PRESERVING GIRLHOOD: THE INTERNATIONAL OBLIGATION TO PREVENT CHILD MARRIAGE

Notwithstanding persisting pockets of resistance from some quarters, the international human rights movement has succeeded in raising popular consciousness on the undesirability of child or early marriage.Footnote ⁷ Apparently convinced that child marriage (which has been shown to affect the girl child disproportionately) is a violation of several human rights, states have addressed the issue in human rights instruments adopted at regional and global levels. As this section shows, a state's obligation to preserve girlhood through the prevention of child marriage can be either direct or indirect. The obligation is indirect when it arises as part of the state's duty to prevent other violations connected to the practice of child marriage.

From a global perspective, the Universal Declaration on Human Rights (UDHR) sets the tone in its article 16, which affirms the equal right of men and women to marry and found a family. Article 16 further requires that prospective couples should be of full age and enter into the marriage with free and full consent. As will become clear, this formulation in the arguably non-binding UDHR has inspired similar provisions in other global and regional instruments just as it has influenced the drafting of national laws. Apart from the express requirement that marriage must take place between persons of full age, the requirement in article 16(2) that the consent to marry should be free and full precludes child marriage, since uninformed consent and coerced consent cannot qualify as free or full consent.

Building on article 16 of the UDHR, article 23 of the International Covenant on Civil and Political Rights (ICCPR) also guarantees the right of men and women of “marriageable age” to marry and found a family, emphasizing that “no marriage shall be entered into without the free and full consent of the intending spouses”. International law's prohibition against child marriage is further reinforced in article 10 of the International Covenant on Economic, Social and Cultural Rights, in which states recognize that “marriage must be entered into with the free consent of the intending spouses”. While some would argue that nothing in these provisions precludes consent given by a person below the legal age of maturity, the municipal criminal law practice of invalidating consent allegedly given by minors in cases of alleged rape serves as a compelling basis for the argument that a child's consent does not actually constitute consent.

Equally important for understanding a state's obligation to tackle child marriage is the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which contains provisions that directly and indirectly obligate states to prohibit child marriage. In terms of indirect but applicable provisions, article 2 of CEDAW requires state parties to adopt relevant measures to prohibit all forms of sex or gender based discrimination, and specifically obligates states to abolish customs and practices that discriminate against women.Footnote ⁸ However, article 16 represents CEDAW's most direct provisions on child marriage. Whereas in article 16(1)(a) state parties recognize the right of both males and females to enter into marriage, article 16(1)(b) recognizes the right of people freely to choose a spouse and only to enter into marriage with their full and free consent. Article 16(1)(e) further requires states to protect women's right to decide (on equal terms with men) on the number and spacing of children. This is arguably impossible where, instead of a woman, it is a girl child who has to compete with a mature man in decision making. Even more importantly, in very specific terms, article 16(2) obligates states to invalidate the betrothal and marriage of a child and to enact legislation setting out a national minimum age for marriage.

In stark contrast to the instruments highlighted above, the Convention on the Rights of the Child (CRC), which is dedicated specifically to the rights of children, does not contain provisions that expressly prohibit child marriage. Notwithstanding this lacuna, certain rights guaranteed in the CRC indirectly require states to take positive steps to protect the girl child from becoming a victim of child marriage. These include: article 2, which requires states to ensure that the rights in the CRC are respected and guaranteed to all children without discrimination, inter alia, on grounds of the child's gender; article 3, which requires state institutions such as courts, administrative authorities and legislative bodies only to take action that is in the best interest of the child; and article 4, which obligates states to take all appropriate action to protect and implement the rights guaranteed in the CRC. Further, article 6 requires states to ensure that children's right to life is protected and that every child is assured of survival and development. Article 19 requires states to take appropriate measures to protect children from physical and mental violence and abuse, specifically including sexual abuse. Article 24(2)(a) of the CRC further obligates states to take measures to diminish infant and child mortality, while sub-article (3) requires states to take measures to abolish traditional practices that are prejudicial to the health of children. Other relevant provisions in the CRC include: article 34, requiring states to protect children from all forms of sexual exploitation and sexual abuse; article 35, calling for the protection of children from abduction and sale; and article 36, obligating states to protect children from all forms of exploitation prejudicial to any aspect of a child's welfare.

Two other relevant global instruments are the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices (Supplementary Slavery Convention)Footnote ⁹ and the Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (Consent to Marriage Convention).Footnote ¹⁰ Adopted in 1956, the Supplementary Slavery Convention creates a framework that links child marriage and slavery-like practices. According to its article 1(c)(i), states are required to take steps to end practices in which a woman, who has no right to refuse, is promised or given in marriage on the payment of any form of consideration to some other person(s) or group. Read together with article 35 of the CRC, which requires states to protect children from abduction and sale, article 1(c)(i) of the Supplementary Slavery Convention applies to situations such as those in Koroua v Niger Footnote ¹¹ (before the Community Court of Justice of the Economic Community of West African States), in which voiceless under-age girls were exchanged for payment in transactions branded as marriage. For its part, article 1 of the Consent to Marriage Convention provides that “no marriage shall be legally entered into without the full and free consent of both parties” and “such consent shall be express by them in person”. The convention further obligates states to specify a minimum age for marriage, which shall not be less than 15 years.Footnote ¹² Overall, these global instruments to which African states are party impose a minimum obligation on those states to protect children, especially the girl child, from the menace of child marriage.

Within Africa itself, under the framework of the African Union,Footnote ¹³ the African Charter on the Rights and Welfare of the Child (African Children's Charter) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women's Protocol) contain provisions that specifically or generally speak to the issue of child marriage. In general terms, in its articles 3 (non-discrimination), 4 (best interest of the child), 5 (survival and development of the child) and 11 (child's right to education), the African Children's Charter requires state parties to protect children from some of the consequences of child marriage. Such consequences include discrimination against girls, threat to life especially resulting from under-age pregnancy and the denial of access to education occasioned by early marriage. Other generally applicable provisions include articles 14 (child's right to health), 16 (protection against child abuse and torture), 27 (child's protection from sexual exploitation) and 29 (child's protection from sale, trafficking and abduction).Footnote ¹⁴ In very direct and specific terms, article 21 of the African Children's Charter requires states to take measures to protect children from harmful social and cultural practices, expressly demanding that states prohibit child marriage and the betrothal of girls and boys. Article 21 further requires states to assert 18 years as the minimum age for marriage.

In very similar terms to the African Children's Charter, the African Women's Protocol also directly and indirectly obligates African states to protect the girl child from early marriage. Hence, in its articles 2 (non-discrimination), 3 (women's right to dignity), 4 (women's right to life, integrity and security of the person), 5 (elimination of harmful practices) and 14 (right to reproductive health), the African Women's Protocol contains general provisions that give rise to the state's obligation to prohibit child marriage. Significantly, article 6 of the African Women's Protocol (dealing with marriage) specifically requires states to guarantee that marriages only take place with the free and full consent of both parties and that the minimum age of marriage for women is 18 years. Clearly, states are under both continental and global obligations to prohibit child marriage and protect the girl child from early marriage and its attendant consequences. The question is: how have African states fared in this regard?

TRANSLATING INTERNATIONAL OBLIGATIONS INTO EFFECTIVE DOMESTIC PROTECTION: ARE CONSTITUTIONAL PRINCIPLES A NUISANCE?

Viewed against Henry Shue's tripartite typology of human rights obligations,Footnote ¹⁵ treaty provisions requiring domestic action by state parties give rise to three layers of duty: to respect, protect and fulfil the rights of the girl child. Whereas the duty to respect requires state parties to refrain from interfering with the rights of the girl child, the duty to fulfil invites governments’ positive action in aid of child victims. Both these layers of state duty generally affect matters within the immediate control of the state party: decisions and conduct of its officials. By contrast, the duty to protect obligates state parties to prevent third parties (other tiers of government and / or non-state actors) from infringing the protected rights of the girl child. It is in relation to this duty to protect that federalism complicates compliance.

Although it takes on different meanings, at a very basic level of understanding, federalism is a political arrangement under which governance and governmental powers are constitutionally divided between tiers of government, commonly between a central government and regional governments. Generally employed as a constitutional mechanism for integrating distinct and autonomous groups into a modern state,Footnote ¹⁶ federalism creates a composite external political structure but does not destroy the pre-existing multiple political units, allowing them to continue to exist internally while retaining some or much of their autonomous identity.Footnote ¹⁷ Notwithstanding scholarly differences regarding the core principles of federalism, two main characteristics of federalism are relevant to the present discourse. These are the idea of respect for the constitutional division of governmental powers and the right of federating units to retain aspects of their identity, including customary and religious norms that have survived over time. Safeguarded by constitutional entrenchment, neither the division of governmental powers nor pluralism (social and legal) can arbitrarily be changed by any tier of government in these states. Thus, the federating units can (and do) stake their claim to limited internal independence that translates not only to the exercise of legislative competence over predetermined or residual matters but also to allowing the application of particular systems of law associated with given communities. An overview of some federal constitutions in Africa serves to establish this point.

In addition to claiming a federal character in its nomenclature (article 1), the 1995 Constitution of Ethiopia establishes Ethiopia's federalism in its articles 46, 50, 51 and 52. Significantly, article 50(8) of the Ethiopian Constitution, which affirms that central (federal) and regional (state) powers are as defined in the constitution, also commits each tier of government to respect the powers of the other tier(s).Footnote ¹⁸ Thus, each tier of the Ethiopian federation can only validly exercise competence over the issues assigned to it in the constitution. Further, although the Ethiopian Constitution does not appear to state expressly the recognized sources of law in that legal system, article 34(5) read together with article 78(5) affirms the current efficacy of religious and customary laws of the peoples, as originally developed in the federating units.Footnote ¹⁹ These provisions can only be amended in accordance with the constitutional amendment procedure set out in article 104.

Albeit not in exactly the same formulation, shared governmental competence and legal pluralism equally feature in the federal constitutions of Nigeria (1999), Somalia (Provisional Constitution of 2012), South Sudan (Transitional Constitution of 2011) and Sudan (2005). While section 2 of the Nigerian Constitution proclaims Nigeria's status as a federation, section 4(1), (3), (6) and (7) divides legislative (and therefore governance) competence between the centre and the sub-national states on the basis of the exclusive and concurrent lists contained in the constitution.Footnote ²⁰ For Somalia, article 48 of its constitution sets out the federal status while article 51(2) insists that “every government shall respect and protect the limits of its powers and the powers of other governments”.Footnote ²¹ Articles 2 and 3 of the Somali Constitution leave no doubt that Somalia is an Islamic state and Shari'ah law takes precedence over secular law, since “no law can be enacted that is not compliant with the general principles and objectives of Shari'ah”.Footnote ²² The Transitional Constitution of South Sudan (arguably modelled on the Constitution of Sudan) declares the federal status of South Sudan in its article 47. However, it is article 48(2)(b) that obligates the national government to “respect the powers devolved to the states and local governments”, while article 49(1) enjoins all levels of government to “respect each other's powers and competences” and “exercise their powers so as: not to encroach on or assume powers or functions conferred upon any other level except as provided for in this Constitution”.Footnote ²³

In effect, all these federal constitutions affirm the inviolability of the principle of the constitutional division of governmental competence.Footnote ²⁴ In each federal state, notwithstanding the international treaty obligations assumed by central authorities, so far as translation into the national legal system is concerned, central action would ordinarily be possible only if the constitution allocates the issues involved to the centre, similar to Tushnet's “restriction on subject-matter scope of congressional power”.Footnote ²⁵ To complicate matters further, even in the face of actual constitutional competence in favour of central authorities, insofar as the constitution supports plural systems of law, it remains unclear whether centrally enacted secular laws trump religious and / or customary laws. Further, though to a lesser degree, Tushnet's second dimension of the dilemma arises to the extent that these constitutions generally do not empower central authorities to employ or “commandeer” the services of sub-national officials for the purpose of implementing international obligations. The Vienna Convention on the Law of Treaties (VCLT) no doubt applies, because states cannot rely on national constitutional or other legal difficulties as an excuse to avoid or escape international obligations.Footnote ²⁶ However, this only means that the state will continually be held accountable before international mechanisms and be made to pay compensation without necessarily advancing the protection of rights, in this case the rights of the girl child. In other words, effective protection of international human rights within these states depends on how much room central authorities have to navigate successfully those obstacles thrown up by federalism. Hence, it needs to be considered whether the regulation of child marriage is a matter within the competence of central governments in Africa's federal states.

Article 51(8) of the Ethiopian Constitution gives the central (federal) government exclusive power to “formulate and implement foreign policy” and to “negotiate and ratify international agreements”. The other 20 or so powers or functions that the constitution allocates to Ethiopia's central government speak neither to treaty implementation nor responsibility for the protection of human rights, even though article 55(12) grants the central legislature power to “ratify international agreements concluded by the Executive”.Footnote ²⁷ However, article 51(1) of the Ethiopian Constitution confers on the central government power to “protect and defend the Constitution”, which contains a bill of rights.Footnote ²⁸ In the Nigerian context, the second schedule to the Nigerian Constitution distributes legislative powers, so that 66 items are left exclusively to the central (federal government), 11 items fall within the concurrent jurisdiction of both tiers while all other matters not listed are reserved to the sub-national states. Matters in the exclusive list that are relevant for the present discourse include “diplomatic, consular and trade representation”,Footnote ²⁹ “external affairs”Footnote ³⁰ and the “implementation of treaties relating to matters on this list”.Footnote ³¹ Also included is “the formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto”.Footnote ³² It is also significant to note section 12 of the Nigerian Constitution titled “implementation of treaties”, which requires treaties to be enacted into national law in order to have the force of law within the Nigerian legal system. Significantly, section 12(2) empowers the National Assembly (central legislature) to make laws “for the Federation or any part thereof with respect to matters not included in the Exclusive List for the purpose of implementing a treaty”. Thus, whereas the Nigerian Constitution does not give legislative competence over human rights (some of which are contained in the bill of rights) to the central authority, section 12(2) arguably grants special legislative competence to the central (federal) government insofar as treaty implementation is concerned.

Although the constitutional process in Somalia is still on-going and legislative powers are yet to be conclusively divided among the tiers of government, article 54 of the Provisional Constitution of Somalia assigns power over “foreign affairs” exclusively to the central government. Similarly, schedule A of the Transitional Constitution of South Sudan reserves power over “foreign affairs and international representation” as well as “international, regional and bilateral treaties and conventions” to the national government. The other 55 items listed do not touch on human rights or the implementation of treaties. Significantly, schedule B gives South Sudan's sub-national states power over matters such as “regulation of religious matters”, “registration of marriage, divorce, inheritance, birth, death, adoption and affiliations”, “enforcement of national and state laws”, “traditional authority and customary law” and “customary law courts”.Footnote ³³

In other words, treaty negotiation and ratification are matters constitutionally within the mandate of central authorities, yet the constitutions are silent on the implementation of treaties.Footnote ³⁴ Further, human rights generally do not fall within the exclusive competence of any central government, but each of the constitutions examined contains a bill of rights that protects listed rights. In the context of respect for the principle of the constitutional division of powers, this implies that central authorities that sign up to human rights treaties are not always empowered to implement those standards within entire national legal systems. Thus, federalism triggers tension between respect for international obligations and fidelity to the national constitution. The inclusion of bills of rights in the constitutions may be a significant tempering mechanism, to the extent that central governments generally have the mandate to protect and implement the constitutions. However, so far as child marriage is concerned, sub-national competence over marriage as a subject-matter, especially in relation to marriages concluded under religious or customary laws, throws open the question whether central (federal) competence to protect the constitution and the bill of rights trumps the constitutional recognition of religious and customary law systems or sub-national competence to regulate marriages. Thus, in the federal states considered in this article, federalism and its core principles complicate state compliance with obligations under international law. However, this is not peculiar to African states, but is a universal challenge for federal states as experience in Australia, Canada and the United States shows.

Confronted with constitutions that entrench federalism and allocate treaty-making powers to central authorities without addressing treaty-implementing powers, older and more established federal states have also faced the dilemma that federal states in Africa currently face. As the evidence from these countries shows, even with the benefit of judicial intervention, the dilemma introduced by federalism does not easily disappear. In the 1920s, the dilemma played out in the United States, providing both judicial and scholarly evidence of the existing tension. In the case of Missouri v Holland,Footnote ³⁵ the US Supreme Court was confronted with this dilemma in relation to the US Migratory Bird Treaty Act 1918, enacted by US Congress to implement a treaty between the United States and Great Britain for the protection of species of migratory birds. Following the decision of a state Attorney General to test the act's validity by violating it and his subsequent arrest and prosecution, the state of Missouri brought a challenge to ask whether Congress has the power to enact a statute to give effect to a treaty entered into under the Executive's treaty power, if that statute standing alone would be an unconstitutional interference with states’ rights under the Tenth Amendment.Footnote ³⁶ Notwithstanding the decisions of US courts, it is significant to note that the limit of federal legislative powers vis-à-vis the legislative competence of states has remained a sticking point. This is further buttressed by the assertion that some statutes (or parts of statutes), such as the Gun-Free School Zones Act 1994, the civil liabilities aspects of the Violence Against Women Act 1994 and the Religious Freedom Restoration Act 1993 (all national laws enacted to implement US treaty obligations), have been invalidated to uphold state legislative competence.Footnote ³⁷

Arguably, the invalidation of national statutes by US courts is an indication of the judicial angle to the existing tension between fidelity to federalism and respect for treaty-imposed international state obligations. Scholars have also contributed to the debate on this subject. For instance, in analysing US Congress's enactment of an act that makes female genital mutilation (FGM) a federal crime, White points out that “no one has been charged under the statute, but if and when someone is convicted of FGM, he or she will undoubtedly challenge the constitutionality of the federal statute”.Footnote ³⁸ Further showing the divisiveness and complications of the debate, White goes on to analyse whether the private nature of FGM is the reason why the federal statute prohibiting FGM is lame, since the regulation of private conduct falls within the regulatory competence of states.Footnote ³⁹ In White's opinion, “because FGM occurs in the context of the home and family, it generally should be considered within the states’ province along with most domestic relations and child abuse laws”.Footnote ⁴⁰ Similarly, Paust shows how the US Supreme Court had to decide whether Congress was constitutionally competent to enact the Violence Against Women Act to implement CEDAW. In his analysis, Paust also describes concerns of the US Senate Foreign Relations Committee that CEDAW “requires broad regulation of private conduct”, stating that the United States will not “take action with respect to private conduct except as mandated by the Constitution”.Footnote ⁴¹ While Tushnet and Paust see reasons why US Congress should be considered to have treaty implementing powers, scholars like White and BradleyFootnote ⁴² do not. In the United States, federalism obviously interferes with the commitment to international human rights treaty obligations.

The conflict between fidelity to a federal constitution and respect for international law became a full blown controversy in the Canadian constitutional field as far back as 1937 when the Canadian case of Attorney General for Canada v Attorney General for Ontario and Others (Labour Conventions case)Footnote ⁴³ was heard by the United Kingdom's Judicial Committee of the Privy Council. As commentators point out, Canada's Constitution Act of 1867 fails to assign power to conduct international affairs expressly to any tier of government. Hence, while Canada's federal government enjoys “sole authority to negotiate, sign and ratify international treaties”, it cannot claim comparable authority to implement treaty obligations, since “many treaties … deal with matters that fall under provincial jurisdiction”.Footnote ⁴⁴ This set the stage for the Labour Convention cases when in 1935 Canada ratified three International Labour Organization conventions. Following ratification, the Canadian federal Parliament enacted three national implementing laws to give domestic effect to the conventions. Led by Ontario, Canada's provinces challenged the constitutionality of the implementing laws on the grounds that labour issues that formed the subject matter of both the conventions and the implementing laws were matters that were constitutionally within the legislative jurisdiction of the provinces and therefore outside the competence of the federal authorities.

At the Supreme Court of Canada, the judges were divided as to whether the implementing laws were ultra vires or intra vires the Parliament of Canada.Footnote ⁴⁵ Sitting on appeal over the decision of the Supreme Court of Canada, the Judicial Committee of the Privy CouncilFootnote ⁴⁶ unanimously took the view that the implementing laws were unconstitutional because they were outside the legislative jurisdiction of the Canadian Federal Parliament. Rejecting arguments that constitutional provisions (section 132) that authorized legislation necessary for “performing the obligations of Canada or any of the Province [sic] thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries” could sustain encompassing legislative action by the Canadian Parliament, the Law Lords ruled that there was no constitutional ground for stretching the competence of the federal Parliament.Footnote ⁴⁷ The Privy Council rather took the view that:  

Strom and Finkle claim that the Labour Conventions case defines Canadian law on treaty implementation.Footnote ⁴⁹ Thus, Canada's federalism ensures that federal authorities can enter into treaties and may incur international responsibility for non-compliance, but respect for provincial legislative authority cannot be tampered with.

Similar to the position in Canada, the Constitution of Australia has no provision allocating treaty implementing powers to any tier of government and actually does little more than grant competence to the federal government over external affairs.Footnote ⁵⁰ As a consequence, disputes regarding federal competence to enact treaty implementing laws even in areas within the legislative competence of the sub-national states have also come before the Australian courts.Footnote ⁵¹ For instance, in the Australian case of R v Burgess: Ex parte Henry,Footnote ⁵² the question was whether the central Parliament was constitutionally competent to enact legislation to implement the Air Navigation Convention ratified by Australia. In their analysis of that decision, Strom and Finkle concluded that “the Australian Supreme Court … was reluctant to permit the Commonwealth government to assume unlimited powers over implementation legislation merely because it had entered into an international agreement”.Footnote ⁵³ Opeskin and Rothwell give a slightly different analysis of that case, stating that “the Court was unanimous in upholding the Commonwealth's power to implement the Convention by appropriate legislation”, even though it struck down the regulations on other grounds.Footnote ⁵⁴ However, Opeskin and Rothwell drew attention to the position adopted by some of the judges to the effect that the federal Parliament can only exercise legislative competence when the subject matter is of international concern. This is considered necessary “in order to prevent a gradual accretion of power by [sic] federal Parliament, which might in time destroy the traditional division of powers between the states and the centre”.Footnote ⁵⁵ Thus, even in Australia, federalism interferes with the state's implementation of international obligations.

Judicial concern with the need to protect the federal principle in Australia is further demonstrated by dicta in other cases in which the federal Parliament sought to make federal law to implement treaty obligations. For instance in the 1982 case of Koowarta v Bjelke-Petersen,Footnote ⁵⁶ which deals squarely with human rights, the Australian State of Queensland challenged the constitutionality of Australia's Racial Discrimination Act 1975, which the Commonwealth (federal) government had enacted to implement the International Covenant on the Elimination of Racial Discrimination. Significantly, the High Court of Australia was split on the question of the consequence of federalism vis-à-vis the federal legislative power under section 51 of the covenant, dealing with external affairs. Although three of the judges upheld the legislation on the grounds that the Commonwealth Parliament can give legislative effect to any international agreement entered into bona fide by the Commonwealth, whatever its content, and in doing so may override state law,Footnote ⁵⁷ Howard's analysis is that “these three judges were particularly concerned to set a rational limit to Commonwealth legislative power under section 51(29) having regard to the federal nature of the Constitution”.Footnote ⁵⁸ Whatever the decision of the court, the important point for our present discourse is that, here again, in relation to the domestic implementation of the federal state's international human rights obligations, federalism emerges as a point of controversy.

A third Australian example, relevant not just as evidence of the nuisance tendency of federalism but also of the possible tension that may result in human rights matters, is the fallout from the Human Rights Committee (HRC) decision in Toonen v Australia.Footnote ⁵⁹ Following the HRC's decision that the State of Tasmania's law criminalizing homosexuality violated Australia's obligations under the ICCPR, a dispute arose between the Commonwealth of Australia and the State of Tasmania over the issue of compliance. Apparently, the Attorney General of Tasmania took the view that “the relevant Tasmanian legislation ‘will be retained and the UN decision ignored’ and that, if the Commonwealth attempted to override the Tasmanian legislation by relying on the external affairs power, Tasmania would consider a High Court challenge”.Footnote ⁶⁰ It is reported that the Attorney General of the Commonwealth (of Australia) responded that “states were expected to conform with international standards” and “if they failed to cooperate, the Commonwealth would be forced to intervene”.Footnote ⁶¹ In other words, even if the federal authorities wanted to implement international human rights obligations, federalism would stand in the way. Thus, Africa's federal states are not alone in the dilemma that federalism brings for the implementation of international human rights in national legal systems. However, it has to be possible simultaneously to respect the allocation of governmental powers under a federal constitution and states’ obligations under international human rights law. The next section examines how states have done or tried to do this and how it can or should be done better.

TACKLING THE DILEMMA OF FEDERALISM: STRATEGIES FOR EFFECTIVE DOMESTIC PROTECTION OF THE GIRL CHILD

Since federalism complicates domestic compliance with international human rights obligations to protect children from early marriage, what strategies have been employed to meet this challenge? Two main approaches are identifiable in the states considered.Footnote ⁶² This article examines these two approaches in the light of more general comparative experiences. The first approach is that employed in the Nigerian legal system, while the second finds expression especially in the constitutional framing practices of Ethiopia.Footnote ⁶³

In the classical dualist manner, treaties neither form part of Nigerian law nor are directly applicable in the Nigerian legal system. Further, although the Nigerian Constitution contains a bill of rights,Footnote ⁶⁴ it does not necessarily capture the range of rights guaranteed in the human rights treaties ratified by the country. Rather, as a consequence of section 12 of the constitution, which requires implementing national legislation for treaties to have direct force of law in Nigeria, human rights treaties have to be enacted as national law to have direct domestic legal effect.Footnote ⁶⁵ Accordingly, in 2003 the Nigerian government promulgated the Child Rights Act of Nigeria (CRAN) to give municipal force of law to treaties that the state has ratified for the protection of children's rights.Footnote ⁶⁶ Enacted as a federal law by the Nigerian National Assembly and signed into law by the president, CRAN brings to life section 12(2) of the Nigerian Constitution, which empowers the National Assembly to enact treaty-implementing legislation, even over matters not included in the Exclusive Legislative List. Thus, in an apparent exception to the federalist principles of the Nigerian Constitution, the central government can regulate matters outside its normal legislative competence, thereby constitutionally borrowing sub-national-state legislative power for the sake of treaty implementation. Sections 21, 22 and 23 of CRAN address the subject of child betrothal and child marriage, prohibiting these practices and voiding marriages contracted by persons under 18 years.Footnote ⁶⁷ Section 23 goes further to criminalize these practices, attaching either a fine or a term of imprisonment for the violation of these provisions. Federal legislation is, therefore, the vehicle for treaty implementation within the national legal system.

Enjoying constitutional foundation and legitimacy, CRAN arguably escapes challenge to its constitutionality. However, it still provokes what Tushnet identified as the second dimension to the federalism challenge: overcoming the restriction on federal methods of implementation.Footnote ⁶⁸ Since central and sub-national states share authority over the same body of citizens and those citizens reside within the territories of the sub-national states, CRAN takes the very practical step of sharing implementation responsibilities among all three tiers of government in Nigeria. For instance, CRAN provides for (sub-national) state governments to have the duty to investigate violations of the act,Footnote ⁶⁹ provide for the welfare of certain childrenFootnote ⁷⁰ and provide accommodation for a certain class of children.Footnote ⁷¹ In addition to establishing state child rights implementation committees,Footnote ⁷² CRAN also empowers the relevant minister, in appropriate cases, to declare a state government to be in default of certain obligations.Footnote ⁷³ In other words, the effectiveness of the prohibition of child marriage in CRAN depends largely on enforcement by sub-national states and their officials. This raises the question whether section 12(2) of the Nigerian Constitution also gives the federal authorities competence to assign responsibilities to sub-national states and to “commandeer” sub-national officials for the enforcement of federal laws.Footnote ⁷⁴ Perhaps these questions inform the common but contestable perception that sub-national states need to enact their own similar legislation (or “domesticate” [sic] CRAN) before it can become applicable within the territories of the sub-national states.Footnote ⁷⁵ Such arguments apparently challenge the competence of the central legislature on the basis of federalism: the first dimension, which should have been partly settled by section 12(2) instead of questioning the method of enforcement that does not appear to be addressed in section 12(2). The Nigerian approach thus successfully empowers central authorities to work around the federal principle by authorizing implementing federal legislation, yet leaves open the challenge of methods to ensure federation-wide implementation of the centrally enacted legislation.

In contrast to the Nigerian approach, Ethiopia applies constitutional framing to deal with the dilemma of federalism. According to article 9(4) of the Ethiopian Constitution, international treaties ratified by the state are an integral part of the law of the land. Read together with articles 3(1) and 6(1)(a) of Ethiopia's Federal Courts Proclamation,Footnote ⁷⁶ treaties such as the African Children's CharterFootnote ⁷⁷ and CEDAWFootnote ⁷⁸ are directly applicable before federal courts in Ethiopia. As such, provisions in these treaties that protect children from child marriage are enforceable before the federal courts.Footnote ⁷⁹ Further, article 34 of the Ethiopian Constitution (dealing with marital, personal and family rights) also speaks to the issue of child marriage. Whereas article 34(1) insists that the right to marry and found a family is available to men and women “who have attained marriageable age as defined by law”, sub-article (2) provides that “marriage shall be entered into only with the free and full consent of the intending spouses”.Footnote ⁸⁰ With these constitutional provisions in place, even though Ethiopia does not have a separate child rights law, it still meets its obligation to protect children from child marriage within the national legal system. Formulated as constitutional provisions, these treaty obligations bind all tiers and officials of government without any need for legislative action, which, in any case, could be challenged for violating the principles of federalism.

A number of practical questions can be raised in relation to this regime, but those questions can also be answered by reading the constitution together with other general laws. First, article 34(4) and (5) of the Ethiopian Constitution appears to remove the protection in the preceding provisions, since these latter provisions recognize marriages “concluded under systems of religious or customary laws”. Article 34(5) further provides that the “Constitution shall not preclude … adjudication of disputes … in accordance with religious and customary laws”. Secondly, the term “marriageable age” is not defined in the constitution. In relation to the apparent contradictions in article 34(4) and (5) of the Ethiopian Constitution, federalism complicates the situation further, to the extent that residual powers over religious and customary matters remain with the sub-national states, even though power to establish or give recognition to religious and customary courts is shared by federal and state legislative organs.Footnote ⁸¹ However, this complication is resolved by articles 26(2) and 27(2) of the revised Family Code of Ethiopia (a federal law), which requires marriages concluded under religious or customary laws to meet “essential conditions of marriage” set out in the code.Footnote ⁸² With regards to the “marriage age”, a combined reading of the revised Family Code of Ethiopia and the Ethiopian Criminal Code pegs the age at 18 years.Footnote ⁸³ Thus, while the actual prohibition of child marriage enjoys constitutional flavour by inclusion in the constitution, Ethiopia turns to federal legislation to deal with some identifiable gaps. This not only insulates the prohibition of child marriage (and other human rights guarantees) from a challenge of constitutionality on the basis of the violation of the principles of federalism, but also imposes an implementation obligation on all governmental actors, even if primary responsibility for protecting and defending the constitution rests on the federal government.Footnote ⁸⁴ However, considering that the revised Family Code and the Criminal Code are both federal laws, it remains debatable whether the “essential conditions of marriage” and the definition of the “marriageable age” are binding on the sub-national states. Nevertheless, reports of the practice of child marriage in rural Ethiopia have remained as troubling as reports of the continuing practice in parts of northern Nigeria. In other words, despite the differing modes employed by these two states, the scourge of child marriage continues to defy central control in both states.

The other three states considered in this article generally adopt either one or a mixture of these two approaches to protect children from child marriage: inclusion of the prohibition of child marriage in the constitutional bill of rights and / or the enactment of a federal law to prohibit the practice. South Sudan is representative of this category. Article 15 of the South Sudanese Constitution (the right to found a family) provides that “every person of marriageable age” has a right to marry and “no marriage shall be entered into without the free and full consent of the man and woman”. Similar to the position in Ethiopia, South Sudan's constitutional guarantee arguably imports the formulation in the UDHR. In addition to this constitutional protection, South Sudan also has federal legislation, the Child Act of 2008, guaranteeing protection from early marriage and other harmful customs or traditional practices.Footnote ⁸⁵ Section 36 of the act obligates all levels of South Sudanese government to “recognize, respect and ensure” the rights protected in it.

Despite the different approaches identified in this article, child marriage remains a troubling violation in the countries considered. While it is possible to explain this as a challenge common to all states, federal and non-federal alike, inadequate regulation and prosecution in non-federal states can be attributed more to a lack of will than to the complications of the political system. Thus, it remains desirable to explore means by which the challenges of federalism can be better met. In that regard, experiences and suggestions from outside Africa, even in the general field of international law, might be useful considerations for enhancing the strategies already developed in Africa. One strategy employed by Canada is to engage in prior sensitization and consultation before ratification of an international treaty. By engaging in nation-wide consultation and procuring the agreement of sub-national governments before ratification, the state ensures cooperative implementing action post-ratification.Footnote ⁸⁶ Although in the African context it cannot be discountenanced that this could delay ratification or even result in non-ratification, it need not be the case insofar as such consultation is not stipulated as a constitutional or statutory requirement for ratification.

In relation to the dilemma of methods of implementation, the idea of direct implementation by federal authorities has been mooted in the United States. For instance, Doherty shows that, reacting to inadequate sub-national prosecution resulting in the US violation of treaty obligations, President Harrison invited US Congress to pass a law permitting federal prosecution in similar situations.Footnote ⁸⁷ In both approaches identified in this article, the legislative framework prohibiting and criminalizing child marriage already exists. Thus, in order to tackle non-enforcement by sub-national states, enforcement by federal officials in federal courts can be a viable option, not only for ensuring immediate implementation but also for nudging sub-national states towards assuming enforcement roles in the long run. Faced with the prospect of federal prosecution of their citizens, sub-national states may be forced to act similarly to the manner in which complementarity in international criminal law, particularly in the Statute of the International Criminal Court, can force states to take prosecutorial action. Such direct federal enforcement could, however, be carried out on the basis of the principle of subsidiarity. As Taylor explains in relation to German constitutional practice, in matters not falling within its exclusive competence, the German federal government operates on the principle of subsidiarity, only taking action if federal action can be more effective than action taken at the regional or local level.Footnote ⁸⁸ In the context of enforcing the prohibition of child marriage, action at the federal level would then only be taken when states fail to implement and enforce applicable laws. With regard to the conflict between secular law and religious and / or customary law, a leaf could be borrowed from Indian practice that, through judicial pronouncement, subjects all forms of personal law to the operation of statutory law prohibiting child marriage.Footnote ⁸⁹ Applied together with existing approaches, these strategies have the strong potential to strengthen children's protection from child marriage.