Child,early, and forced marriages (CEFM) in the Commonwealth: the role of the judiciary

Forced marriage, especially that involving children, is one of the greatest challenges facing individuals around the world and is integral to the full realization of universal human rights, women’s rights, and the rights of the child. This paper examines the effects of child, early and forced marriages (CEFM) within the Commonwealth, with a specific focus on East Africa, and highlights how to best address the issue using international, regional, and national legal norms and judicial processes currently in place. The East African countries examined are Kenya, Rwanda, Uganda and Tanzania. The paper begins with a general introduction of why combating CEFM is an important topic for consideration by the Commonwealth Secretariat and the efforts being made to address it. The introduction is then followed by the background section which gives a historical overview of CEFM at the global level. The paper defines ‘CEFM’, which is crucial since the definitions often vary depending on how CEFM is worded in respective jurisdictions, followed by CEFM’s manifestation within East Africa. Discussing the history of CEFM often helps one understand the hidden challenges that hinder effective implementation of efforts to counter it. The discussion on hidden challenges illustrates how culture and customs play an important role in the prevalence and acceptance of CEFM, as well its damaging effects on education and health. The rest of the paper examines the legal frameworks in place to address CEFM within the four jurisdictions. This includes examination of international instruments such as the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage to regional instruments such as the Protocol on the Rights of Women in Africa to the African Charter on Human and Peoples’ Rights, in an attempt to analyze the legal obligations that arise from these conventions. Considering that the main target audience of this paper are those within the judiciary (most specifically East Africa), it is important also to take a closer look at the national legal frameworks in place, comprising of national constitutions and statutory laws. The paper then concludes with a section on recommendations and finally and most importantly relevant case law in Appendix 1.