EXPLANATORY NOTES ON THE MODEL LAW ON ERADICATING CHILD MARRIAGE AND PROTECTING CHILDREN ALREADY IN MARRIAGE
1.0 RATIONAL AND OBJECTIVES
Please refer to the Position Paper for a comprehensive rationale and objectives of the Model Law.
Child marriage remains a problem in Southern Africa due to a variety of factors. These include poverty; gender inequity; tradition; insecurity, especially in times of conflict, limited education and lack of adequate legal frameworks in Member States, most of which are inconsistent. In at least five countries in the Southern African Development Community (SADC), almost 40% of children are married before they are 18 years of age. Malawi and Mozambique are amongst 10 countries in the world with the highest rates of child marriage. In both countries over 50% of children are married before they are 18 years of age. In Mozambique and Malawi 1 in 2 girls is married before she turns 18 years of age. In Zambia and Madagascar, the prevalence of child marriage is over 40%;
The Model Law is intended to trigger policy reforms and development or revision of substantive laws in Member States (MS) of SADC as:
- it is a regional process shifting focus from national requirements to regional dimensions based on best regional practices, shared experiences, convergence of ideas, principles and concepts and arrived at through consensus, making it a useful tool for policy discussions, enactment of laws, decision-making and efficacious enforcement which is dynamic in achieving within the region harmonisation beneficial to eradicating child marriage;
- it is based on international human rights instruments already committed to by MS thus making MSs comfortable with it and enabling them to be compliant with their international obligations;
- it sets in motion efforts already begun at national level and provides a well researched model establishing a regional standard, against which efforts in MSs can be measured, that has been approved by MSs at a high level having, though not binding in itself, a binding effect on MSs; and
- It is dynamic as it makes it possible or easy to transpose or transplant its contents without much effort as it describes and explains its adopting or adapting process.
MS should use this Model Law to develop their National laws as it creates a robust and uniform legal framework relating to the prohibition and prevention of child marriage and is a key path to addressing Sexual Reproductive Health Rights.
The objective of the Model Law is, therefore, to serve as a yardstick and an advocacy tool for legislators in the SADC Region. It also provides best practice language without loopholes which can be easily adopted or adapted by Member States in their laws dealing with the eradication of child marriage.
The Model Law will assist policy makers and legislative drafters to address all the relevant areas in need of legislative reform without usurping the authority of national legislatures to determine the content extent, style and form of their national laws. The following key users of the Model Law have been borne in mind when developing this Model Law:
(a) policy makers, when developing policies and strategies relating to eradication of child marriage;
(b) legislative drafters, when drafting national laws on eradicating child marriage;
(c) lawmakers, when enacting legislation on the eradication of child marriage;
(d) judicial officers, when interpreting the laws on and related to eradication of child marriage;
(e) researchers, when doing research on child marriage; and
(f) administrators, when applying and implementing the laws on and related to eradication of child marriage.
Most Parliaments of SADC Member States have constitutional competence to initiate through Members of Parliament or the Executive legislation for enactment by Parliament following set procedures as contained in national laws and standing orders or rules of the National Assembly. However, for purposes of the SADC Model Law it is important that a close working relationship with the Executive is established to ease the process of successfully enacting the national legislation on this matter.