THE CHILD IN A CHILD: CHILD MARRIAGE AND LOST IDENTITY IN SOUTHERN AFRICA

Abstract

In most communities in sub-Saharan Africa, the definition of a child is culturally, politically, and socially unspecific and varied. The variance in meanings ascribed to a child is evident in legislative definitions, especially on the issue of child marriage. Child marriage, a human rights violation is a legal or customary union in which one or both spouses are below the age of 18. This practice is prevalent in most communities in sub-Saharan Africa. Arguably, it robs children of the opportunity to enjoy childhood and experience dependence, protection, and care. Rather, it turns them into protectors, nurturers, and providers. Children are shoved with the responsibility of being parents through child marriage. Thus, creating no demarcation between the role and responsibility of an adult and a child. Given that children are ill-prepared for marriage and its concomitant elements such as sex, psychological, emotional and physical maturity to be spouses and possibly parents, this paper argues that the journey to self-discovery and identity is at the intersection of culture, law, and religion. The clash between religious and cultural autonomy is a pervasive problem for national and international laws, one that arises because of claims of immunity from child protection and marriage provisions on the grounds of cultural or religious autonomy. Informed by observation during fieldwork in Southern African countries and literature on cultural relativism, this paper suggests that the clash between cultural autonomy and child marriage prohibition is best addressed through a legal pluralist perspective. This perspective seeks to bridge the gap between customary law, national laws, and international treaties, and requires sensitivity to the economic and socio-cultural factors behind the persistence of child marriage.