Huge common problem

Zimbabwean Parliamentarian, Hon Innocent Gonese, says child marriage is "problematic" in the SADC region and it was about time the region united against it.

"It is something we all need to confront and coming up with a model law is going to give guidance to our respective countries," he says.

Gonese hails the SADC Parliamentary Forum for making the drafting of the model law an interactive process involving many stakeholders.

"As representatives of the people we come across child marriage. Enabling us to go through this draft clause by clause enables us to give our thoughts so that there is ownership in the whole process."

He says by the time that the Model is made available to respective National Parliaments, those who were involved in its development would be able to help "colleagues who were not part and parcel of the process to be aware of the law and what it seeks to achieve."

Gonese, a lawyer by profession, says while law was not a panacea, it was important in the achievement of set goals.

"Legislation is very important because we have to buttress education and sensitisation with some pieces of legislation which deal with given problems. I believe that once we have a model law and our respective countries enact appropriate legislation, that would go a long way towards reducing child marriages which are endemic in the region," he says.

Major breakthrough

Prominent High Court Judge, Professor Dr Key Dingake who has followed the development of the draft model law with keen interest describes it as "belated but also timely."

Says the Judge: "The fact that the SADC Region has now converged to address this problem is commendable."

Judge Dingake sat through many sessions at which stakeholders spent examining the draft model law.

"Everyone realises that child marriage must be stopped. That is a major breakthrough. There were sticky points related to details which reflect the dynamics in individual countries but that should not detain us. What is important is that we have agreed as a region to stop child marriage and we know the adverse consequences," he says.

Turning to the manner in which the model law was being developed, the Judge said he was happy with the "critical approach" and the exhaustive clause by clause scrutiny that was bound to cultivate ownership.

"Political ownership can only come from the people's representatives."

Of soft law

While acknowledging the fact that proposed model law falls into the category of non-binding soft laws, Judge Dingake says it should not be taken for granted.

"Jurisprudentially, we are moving to a stage where even judges consider soft law as a part of the guidance. From that perspective soft law is now part of international law. Soft law can transform into legislative provisions. To that extent, one must celebrate it."

On what SADC PF should do after the model law has been fully developed and adopted by its Plenary Assembly Session, the judge says much would still need to be done.

"There is need to cultivate Executive ownership. The reality is that the power of SADC is interlinked with the political will of the Executive. If the Executive is not willing or does not understand, has reservations, is reluctant or is indifferent, this law will not go through. That is very important. Once the Executive has been won over, there is need to create awareness among members of the public including certain critical constituencies," he says.

A leap of courage

An MP from Mauritius, Hon Shakeel Mohamed, said by bringing MPs and stakeholders to discuss the draft Model Law, the SADC PF had shown "courage."

"SADC PF is spearheading this agenda of outlawing child marriage. It's not easy to bring to the table people from different countries. It's even more complicated to bring together people from different cultural backgrounds," he says.

He said during the intense debate around the draft model law, one of the "thorny" issues was related to the age that defined a child.

"Some people said it should be 18 in line with international conventions. Some have suggested that it should be 21. Consensus has been that it be 18. Another interesting issue which the Mauritian delegation brought up was around the age at which sexual intercourse can be deemed legal. In many jurisdictions of member states, 16 happens to be the norm. International organisations also talk about the age of 16," Hon Mohamed said.

He said that presented a dilemma.

"How does one reconcile the fact that one is allowed legally to have sexual intercourse when one is 16 as opposed to the fact that one is not allowed to get married until one is 18 years old?"

He described that as an interesting "conflictual issue" that should perhaps be left to sovereign states to resolve in keeping with their cultural and religious sensitivities.

Call for political will

Asked what difference the model law would make it embraced and implemented, he said: "Getting together and preparing a model law is one thing. Implementation and seeing it translated into law in different Parliaments is another thing. I think we are still far away from the implementation issue. What it takes is political will amongst Parliamentarians. It is still to be tried and tested if there is political will among those in cabinet."

He said SADC PF was providing a platform from which people, especially Parliamentarians, could work together to resolve common problems.

This process has for me been a voyage of discovery; learning through various interactions how people view one subject differently. That has been enriching."

He said focus should be placed on coming up with a law that is gender neutral and shows uniformity among Member States.

"We should be courageous enough to put aside our cultural differences and prohibit child marriage."

Turning to the clause by clause scrutiny of the draft model law, he said said the process had been "meticulous".

"We went into the nitty gritty of this law. What is of paramount importance is the interest of the child."

His Royal Highness Prince Dhlamini, a Senator from Swaziland, said he was excited to be part of a process to chart "a new order of things in terms of child protection laws and making sure that children grow up in an environment in which they can be adults before they do the adult things."

He said the draft model law "is good, although it touches on peoples cultures." He added: "We have to stamp out child marriages but we have to approach these issues soberly otherwise there would be social commotion."

He said the process of developing the model law had enabled most MPs to better appreciate the letter and spirit of the proposed legislation.

"We are more relaxed now and most of us understand what is being intended with this model law but going forward, a lot of work still needs to be done."

Research

Namibian Parliamentarian Hon Ida Hoffman says she will advocate for research to better appreciate the extent and impact of child marriage in Namibia. Her view was that child marriage is a problem in certain cultures and traditions and not in others.

"What I know is that we have high rates of early pregnancies which disturb girls' education. It is important that we understand the experiences of the different regions of Namibia with respect to child marriage and teenage pregnancy," she says.

Her view is that the media should play a key role in highlighting the extent and impact these problems in Namibia and other countries.

"We need to discourage our children from rushing into marriage. Education is important and so we must ensure that children are in school."

Noting that in some instances children are forced into marriage by parents or guardians, Hon Hoffman said: "Those who are taking care of children must do the best for the children. Protect children from sugar daddies."

Developed with funding from Sweden, the draft Model Law on Eradicating Child Marriage and protecting those already in Marriage is now set to be presented to the Plenary Assembly Session for adoption this year.

Continental problem

Hon Jaime Augusto Bessa Neto, a Parliamentarian from Mozambique said child marriage was a major problem on the entire African continent.

"It is, therefore, good that we in SADC are trying to find a solution to the problem. We have a saying in Mozambique that if we educate a woman we educate a society and a nation. As a country we fully support this Model Law."

Neto said some aspects of the draft Model Law were not applicable to Mozambique without elaborating. He stressed, nevertheless, that the Model Law was a regional document and Member States would have to take aspects that were relevant to their prevailing national peculiarities.

He said SADC PF had done well to include more stakeholders beyond MPs and staff of Parliament in developing the model law.

"We are working with other experts with knowledge on this matter. They include judges and lawyers. I am sure this will be a richer Model Law as a result."

Neto said together with fellow MPs who attended the validation session from Mozambique, he would hold a briefing session with other MPs in Mozambique on the Model Law.

"We will use television and Radio Mozambique to popularise this model law," he said.

Overdue

Veteran South African law maker, Hon Rosalia Morutoa who chairs the multi-party Women's Caucus, says a SADC Model Law against child marriage was "long overdue."

"I am so happy that after years of lobbying, we have such a law (in the making); a guiding law that we can utilize in our countries," she says.

Morutoa said during the vigorous debates on the draft Model Law it became clear that people had different opinions about child marriages.

"Some think there is legitimacy somehow and that laws against child marriage might restrict tradition. Some MPs felt that the model law in its current form tends to discriminate against boys. For us who deal with such issues in the women's formations, this law is very welcome. The leadership of SADC PF has done a very good job."