child Rights Act, 2007 and the Prohibition of Child Marriage Act, 2024 has come to outlaw that which has already been outlawed.
- Take a look at Section 35 of the Child Rights Act, 2007 which already provides an offense for whosoever causes or participates in child marriage.
- (a) Again, Part IV of the Prohibition of Child Marriage Act, 2024 provides for an annulment of child marriage through petition. The question is, how could you annul something that is non-existent? Child marriage is void ab initio by reasoning of the Child Rights Act, 2007.
(b).Look at section 15of the very Prohibition of Child Marriage Act, 2024which states that a“child marriage contracted after the coming into effect of this Act shall be void.”
I know some people may be tempted to state that Section 2(2) of the Registration of Customary Marriages and Divorce Act No 1 of 2009 permits underage marriage that parents could give consent and where the consent is unreasonably withheld, a magistrate or other authority can give consent in lieu thereof.
To appropriately answer them it is important to look at the following:
- Section 2(1) (a) of the Registration of Customary Marriages and Divorce Act No 1 of 2009 already provides that marriages contracted after the coming into operation of the said Act, shall be VALID ONLY IF both spouses are not less than eighteen years old and consent to the marriage,
- Section 34(3) of the Child Rights Act, 2007 states to wit: “Notwithstanding any law to the contrary, no certificate, licence or registration shall be granted in respect of any marriage unless the registrar or other responsible officer is satisfied that the parties to the marriage are of the age of maturity” – this means that a marriage involving a child cannot be registered.
Invariably, it is important to push the argument further within the context of sex and marriage and how both affect a child within the framework of the laws of Sierra Leone. Marriages should be consummated within a year after marriage and a failure to consummate provides an opportunity for annulment of such a marriage. If you put this in context to a child you could see clearly that a child cannot consent to sex:
- If you take a look at Section 4 of the Sexual Offenses Act, 2012 to wit: “Subject to section 24, a person below the age of 18 is not capable of giving consent for the purpose of this Act, and, accordingly, it shall not be a defence to an offence under this Act to show that the child has consented to the act that forms the subject matter of the charge”, that is sex, – it implies that a child cannot consummate a marriage.
What needed to have been done?
In my view, the only thing needed to have been done to adequately take care of and/or prohibit child marriage is to review and incorporate the consequential amendments in the following Acts separately as provided in the Prohibition of Child Marriage Act, 2024:
- The Registration of Customary Marriage and Divorce Act, 2009
- The Child Rights Act, 2007
- The Christian Marriage Act, Cap. 95 of the Laws of Sierra Leone 1960
- The Muslim Marriage Act, Cap. 96 of the Laws of Sierra Leone 1960
- The Civil Marriage Act, Cap 97 of the Laws of Sierra Leone 1960
In conclusion, the enactment of laws should be primarily dictated by the neural objective legal principle as opposed to the political agenda of the administration in power at the time.
