Article 2 Sub Article (4) of The Constitution provides that any law or custom that is inconsistent with the Constitution is void. This means that all the laws and customs that regulate marriages in Kenya have to fit into the Constitutional threshold.
All Customary laws have certain rites and requirements that have to be fulfilled before a marriage can be complete. Section 4 of The Marriage Act sets the age of marriage at 18 years. It defines a marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act. Marriages are thus contractual relationships where consent of the parties is called for. Article 45 of the constitution in sub article (2) it states that every adult has the right to marry a person of the opposite sex based on the consent of the parties. The parties who enter into a marriage must also have the legal capacity to marry.
Some customs have been practicing and encouraging child marriage. The victim of this offensive practice is the innocent unwilling girl child who has already been subjected to female genital mutilation (FGM) in the name of preparing and ushering her into maturity. After FGM the poor girl has to behave like an adult suddenly. The girl is then prematurely married off to a man the same age as her grandfather. Once the old man has brought the cows and the goats as dowry, the poor girl has to comply. At times she has to be literally carried away crying by the man like a little lamb. She must not bring shame to her family. This marks the end of her education.
This has in turn contributed to gender inequality in Kenya. The girl is disadvantaged. The impact will no doubt affect generations and also violates Article 27 sub article (2) of the Constitution which stipulates that equality includes the full enjoyment of all rights and freedoms. We can’t call argue that this girl is enjoying her liberty or freedom. She has been converted into a sex slave.
The child also lacks equality rights at the time of marriage, during the marriage and at the time of dissolution of the marriage as guaranteed by Article 45 sub article (3) of the Constitution. Due to this inequality, the child also lacks economic empowerment that is enjoyed by other women who are older. She suffers from inequality on the basis of her status as a married child.
In a normal family setup, children are supposed to be in class studying and playing in line with the rights to education and not playing parents in a matrimonial set up. Article 43 of The Constitution sub article 1(f) stipulates that every person has the right to Education.
A child under 18 lacks the legal capacity to engage in a marriage and therefore she cannot enter into a valid matrimonial contract. The child also lacks the legal capacity to enter into any consent or a sexual relationship. This offends Article 45. In any event The Sexual Offences Act creates the offence of defilement under Section 8 subsection (1) which defines defilement as an act by a person which causes penetration to a child. In Kenyan, a marriage has to be consummated. A child lacks the legal capacity to consummate a marriage if they lack the capacity to consent into a sexual relationship. Child marriages fit into the space of defilement where these men should be prosecuted.
Before the age of 18, the reproductive system and organs of a child have not even developed. The child's reproductive system ends up being prematurely abused. This offends Article 43 of the Constitution sub article (1) (a) which stipulates that every person has the right to the highest attainable standard of health which includes the right to healthcare services, including reproductive health care. Furthermore such children lack sex and reproductive knowledge. This means that they have a higher prevalence in contracting sexually transmitted diseases from reckless husbands who have the potential of marrying up to three children at a time in the name of polygamy. This is inhuman and degrading.
The Children's Act is intended to insulate and protect the child from customary practices that offend the child. The dignity of such children is eroded. In article 21 sub article (3) of the Constitution all the state organs and public officers have the duty to protect the needs of the vulnerable in the society. Article 20 sub article (4) further states that while interpreting the bill of rights, a court, tribunal or other authority shall promote values that underlie a society based on human dignity, equality,equity and freedom.
We have to fight and stop child marriages