Posted: 2 January, 2025 Filed under: Akot Makur Chuot, Yeabsira Teferi | Tags: African Charter on Human and Peoples’ Rights (African Charter), basic human right, Child Act, child marriage, contraceptives, Convention on the Rights of the Child (CRC), customary courts, gender-based violence, girl-child, girl-child’s right to health, Harmful practices, international human rights law, international instruments, lack of knowledge, legal obligation, Maputo Protocol, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’s Rights in Africa, right to health, right to life, sexual and reproductive rights, South Sudan, Transitional Constitution of the Republic of South Sudan
Author: Akot Makur Chuot
Assistant Lecturer, School of Law, University of Juba, South Sudan
Introduction
Being born a girl in South Sudan is akin to being ‘born a problem.’ I derived this phrase from the article by Marry Ellsberg and others titled, ‘ If You Are Born a Girl in This Crisis, You Are Born a Problem….’ This sums up the dire situation a girl-child faces in South Sudan. Among the many egregious human rights violations experienced by the girl-child in South Sudan is child marriage. This practice has shattered the dreams and lives of many young girls. The rate at which child marriage is negatively affecting the health of the girl-child is alarming and calls for swift action from stakeholders. This is a moral and legal obligation.
With this context in mind this article examines the negative consequences of child marriage on the girl-child’s right to health, assesses the steps South Sudan has taken to curb the phenomenon, and explores the loopholes in the laws and policies.
What has South Sudan done so far in protecting the rights of the girl-child and what are the loopholes?
Over the years, South Sudan has ratified international instruments aimed at addressing injustices and inequality against girls and women. These legal frameworks include the Convention on the Rights of the Child (CRC), the African Charter on Human and Peoples’ Rights (African Charter), Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’s Rights in Africa (Maputo Protocol) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). These treaties contain obligations which require South Sudan to ‘take legislative, administrative and other measures’ to protect the rights of girls, including the right to health and the right to be protected from harmful practices like child marriage.
In fulfilling these obligations, South Sudan enacted the Transitional Constitution of the Republic of South Sudan of 2011 as amended, the Penal Code Act of 2008 and the Child Act of 2008. The Constitution and the Child Act define a child as anyone below 18 years old, however, they do not explicitly set a marriageable age, offering a loophole which perpetrators could exploit. Contrary to international human rights laws, Article 15 of the Constitution stipulates that marriages should be done according to the family laws yet some of these family laws do not consider age as a factor to determine maturity but rather biological factors such as the ‘first puberty cycle for girls’ and the growth of ‘hair in the armpits and deep voice’ for boys. Article 15 is arguably inconsistent with Article 17(1)(g) which ‘protects children from negative and harmful practices which affect their health, welfare and dignity.’ In addition, section 247(3) of the Penal Code does not consider rape within marriage to be a criminal offence, thus leaving children engaged in child marriage vulnerable.
However, a glimpse of hope came with the establishment of the Gender-Based Violence and Juvenile Court in 2020. The Court has purposively interpreted the Child Act, the Constitution and international treaties, holding that any marriage with any girl below 18 years is illegal, null and void. In most cases, the Court held that the customs are inconsistent with the international human rights law as the child does not have the capacity to consent to marriage. The underpinning challenge is that there is only one Gender-Based Violence and Juvenile Court which is situated in Juba, South Sudan’s capital city, leaving young girls in the rest of the country at the mercy of customary courts which apply customs and disregard international human rights law.
Impacts of Child Marriage on the girl-child’s Right to Health
The right to health is a basic human right upon which the right to life depends and is guaranteed in Article 16 of the African Charter, Articles 24(1) and 24(2)(a) of the CRC, Article 14 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter) and Article 14 of Maputo Protocol. The impact of child marriage on the right to health of young girls in South Sudan is evidenced by among others, the highest maternal mortality rate in the world, with about 2,054 deaths per 100,000 live births. The negative consequences of child marriage on the girl’s right to health range from physical to mental and lack of access to information. For instance, each year, about 5000 girls are affected by obstetric fistula caused by injuries inflicted by childbirth which leaves the girl with ‘urine or faecal incontinence that causes infection, pain, and bad smell, and triggers stigma.’
The incidence of obstetric fistula is exacerbated by the fact that young girls who are victims of child marriage do not have access to contraceptives and safe sex due to a lack of knowledge of sexual and reproductive rights. Additionally, because of power imbalance, their husbands often deny them access to contraceptives as most of them do not support family planning. As a result, most of these young girls are vulnerable to unplanned pregnancies, and health risks complications such as contracting HIV/AIDS. In addition, young girls tend to develop labour and delivery complications such as eclampsia and anaemia, which has implications for their right to health.
Victims of child marriage also suffer mental health consequences as a result of suffering from trauma, violence, forced sexual relations, domestic chores, the stress of being in a strange environment, and isolation in case of forced marriage. These sometimes lead to suicide and depression.
These negative implications of child marriage violate girls’ right to health under the African Charter, African Children’s Charter and Maputo Protocol and amount to a failure by South Sudan to fulfil her obligations under these human rights treaties.
Conclusion
Child marriage is a grave violation of human rights, and it negatively affects the girl-child’s right to health. Even though South Sudan has taken measures to address child marriage, the gap in the laws, prevalence of cultural practice, and lack of implementation have led to its continued prevalence with significant consequences for the right to health of the girl-child. South Sudan is obliged under the Maputo Protocol to criminalise child marriage, set the minimum age of marriage at 18 years, and strengthen enforcement and implementation of the existing legal framework. The full implementation of the Maputo Protocol will be enhanced if the reservations South Sudan made relating to sexual and reproductive health rights are withdrawn.
About the Author:
Akot Makur Chuot holds LLM in Human Rights and Democratisation in Africa from the University of Pretoria and an LLB (First Class Honours) from the University of Juba. He teaches law as Assistant Lecturer and serves as a Moot Court Coach at the School of Law, University of Juba, South Sudan. He holds a Certificate in Legal Practice (LP), from the South Sudan Bar Association and is an Associate at City Law & Co. Advocates, South Sudan.
