Forced and Servile Marriage, and its links with the international crime of human trafficking

Sharia law was introduced into the Nigerian State of Zamfara, in 2000. In a report by the World Watch Monitor[1] dated 23 July 2013, it was revealed that the Nigerian Constitution Review Committee drew up amendments which sought to update the country’s 1999 Constitution by stopping the removal of a clause from Nigeria’s Constitution during Nigerian Senate’s debate on Tuesday 16 July 2013. Critics say this means that a loophole remains through which marriage of under-age girls remains possible under sharia law, ensured by the works of Senator Ahmad Sani Yerima, a controversial Muslim figure, who insisted that under Islamic tenets, a woman is of age once married, and to counter that order would be discriminatory and in violation of another section of the Constitution.

The Senator’s procedural success has been attacked not only for the manner in which it happened, but also because in 2009 he himself married a 13-year-old Egyptian girl in the Nigerian capital, as his 4th wife, causing widespread outrage. He had also previously married another 13-year-old, and divorced one wife before she was 18. He was investigated for having violated Nigeria’s Child Rights Act of 2003, which deems “a child is anyone below the age of 18”. The investigation was later dropped. He maintained that he had not violated sharia, stating: “History tells us that the Prophet did marry a young girl as well”.

Many advocates have condemned the recent laws, stating that this “will allow children, under-aged, to be sexually abused, and it’s going to cause a lot of social vices in the country”[2], and  “This action is a clear violation of Article 21(2) of the African Charter on the Rights and Welfare of the Child which prohibits child marriage and betrothal as well as Article 6 (b) of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa which [ensures] that the minimum age of marriage for women is 18 years”[3].

Abiola Afolabi-Akiode, Coordinator of the Gender and Constitution Reform Network, (GECORN), described the resolution as a big setback for the Nigerian people, not only women, stating; “The Constitution is supreme, so the Child’s Rights Acts falls under the Constitution. So, what the man has done is to …. legalise the abuse of children in the country”.

Human rights activists have also been quick to respond.

Christians living in ‘sharia’ states fear that if the Constitution retains a loophole for recognition of under-age marriage, Christian girls abducted for forced marriages will have less protection.

In Australia, there have been a number of cases that raise concerns about children being removed from Australia for forced marriage. Research revealed that marriage and partner migration have been used to facilitate the trafficking of people into Australia in a small number of cases, with  marriage being used as a method of recruiting or receiving women into Australia by means of deceiving the women about the nature of the marriage for the purpose of exploitation as domestic servants and wives.

This issue was brought into the spotlight in September 2011 when it emerged that a 16-year-old girl had been placed on an airport watchlist after going to court to prevent her parents sending her to Lebanon for an arranged marriage. The Federal Magistrates Court ruled that the parents of the teenager could not remove or attempt to remove their daughter from the country to marry the young man she had met only once. In his judgement, Magistrate Joe Harman ordered the parents not to assault, threaten or intimidate the girl, saying the type of complaint she lodged was becoming increasingly common. [4]

Until this year, there was no specific law against forced marriages that could be used to prosecute offenders in court.

In the United Kingdom, it is estimated that there are 300 cases of forced marriage each year, of which 30 percent are children under 18 years of age and 15 percent are male.

In February 2013, amendments were made to the Criminal Code 1995 under the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 that broaden the definition of people trafficking, and introduce a spectrum of slavery and related offences in order to ‘ensure that the broadest range of exploitative behaviour is captured and criminalised’.

In 2011, Minister for the Status of Women Kate Ellis said the draft legislation was part of the country’s response to combat people-trafficking and slavery. “Every person has a right to choose whether to marry and who to marry,” she said. In 2011, it was envisaged that  the offences of the Bill would  reinforce that a marriage must be entered into with the full and free consent of both parties, and that forcing someone into marriage is an abuse of human rights. Offenders,  including the other party to the marriage or the victim’s parents, could face up to seven years’ jail in aggravated cases and four years’ jail in other cases.[5]

The amendments to the Bill introduced in 2013 included new offences around forced marriage and amended the existing definitions to capture servile marriage as a condition similar to slavery. Servile marriage involves a person being sold, transferred or inherited into marriage.

Under s 270.7A(1) of the Bill, a forced marriage is defined as a marriage that is not freely and fully consented to because of the use of coercion, threat or deception. The new offences relate to adults as well as children who are forced into marriage by either the person they are marrying or another person, such as a parent. The amendments apply to marriages that occur in Australia, as well as to marriages that occur in another country that involve Australian citizens. There is a maximum penalty of seven years imprisonment for forcing a person into marriage.

Child victims fall within the definition of forced marriage, since children are, by definition, incapable of consent or of exercising the right of refusal. Child marriage is a violation of children’s rights under the United Nations Convention on the Rights of the Child and an abuse of human rights.

Home Affairs and Justice Minister Brendan O’Connor said in November 2011 that the draft legislation also sought to target people being trafficked into Australia to work, particularly in the sex industry. “Information provided by law enforcement agencies shows that increasing numbers of people are being trafficked into a variety of industries, not just the sex industry,” he said.[6]

Trafficking is a global crime, and a $48 billion per year industry, which seeks to exploit the most vulnerable of people from across the world. As is exemplified in Nigeria, trafficking, and the abuse of human rights can also take the form of ‘religion’.

We need to be vigilant to the dangers which can arise from such religious laws, and we should seek to protect those vulnerable to such abuses. We should also uphold our brothers and sisters living under such laws, and not forget them in prayer.

[1] http://www.worldwatchmonitor.org/2013/07/2619643/

[2] Rev. Austin Nnorom, the Lagos State Chairman of the Conference of Nigeria Political Parties (CNPP).

[3] The Nigerian Feminist Forum’s spokesperson, Gerdyn Ezeakile, in Lagos.

[4] Australian Federal Police: Article: Australia to make forced marriage illegal, Nov 22, 2011. http://www.google.com/hostednews/afp/article/ALeqM5htTQ_5Lv4A2FadHloS4lriw6eJ2g?docId=CNG.f5cbfbf496f27c6244f6de77674b3247.251

[5] Australian Federal Police: Article: Australia to make forced marriage illegal, Nov 22, 2011. http://www.google.com/hostednews/afp/article/ALeqM5htTQ_5Lv4A2FadHloS4lriw6eJ2g?docId=CNG.f5cbfbf496f27c6244f6de77674b3247.251

[6] News.com.au Article: Government to toughen forced marriage laws,  November 23, 2011. Read more: http://www.news.com.au/breaking-news/government-to-toughen-forced-marriage-laws/story-e6frfku0-1226203856370#ixzz2am3oPYc4

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