Forced child marriage under Cameroon law and The Fishermans Diary
Written by Barristers Agbor Regina Ebob, Jacob A. Akuo & Ferdinand Doh Galabe,
Founding Partners of Dayspring Law Firm
The persistence of the problem of child marriages in Cameroon was recently brought to the forefront by the inspiring and award winning drama film “The Fisherman’s Diary” in which young lead actress Ekah a.k.a, “Small Mami” (interpreted by the very talented Faith Fidel) is given to marriage by her father, Solomon (interpreted by the brilliant Cameroonian actor and film maker Kang Quintus), who is manipulated by his indebted brother to force his daughter into marriage in order to clear the latter’s debts.
Per the narrative of “The Fisherman’s Diary”, poor Ekah, gets forcefully married at the tender age of 12 without this shocking anyone in her village of fishermen where education is generally despised, and girl child education is considered a taboo. It is principally because young Ekah is impassioned by education and learning that Ekah’s uncle, with her father’s participation, sets her up for marriage in order to satisfy her father’s desperate purpose to stifle her daughter’s dreams of pursuing school education.
The Fisherman’s Diary is inspired by a true story which reflects realities extant in certain rural areas in Cameroon and around the world. It has raised interest on what the law provides concerning child marriage, genuine interests which the authors to attend to in this short write-up.
It must be said upfront that the Cameroonian lawmaker has taken notice of the problem of child marriages in Cameroon. This is evident by a reading of Section 52 (1) of Law no 2011/011 of May 6, 2011 amending and supplementing certain provisions of Ordinance no 81/02 of June 29, 1981 to organize civil status registration and various provisions relating to the status of persons, which provides that:
“No marriage may be celebrated if the girl is a minor of 15 years old or if the boy is a minor of 18 years old, unless for serious reasons a waiver has been granted by the President of the Republic.”
Needless to assert here that such a waiver has not been granted by a President of the Republic in the last thirty (30) years since this law was first enacted. That notwithstanding, it is evidently out-of-place that the Cameroonian lawmaker fixed 15 years as the age at which the girl child can go into marriage. This is not only very objectionable, but it actually encourages forced child marriages, something that was considered to be the very thing that the legislator sought out to combat.
It must be said, in passing, that Ordinance no 81/02 of June 29, 1981 was enacted as law during former President Ahmadou Ahidjo’s (1960 – 1982) tenure – he who was from a cultural background where child marriage was acceptable practice. It is possible that the then President’s cultural background influenced the provisions of the Civil Status Ordinance relating to the age of majority of the girl child for the purpose of marriage, although President Ahidjo himself married his wife Germaine Habiba Ahidjo at the age of thirty-two (32), when she was twenty-four (24) years old and had already graduated in the specialized field of tropical diseases after obtaining a scholarship to study in an institution of higher learning in France. No matter how much we attribute the 1981 ordinance to President Ahidjo, it is a fact that no changes have been made to the relevant provisions of the ordinance even when the legislator had opportunity with the 2011 amendment. Besides, there are three parliamentary sessions in Cameroon on a yearly basis. It is therefore not for want of opportunity that the law has not been changed since.
Concerning majority, the UN Convention on the Rights of the Child (the UNCRC for short) signed in New York on November 20, 1989 is an important agreement which carries with it the promise to protect children’s rights. Article 1 of the UNCRC provides that:
“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”
Cameroon signed the UNCRC on September 25, 1990 and ratified it on January 11, 1993. Eighteen (18) years later, the 1981 civil status registration ordinance was amended, unfortunately without any changes on the provisions relating to the age of majority of children, especially the girl child, for the purpose of marriage. If it can be argued that the Cameroonian lawmaker is compliant with international law, specifically, the UNCRC, it can also be retorted that the international community itself, through the UNCRC, has not done enough to protect the girl child with respect to child marriage. Two wrongs don’t make it right.
The innate discrimination in the ages of the girl child and the boy child in Cameroon’s Civil Status law is condemnable. While the girl child’s majority is only 15 years, the boy child’s majority is fixed at 18 years. Besides, 18 years is an age considered as majority in other lex specialis like the Penal Code which earmarks 18 as the age of full criminal responsibility. The age of electoral majority per Section 45 of Cameroon’s 2012 Electoral Code is twenty (20) years, while it is twenty-one (21) years for citizenship maturity per Section 4 of Cameroon’s 1968 Nationality Code as well as per Section 488 of the French Civil Code. This discrimination which is inconsistent with article 16 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international human rights treaties that predate this law shows how the disadvantages of a girl child is baked into the Cameroon legislation and legal system with the implicit complicity of international law.
That said, another part of the above mentioned Civil Status law which must be considered in order to understand the issues at stake here is Section 52(4) which states that, “no marriage may be celebrated if the spouses-to-be do not consent.”
In addition to capacity (age of majority/maturity), as provided above, consent is another ingredient of a valid marriage. Under Cameroon law, not only should spouses-to-be be of age (15/18), but they must also freely give their consent (agreement) to enter into the bonds of matrimony. Where any of these two elements is missing, the marriage is said to be null and void ab initio, and as such any interested party can file a petition for the nullity of the marriage. This should not be conflated with a petition for divorce, which is only resorted to in the case of a valid marriage which has broken down irretrievably.
Per Section 64 et seq. of the abovementioned Civil Status Law, the consent of the spouses-to-be must be given personally by them at the time of the celebration of the marriage. Section 64(2) adds that where a spouse-to-be is a minor, their consent must be supported by that of their father and mother (or guardian or customary authority, in the absence of parents) in order to be valid. One can never overstate that a provision of the law that gives parents the powers to consent to the marriage of minors is in and of itself utterly unacceptable. In addition to that, the legislator in extending the list of persons empowered to give such consent (in the absence of the parents) to include guardians and customary authorities demonstrates a lack of forethought to the egregious consequences of this atrocious practice.
Further, Section 65 (1) & (2) of the above mentioned law further provides that,
“Marriage shall not be celebrated if consent was obtained by force. Force shall be deemed to have been used where brutality or threats have been exercised on the person of the spouse to be, his father, mother, legal guardian, customary head or children in order to obtain the consent or refusal of such a spouse.”
There are several other legal grounds that can vitiate consent besides force (duress), brutality or threats, as provided in Section 65 above, inasmuch as marriage is considered under civil law as a contract, and as such whatever vitiates consent under contract law can potentially vitiate marital consent, e.g., compulsion, undue influence (by a person exercising authority over the child), incapacity, unconscionability (contrary to good conscience), etc.
That being said, the difficulty of ensuring the respect of the provisions of the above statute resides in the existence of customary (native) laws within the various ethnic communities in Cameroon and Africa in general, which are recognized by the law, provided they are not repugnant to the law itself, to natural justice, equity and good conscience. It goes without saying that a statute which legalizes child marriage with or without the consent of the parents, guardian or customary authority is by its very nature repugnant to natural justice, equity and good conscience.
Still, the above mentioned law recognizes customary or traditional marriages in their own right. Thus, marriages that are celebrated traditionally do not need to be celebrated anew before the competent mayor or civil status registrar in order to be valid. They are presumed to be valid once celebrated in the traditional manner, although per Section 4(1), they must be declared before the competent civil status registrar or mayor in order to be recognized by law as such; for the marriage to be registered in the registry of marriages; and for a marriage certificate to be issued to that effect. Unfortunately, in many cases, customary marriages are never declared for the purpose of legal recognition and public recording (registration), essentially undercutting the whole purpose of the law.
That said, it is worthy to note that forced child marriages are punishable under Section 356 of Cameroon’s Penal Code which provides as follows:
“(1) Whoever compels anyone to marry shall be punished with imprisonment for from 5 to 10 years, and fine of from FCFA 25,000 to FCFA 1 million.
(2) Where the victim is below 18 years, the punishment may not be less than 2 years imprisonment, whatever the mitigating circumstances.
(3) Whoever gives a boy or girl child under 18 years, shall be punished as under the two foregoing subsections.
(4) Upon conviction, the court may deprive the offender of parental power and disqualify him from being guardian or curator of any person for the time prescribed by Section 31(4) of the Penal Code.”
The Cameroon Penal Code equally contains provisions relating to participation in crime, such as co-offenders involving family members like parents or relatives, accessories who aid and abet the commission of the offense of forced (child) marriage, etc.
Finally, though one may overlook the incomplete nature of Cameroon law with a view to appreciate the efforts of the lawmaker to criminalize forced marriages, one must admit that such efforts are somewhat undercut by the fact that the establishment of criminal responsibility (beyond doubt) is extremely difficult when one combines the time-honoured customary practice of child marriage and Section 64(2) of Law no 2011/011 of May 6, 2011 which empowers parents, guardians, and customary authorities to consent to the marriage of minor children. A combination of these two factors can obscure a discernible criminal liability of the parents, guardians or administrative authority who may have forced minors into marriage.
In conclusion, Cameroon’s Ministry of Social Affairs, UNICEF, the Cameroon Bar Association, lawyers, courts of law, CSOs and activists are playing an important role to banish this phenomenon of child marriage from our midst. Although some degree of progress has been made over the years, the landmark film, “The Fisherman’s Diary”, produced by multiple award winning film maker and actor Kang Quintus and directed by Enah Johnscott, has put the discussion on child marriages back on the national agenda, which is exactly where it belongs.
You may also be interested in one of our articles: The Sentencing System under Cameroon Criminal Law
External resource: Ending child marriage