By Fatmata Sorie
I do not believe there is any activist in Sierra Leone who did not consider the Public Emergency on rape and sexual penetration a laudable venture. This singular act has seen the passing of the Sexual Offences Amendment Act of 2019 which now sets a minimum of five years for rape and sexual penetration and a maximum of life imprisonment depending on the age of the perpetrator and aggravating factors that our Judges would consider before sentencing.
I applaud the Government for the bold step it has taken in protecting the rights of women and girls and curbing this menace, which is not without apprehension. One major apprehension is the lack of coherence/consistency in our laws. Our laws give you one thing with one hand but use the other hand to deprive you of what you have been “rightfully” given.
Under our laws, a child is defined as any person under the age of 18. It is also law that a child cannot give consent in certain circumstances such as sexual penetration and marriage. A child can also never engage in consensual sexual intercourse with any person under the Sexual Offences Act 2012. However, while these laws protect and promote the rights of children regardless of their sex, the Registration of Customary Marriage and Divorce Act 2007 provides in section 2 as follows:
(1) Subject to this Act, a customary marriage, contracted after the coming into operation of this Act, shall be valid only if –
(a) both spouses are not less than eighteen years old and consent to the marriage; and
(b) the marriage is contracted in accordance with the customary law applicable to any of the spouses.
(2) Where, either of the prospective spouses, not being a widow or widower, is less than eighteen years, it shall be necessary for the parents to give consent to the marriage and if the parents are dead or unable for any reason to give such consent, then the consent may be given by the guardians of the prospective spouse or spouses to the marriage, as the case may be.
(3) If the consent of the parents or guardians cannot be obtained or is unreasonably withheld, a Magistrate or Local Government Chief Administrator of the locality in which the marriage is to take place may give his consent.
This Act by its title applies only to children who find themselves governed by custom and tradition. Under this Act, while a child (under the age of 18) cannot enter into customary marriage, provision is made for the Parents, or Guardian or the Magistrate or Local Government Chief Administrator of the locality to consent to such marriage.
Clearly the consent of a child is not required nor considered; they have no choice and of course no opinion in the matter. The questions are therefore: Why make and maintain laws that apply to one group of people but not to the other? Why make laws that contradict each other?
While tradition does not trump the law, the fact that our lawmakers in their wisdom decided to pass or promulgate a law legitimizing a custom and tradition deemed harmful to our children and in conflict with other laws, is most troubling and worrisome.
However, based on my most recent interactions with our Parliamentarians it became glaring to me that public engagement and involvement in the law making process averts the mistakes of the past and ensures that our Parliamentarians are guided during the tabling and debating of new laws. It is my firm belief that if this approach should be maintained we shall see fewer or no new law in conflict with the existing laws. It was also apparent that our Parliamentarians need a legal and research department to assist them when bills, agreements or documents are tabled before them. This will ensure that our laws remain uniform and in conformity with international instruments.
Now back to the subject at hand; we have never tested the offence of “marital rape” in our jurisdiction – YES, marital rape – at least not to my knowledge. But law does provide that marriage is no defense to rape. Yes, marital rape is indeed a crime. Taking into consideration the provisions in the Registration of Customary Marriage and Divorce Act supra and the provision that marriage is no defense to rape under the sexual offences act and the date of the said acts, are our children truly protected under the law? While I would love to see the end of child marriage in Sierra Leone through law reform or amendment; I would also relish the day our legal jurisprudence is put to the test on issues of this nature that will expose the inconsistencies in our law.
While at it, let us also consider the effect of continuing to legitimize early or child marriage; its effect on our health systems (maternal and infant mortality and fistula), our social service systems, educational systems, our family structures, etc.
These practices that have been legalized will continue to compound poverty in our Society. As such, if we are really committed to promoting and protecting the rights of our Girls; we must abolish the law that deprives them of their childhood by prematurely sending them to adulthood and exposing them to the many ills that our girls currently face. The statistics on infant and maternal mortality do not lie; we might be in denial but it is a big reason why our girls do not reach their fullest potential in society. So while we cry about the malaise in our system let us not forget to work towards massive female empowerment.
Every child should be accorded equal opportunity to achieve their fullest potential, no child should contribute to the statistics of sexual penetration and maternal mortality. End early child marriage now! There is a draft bill floating – speak with your MP and your Government to make this happen.
Fatmata Sorie is President of the all-female lawyers group known as L.A.W.Y.E.R.S.
© 2019 Politico Online
