Obasohan et al.

Reasons for Partial and Non-immunization

ORIGINAL RESEARCH ARTICLE

Child Marriages, Child Protection and Sustainable Development in

Kenya: Is Legislation Sufficient?
DOI: 10.29063/ajrh2019/v23i2.12

Ajwang‟ Warria*
Department of Social Work, University of the Witwatersrand

*For Correspondence: Email: [Link]@[Link]; Phone: +27 11 717 4472

Abstract
Globally, 15 million girls are married before the age of 18, with Kenya having one of the highest child marriages prevalence in
the world, estimated at 25-30%. Child marriages in Kenya are rampant in rural areas. Child marriages are part of customary
practices in communities where they are prevalent. Child marriages have also been used as a survival strategy by families. Child
marriages compromise a child‘s development and threaten the achievement of Sustainable Development Goals. This paper
highlights international conventions and analyses Kenyan legislative framework that have been put in place to protect children
from child marriages. A review of literature was undertaken and the analysis showed that Kenya has a strong legal framework to
fight child marriages and to prosecute perpetrators. However, the practice still remains rampant and is on the increase in certain
areas. Indeed, child marriage policies and reproductive health measures targeting children should reflect a child-rights approach
and also focus on socioeconomic vulnerabilities to address the root causes. In addition, it should be acknowledged that child
protection and reproductive well-being are collective processes requiring collective responsibility and not only legislative and
policy reforms. (Afr J Reprod Health 2019; 23[2]: 121-133).

Keywords: Child marriages; Child protection; Legislation; Reproductive well-being; Sustainable development; Kenya

Résumé
Au niveau mondial, 15 millions de filles sont mariées avant l'âge de 18 ans, le Kenya enregistrant l'une des prévalences de
mariages d'enfants les plus élevées au monde, estimée entre 25 et 30%. Les mariages d'enfants au Kenya sont monnaie courante
dans les zones rurales. Les mariages d'enfants font partie des pratiques coutumières dans les communautés où ils sont répandus.
Les mariages d'enfants ont également été utilisés comme stratégie de survie par les familles. Les mariages d‘enfants
compromettent le développement de l‘enfant et menacent la réalisation des objectifs de développement durable. Ce document met
en évidence les conventions internationales et analyse le cadre législatif kényan mis en place pour protéger les enfants des
mariages d'enfants. Une revue de la documentation a été entreprise et l'analyse a montré que le Kenya dispose d'un cadre
juridique solide pour lutter contre les mariages d'enfants et poursuivre les auteurs de tels actes. Cependant, la pratique reste
généralisée et est en augmentation dans certaines régions. En effet, les politiques relatives au mariage des enfants et les mesures
de santé de la reproduction visant les enfants devraient refléter une approche axée sur les droits de l'enfant et se concentrer
également sur les vulnérabilités socio-économiques pour s'attaquer aux causes profondes. En outre, il convient de reconnaître que
la protection des enfants et le bien-être en matière de procréation sont des processus collectifs nécessitant une responsabilité
collective et non pas uniquement des réformes législatives et politiques. (Afr J Reprod Health 2019; 23[2]:121-133).

Mots-clés: Mariages d'enfants, protection de l'enfant, législation, bien-être de la reproduction, le développement durable Kenya

Introduction the child‘s education and psychosocial functioning

and development. Child brides‘ status are
Child marriages are prevalent in sub-Saharan elevated, glorified and celebrated. Unfortunately,
African countries, with negative consequences on in majority of these marriages, the young bride

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Ajwang‟ Warria Kenya Legislation and Child Marriages

rarely meets and/ or gets to know her future findings from a situational analysis conducted in
husband prior to the marriage and may not see her Kenya9.
family after the marriage1. Forced and early In this paper, the nexus between child
marriages impact reproductive well-being. Child marriages and child protection is examined whilst
marriage is a gender-based and human right using a child rights lens to interrogate the
violation that undermines strategies to promote and legislative framework in Kenya. A review of
achieve sustainable development2-5. Ending child literature was undertaken to understand the nature
marriages is critical towards realizing half of the of child marriages in Kenya. The initial search for
Sustainable Development Goals (SDG) such as material used key words ―child marriages‖, ―child
poverty, gender equality, zero hunger, and marriages and child protection/rights Kenya‖,
reducing inequalities. ―child marriages Africa‖, ―child marriages Kenya‖
In discussing child marriages, it is important to and child marriages legislation Kenya.‖ A grey
note that not all child marriages between children literature search was also conducted in October
are forced and not all early marriages mean that 2017 and an updated search conducted from
children are involved. There are indeed successful February to May 2018. The selection criteria used
teenage love marriages. Self-initiated child for the peer-reviewed journal articles was that they
marriages can be a way to show self-determination should not be older than 15 years. Reports
and personal independence though these can also commissioned by organizations such as UNICEF,
be influenced by compulsion3. In this paper, child United Nations Population Fund (UNFPA) and
marriages will mean an early and sometimes forced Save the Children were also reviewed. A brief
(formal or informal) marriage that a child enters background on child marriages is provided. The
without their full consent whilst under the age of discussions then shift and focus on the laws in
18. Child marriages also include boys, although Kenya. Finally, recommendations for practice and
most studies report that mainly girls are married off policy are put forward. This paper contributes to
before they turn 18 years1,3. This is emphasized in child marriage and sexual and reproductive health
a report by the United Nations International debates as links to sustainable development and
Children‘s Emergency Fund (UNICEF) that at SDG Target 5.3 on elimination of harmful
present, 720 million women were child brides in practices.
comparison to 156 million men6.
Most child marriages worldwide, including
Child marriages
in Kenya, have been reported in pre-adolescent and Harmful consequences are associated with child
adolescent girls7,8. 76% of children in Kenya have (forced) marriages, yet these marriages are still
experienced at least one type of abuse before they prevalent due to the enmeshment between culture
turned 18 years, which put them at risk of early and community which influences lifestyles and
marriage9. Although there are programmes that being married young can indeed be a norm and a
focus on adolescents, they usually target child way of life11,12. Other factors which influence child
protection, and gender and reproductive health marriages include customary, religious and cultural
programmes10. This should not to be so because the practices weak child protection systems in a
adolescent stage is an age of heightened country, poverty, gender inequality and
vulnerability whereby adolescents are at risk by humanitarian settings (with cases of famine brides
virtue of being both a child and a girl. This finding in Kenya, tsunami widowers in Indonesia and bush
on gender inequalities and child protection wives in Uganda)1,3,4,13-21. In addition, child
concerns during adolescence resonates with earlier marriages are often used to cement alliances, as a

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Ajwang‟ Warria Kenya Legislation and Child Marriages

source of wealth and in justifying discriminatory relations, unplanned pregnancies and school
social norms which prioritize feminine roles and dropout precede the early marriage7.
family reputation such as virginity1, 7,10,14,16,21-23. Serious over-lapping reproductive health
Child marriages in Mauritania are common and and psychosocial risks are reported in young
justified as an instrument to reject modernisation14. brides. They include, but are not limited to
It is worth noting that these highlighted reasons maternal mortality due to postpartum haemorrhage,
associated with child marriages are often complex obstetric fistula and obstructed labour, sexually
and not driven by a single factor2,24. The causes are transmitted infections, and cervical cancer18,27. A
also interrelated, interdependent and country- study carried out in Kisumu (Kenya) and Ndola
specific25. (Zambia) reported that HIV prevalence was higher
Bangladesh, Niger, Ethiopia, Mali, Chad, in married adolescent girls in comparison to their
Guinea, Nepal, Central African Republic, Burkina age mates who were sexually active28. The risks are
Faso and India are the ten countries with the because child brides are not able to reject unsafe
highest prevalence of child marriages4. Although sexual practices and there is societal pressure to
the prevalence of child marriages in Kenya is not prove their fertility, which may also result in
as high as those from these ten countries, the pregnancies when their bodies are not well-
relatively high numbers are still a concern. developed4. The negative health consequence may
According to Kenya Democratic and Health lead to socio-cultural consequences such as an
Survey, 6% of girls are married by the age of 15 obstructed labour leading to fistula and shame,
and 26% (one in four) are married by the age of humiliation and stigma from urine leakage if it
189. Thus, gender inequalities are more significant remains untreated.
in teenage girls and specific protection concerns When girls drop out of school and leave
arise due to risk of violence, abuse, exploitation home due to early and forced marriages, it as a
and early marriages. double tear in the safety net3. This is because the
In Kenya, the national child marriage rate girls are leaving familiar settings into an unknown
is 26.4% although it highly varies depending on the territory where they are less equipped to protect
region. In Nyanza Province and in North Eastern themselves. When girl‘s education is disrupted
Province inhabited by pastoral communities such either before or because of the marriage, they lose
as the Samburu, Maasai and the Pokot early valued exposure to benefits such as mobility and
arranged marriages are used to bolster the family access to social networks associated with formal
wealth when cattle is used as bride price8,11. education, thus rendering young girls powerless
―Romantic kidnappings‖ contribute to early and vulnerable and it challenges their transition to
marriages among the Kikuyu, Turkana, and Maasai adulthood and their later dual roles as mothers and
to avoid shame and stigma attached to the wives16. Domestic and sexual servitude are forms
defilement of a girl child8. In these communities, of exploitation that can occur in marital contexts
the girl‘s viewpoint does not count and adult male especially in marriage-migration situations29. Early
members of the family usually make the transnational marriages place the local older spouse
decisions26. Though parental and judicial consent in a position of power and the migrant in a position
to early marriage has been outlawed in Kenya, girls of dependence (which can be abused and
are still being married off before attaining the exploited). Child marriage has been linked to the
minimum age in rural areas Kenya with parental exploitation and trafficking of girls3,23,24,30.
consent. Contradictorily, girls in Africa (in The consequences of child marriages show
comparison to South Asia) have more autonomy that ending child marriages is critical to the
when selecting a marriage partner since sexual achievement of Sustainable Development Goals

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Ajwang‟ Warria Kenya Legislation and Child Marriages

(SDGs)5. SDG Target 5.3 was set to eliminate child categorizing child marriages as a child rights
marriage under 18 by 2030 globally. The violation raises public concerns and debates,
achievement of this target is underway as evidence highlights their prevalence and exposes these
by the UNICEF report which indicates that child private agreements between individuals and
marriage numbers are decreasing with 1 in 5 as families30.
opposed to 1 in 4 girls now married before 18 In Africa, the 2005 Women‘s Protocol
which was not the norm 10 years ago31. However, states that the minimum age for marriage for
the same report by UNICEF noted that burden of women is 18 years36. However, it does not provide
child marriages was shifting to sub-Saharan Africa, the same for men. The 2006 African Youth Charter
with 1 in 3 child marriages reported in the region31. requires that during celebration of the marriage,
both parties should be of full age with consent
International and Africa-regional being the primary factor for consideration37. In the
conventions 1990 African Charter on the Rights and Welfare of
the Child (ACRWC), betrothal and marriage of a
The Universal Declaration of Human Rights, the
child under 18 years is prohibited and calls for
Convention on Consent to Marriage, Minimum
appropriate national legislation to be developed
Age for Marriage and Registration of Marriages
and enacted to curb child marriages and to identify
and the Convention on the Rights of the Child
victims38. Kenya has signed all the above
highlights minimum age, mutual informed consent,
international and regional conventions and
violence, and exploitation as relates to child
accompanying protocols. Interestingly, the 2005
marriages3,32,33,34. The right to free and full consent
Council of Europe Resolution 1468 on Forced
to marriage is acknowledge and emphasized. It is
Marriages and Child Marriages does not recognize
crucial to note that consent cannot be ―free and
these marriages which happened elsewhere except
full‖ when one of the parties entering the marriage
if they were done in the child‘s best interest39.
is not mature enough to make informed decisions,
even if the caregivers are present and they give
Kenyan legislative frameworks
consent on behalf of the child. Violation of
international norms has been reported in Pakistan Kenya has a dual legal system, which recognises
where boys and girls are treated differently in both statutory and customary laws, provided these
respect to marriage age i.e. 18 for boys and 16 for laws do not infringe on the rights of the people.
girls4. The adopted legislations and policies as relate to
Child marriage violates children‘s rights. child marriages in Kenya will be presented next in
All the five categories of children‘s rights are conjunction with barriers to their implementation
violated when the child is married off30. According and leading to child marriages not being reduced
to the Universal Declaration of Human Rights, a effectively.
person may enter marriage freely, when 18 years
and above and with their full consent. This is not The Constitution (2010)
the case in most forced marriages involving
children35. When a child is forced into a marriage According to Sec. 11(1), the Constitution
before, they reach an age where and a time when acknowledges ―culture as the foundation of the
they are able to give informed consent, it violates nation…‖ This supports an earlier clause (Sec.
their basic rights. This new status bestowed on 2(a)) which notes that the states seek to promote all
them can also infringe on the delivery of rights forms of national and cultural expressions through
entitled to them as children3,36. Locating and traditional ceremonies and other forms of cultural

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Ajwang‟ Warria Kenya Legislation and Child Marriages

heritage. These clauses are further supported by ―every adult has the right to marry a person of the
Sec. 56(d) which indicates that ―the State shall put opposite sex, based on the free consent of the
in place affirmative action programmes designed to parties.‖ This shows a further emphasis on
ensure that minorities and marginalized groups minimum age of marriage and free consent and it is
develop their cultural values, languages and aligned to the international conventions.
practices.‖ However, these cultural rights should
not infringe on the rights of others. These tensions The children’s act
speak to contestations between cultural rights and
western law15. Achieving unity in diversity is The Children‘s Act is currently undergoing a
challenging to attain in practice due to lack of review process so that it can be aligned to the
robust national debates about complexities on ―new‖ Constitution. Sec. 14 protects children from
cultural rights. harmful cultural rights and indicates that nobody
Chapter 4 is on the Bill of Rights and Sec. should make child undergo ―…early marriage or
28 states that ―every person has inherent dignity other cultural rites, customs or traditional practices
and the right to have that dignity respected and that are likely to negatively affect the child‘s life,
protected. When children are married off by their health, social welfare, dignity or physical or
caregivers, it is a degrading act. Child marriages psychological development.‖ Although no
can be a form of child trafficking as children are punishments are outlined for convictions of early
kept in marital situations that resemble marriages, it is assumed that the Sexual Offences
enslavement and are at times required to perform Act provisions can be applied in like cases.
forced labour as instructed by her husband or his Sec. 21 is on duties and responsibilities of
family30. Therefore, Sec 30(1), stating that ―no the child to include work for the cohesion of the
person shall be held in slavery or servitude‖ and family, respecting elders and superiors and
Sec 30(2) which states that ―a person shall not be preserve and strengthen positive cultural values in
required to perform forced labour‖ condemn child his or her community, with due regard for their age
marriages. and ability. However, this in the past has been
Sec. 44(1) states that ―every person has the misinterpreted to support and show acceptability of
right to …participate in the cultural life of their child marriages due to cultural family values. Child
choice.‖ However Sec 44(3) states that ―a person brides are often young, under-educated and
shall not compel another person to perform, dependent on their families for their best interest
observe or undergo any practice or rite.‖ This determination and therefore unable to speak out
clause can be interpreted to mean that family or against acts of abuse being perpetrated through a
even close relatives should not entice or make a marriage organized by parents or caregivers. Child
child go through a marriage even if it is part of brides often lack options, obey their elders and do
their culture. Furthermore, Sec. 53 outlines as they are told30.
children‘s rights with Sec 53(d) stating that every In Sec. 23(2), the duties of the parents shall
child has the right ―to be protected from abuse, include protecting the child from neglect,
neglect, harmful cultural practices, all forms of discrimination and abuse (b) and they have the
violence, inhuman treatment and punishment, and right to give parental guidance in religious, moral,
hazardous or exploitative labour.‖ Sec. 55(d) social, cultural and other values. However, it
further states that the youth should be safe-guarded should be noted that most times, it is the same
from harmful cultural practices. The Constitution parents entrusted with protecting the children who
requires that there is free will between adults when actually arrange for and transact these child
they are getting married. Sec. 45(2) states that marriages on behalf of their children. In

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Ajwang‟ Warria Kenya Legislation and Child Marriages

communities where gender inequalities are rife, In Sec 3(2), all parties have equal rights at the time
girls are considered an economic burden and they of, during and at dissolution of a marriage.
are married off for cash, cattle or other acceptable However, in child marriages the rights are skewed
transaction(s) as a financial survival strategy for and tilted more towards the older man marrying the
the family. under-age girl. Most young girls who are married
Education can delay marriage40. A single off do not have a voice and their sense of agency is
year pursuing primary or secondary school discouraged. It has also been noted that certain
correlates to increments in women‘s wages later in customary laws allow for under-age pregnant girls
life4. This means that educating a girl advances to be married off with their parent‘s consent24. Sec.
economic development for a country whilst 3(3) notes that all marriages under the Act have the
increasing incomes for the girl and her family. Sec. same legal status. When the legal status of
7 of the Kenyan Children‘s Act supports this by marriage is regulated by a combination of three
stating that every child is entitled to education. parallel legal frameworks, limited consistency can
This provision is the responsibility of the parents be observed reflecting the competing laws as such
and the government. In Kenya, although there is and further weakening protection remedies.
free primary school education and it has opened up Consistent minimum marriage age laws
opportunities, not all children have access to protect girls from early child bearing and from
schools. If they have access to schools, especially being abused and exploited in early marriages. Sec.
in the rural areas, the schools are not well- 4 requires that both parties getting married be 18
resourced or they are far from their homes thus a years and above. In addition, no person under the
security issue arises for girl children and most drop age of 18 shall be considered to be a competent
out. Insecurity decreases school attendance and witness to any marriage. This is supported further
gives rise to early marriage being socially by Sec 11(1)(a), (b) and (c) i.e. the union will not
acceptable as a path to adulthood. Thus, when a be considered a marriage if at the time of marriage
girl child drops out of school, her chances of either party was below 18 or the consent was not
getting married early are higher. However, recent freely given or they were absent from the
arguments suggest that investment in girl‘s ceremony. In addition, Sec. 11(2) states issues of
education only is not enough when other crucial free consent. Consent is also not freely provided if
avenues to fight child marriages such as safety of the child bride or groom is under 18 and the nature
girls, discrimination, social norms, reproductive of the proceedings have not been clearly explained
health services and cash transfer programmes are to them in such a manner that they can participate
neglected2,5. in the decision-making process and provide full
consent. According to Sec. 87 marrying a person
The marriage act (No. 4 of 2014) who is under the age of 18 is a criminal offence
This Act consolidated all marriage laws in Kenya and if convicted, he or she is liable to
and removed all discriminatory provisions imprisonment for a maximum of 5 years or fined a
regarding different ages for boys and girls for maximum of KSh 1,000,000 ($10,000) or to both.
marrying, in line with international conventions. This could also include witnesses (Sec. 87(3)).
The Act provides for the definition of marriage in However, in as much as people may be aware of
Sec. 3(1) as ―the voluntary union of a man and a the legal age of marriage, they might not fear being
woman whether in a monogamous or a convicted and punished16.
polygamous union and registered‖. This means that Marriage registration is crucial to ensure
consent and registration of the marriage is minimum marriage age3. Several regional
compulsory. instruments such as Addis Ababa Declaration on

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Ajwang‟ Warria Kenya Legislation and Child Marriages

Ending Child Marriages, ACRWC and the religions are predominant. In as much as a best
Women‘s Protocol make marriage registration practice has been observed in Saudi Arabia, where
obligatory. Sec 12 indicates that marriage is marriage contracts ask for the brides‘ age, it is not
voidable if it was not registered. Most child guaranteed that the actual age is always provided.
marriages, worldwide including in Kenya, are often According to Sec. 71(1), the marriage can
not registered. The anecdotal reasons for non- be annulled if the petitioners‘ consent was not
registration vary to include lack of registration freely given and if they were absent during the
facilities, fear of being caught and punished, not celebration of the marriage. However, in Sec.
seeing value in registering the marriage, proper 71(2)(a), the court shall grant a decree of
protocols not followed during marriage ceremony, annulment if the petition is made within one year
lack of proper documentation required and lack of of the marriage. This is an unreasonable legal
money. It is a crime in Kenya not to register a requirement since most young brides may not have
marriage according to Sec. 42(3), and if convicted access to resources and knowledge of their rights to
the person liable to a fine not exceeding KSh 5000 terminate these under-age marriages. Social
($500) or community service or both. That said, workers can advocate for an amendment to this
clarity is required if compulsory marriage one-year period as a legal obstacle to a local legal
registration equates to minimum marriage age remedy41.
always being reflected correctly. In Sec. 91(1)(a), it is a criminal offence to
Marriage registration will not be effective celebrate or witness a marriage knowing very well
if the actual age of the bride and groom are that one of the parties is under the age of 18. The
unknown. Birth registration is a fundamental right person can be convicted and is liable to a
and a foundation for marriage registration and maximum of 6 months imprisonment or a
towards fulfilment of other essential rights. maximum fine of KSh 50,000 ($500) or to both
Documents which are required for marriage (Sec 92(2)). These clauses address the impunity of
registration have not been specified in the Act. perpetrators and also ensure accountability of duty-
Birth registration might not occur due to lack of bearers. However, it should be noted that when the
awareness and poor access to health and state decides to pursue criminalisation, it ignores
registration facilities. In as much as 60% of the poverty-family complicity nexus15. Anecdotal
children in Kenya are registered, only 24% of reports indicate that there is general unwillingness
children under 5 have a birth certificate, with a big to report celebrating or witnessing under-age
discrepancy in the rural versus the urban areas9. marriages because of possibilities of ripping apart
Registration services should thus be extended to the extended family, being instrumental in sending
these rural areas where child marriages are more significant family members to jail, being accused
widespread. of embracing western culture at the expense of
Customary marriages should be registered cultural norms and practices.
within 3 months of the completion of the relevant
The counter-trafficking in persons act (No. 8
ceremonies, and both parties should be 18 years
and above and should have freely consented to the
of 2010)
marriage. Part IV and V of the Act are on Hindu If child marriages may be for sexual exploitation,
and Islamic marriages respectively which should then the explanation provided for trafficking for
also be recorded but the clauses do not provide the sexual exploitation as stated in Part I the Counter-
minimum age for the marriages. This is a matter of Trafficking in Persons Act is applicable, i.e. that:
concern as lower age for marriages has been Trafficking for sexual exploitation means
allowed in certain countries where Hindu or Islam trafficking:

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Ajwang‟ Warria Kenya Legislation and Child Marriages

(a) With the intention of doing anything or in the Act is silent on under-age girls who are
respect of a particular person during or after a considered adults and married off after undergoing
journey within Kenya or in any part of the FGM.
world, which if done will involve the
commission of an offence under the Sexual Sexual offences act (No. 3 of 2006)
Offences Act, 2006; or
In the Act, Sec. 8(1) defines defilement as
(b) In the belief that another person is likely to do penetration with a child. Sec. 8(2), 8(3) and 8(4)
something to or in respect of the person show that there are harsher sentences accorded
trafficked, during or after a journey within when a person defiles younger girls. However, Sec.
Kenya or in any part of the world, which if (5)(a) and (b) states that defence to the charge of
done will involve the commission of an offence defilement can be allowed if it can be proven that
under the Sexual Offences Act, 2006 the child deceived the accused person into
believing that she was above 18 years at the time of
Although the Act does not make explicit mention the defilement and/ or the accused reasonable
to trafficking for purposes of (forced) marriages believed that the child was over 18 and took steps
similar to the South African Trafficking Act to ascertain the age of the child. Sec. 9(1) and (2)
(2013), in Part II the abuse of power or of position indicates that attempted defilement is when
of vulnerability can be directly implied and linked somebody attempts a penetrative act on a child and
to child marriages (Sec. 3(1)(e)). The purposes of if found guilty, they are liable to maximum 10
trafficking as listed in Sec 4(1) include for years imprisonment. Sec. 29 is on cultural and
adoption, fostering or guardianship, but trafficking religious sexual offences and it states that any
for marriage purposes is not recognised as an act individual who coerces another to take part in a
that could potentially promote child trafficking sexual activity for religious or cultural reasons
though this has been supported in other studies3,30. commits an offence and is liable for a maximum
Connections between child exploitation and 10-year imprisonment.
trafficking, child marriages and child labour should In terms of consent, Sec. 42 notes that ―a
be made more explicit and strategic action planned person consents if he or she agrees by choice, and
around them. has the freedom and capacity to make that choice.‖
This implies that children in child marriages might
The prohibition of female genital mutilation not have the capacity to make informed choices
(FGM) act (No. 32 of 2011) about the union and it ties in with Sec 43 as an
intentional act. These unlawful acts include those
Women‘s and girl‘s reproductive health, rights and committed through force, threat of harm or abuse
general well-being is affected when they undergo of power/authority, under false pretences or by
FGM. This Act criminalizes FGM or cutting fraudulent means or where the person is not
performed on anyone irrespective of their age or capable of appreciating the nature of the act which
status. This act does not make any allowance on causes the offence.
FGM being carried out in honour of the girl and/or
her family. Sec. 25 bans stigmatization as well as The national plan of action for children,
condemns use of offensive language towards girls 2015-2022
and women who have not undergone FGM or
towards a man who either supports or has married This Plan of Action is aligned to the UNCRC and it
a woman who has not undergone FGM. However, provides an operational framework to guide

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Ajwang‟ Warria Kenya Legislation and Child Marriages

stakeholders in coordinating, planning and accompanying legal reforms should ensure

implementing programmes for children, whilst adequate awareness campaigns with families and
outlining priorities and interventions necessary for within communities. In addition, advocacy work
children‘s rights to be achieved. However, the around re-examination of national laws can help
Kenyan Plan of Action does not clearly lay out identify gaps and any inconsistencies and if the
details of a child protection system. This penalties and corrective measures put in place are
subsequently means that child marriage prevention working to reduce prevalence. It should also be
and response measures are not well developed and noted that interventions to support legal literacy
aligned with different government sectors in the and paralegal services are crucial prevention
country. strategies, since laws to prohibit and penalize child
marriages are not enough. Therefore, the child
Implication for Child Protection, protection system with strong referral systems,
Reproductive Health and Sustainable legal and psychosocial support should be
Development developed.
Legislating change is not enough. With
Kenya has a well-developed and strong legal legal reforms which set the age of marriage at 18
framework to protect children, which reflects and above and also eliminates parental and judicial
regional and international rights standards. This exceptions, there must also be additional policies
has been reflected in the previous section. Effective and varied interventions5,25. There is also need for
implementation and enforcement of child marriage well-developed action plans, with clear
laws and policies can prevent such marriages and intervention strategies that support delayed
weak implementation processes can undermine the marriages, reproductive well-health, children‘s
law‘s potential effectiveness. In Kenya, existing rights and improved investment in poor and
laws are poorly implemented and often superseded marginalized girls. Social workers and child
by customary laws especially in the rural area. This protection advocates must reach out to young boys
requires that community and traditional leaders and so that they (boys) can be partners in child
reproductive health advocates are part of any marriage prevention, advocates for girls‘
intervention process that is planned especially at reproductive rights and change agents in their
grassroots levels4. In addition, the country communities. Efforts should also involve men who
generally lacks well-trained and skilled office duty- are perpetuating and benefiting from this practice
bearers with an in-depth understanding of the laws and they need to be engaged because of their roles
and policies as relates to child marriages. This in these communities27,42-45. However, it should be
subsequently affects service delivery as volunteers noted that working with individual genders can be
end up delivering these services through formal ineffective, can encourage and strengthen
and informal arrangements. The complaints benevolent sexism, generate backlash, increase
reported by the girls at-risk are at times not taken compliance with negative social norms, does not
seriously and the obligatory legal action not eradicate the root causes of gender inequality, and
followed through41. Thus, vulnerable children and prevent achievement of transformative change17,21.
those needing care and protection end up falling There have been numerous calls for community-
through the would-be protection nets. level intervention strategies that engage men and
Kenya has criminalized child marriages. women, boys and girls together4,17,42,46. There have
However, criminalising child marriages and also been counter arguments for individual-level
defilement may deter victims from exposing interventions with a focus on empowerment of
parents or other relatives and therefore, girls26,27. Whichever way, boys and men must be

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Ajwang‟ Warria Kenya Legislation and Child Marriages

part of the feminist movement44,45,47. Ultimately, In addition, social workers and other service
culturally-relevant interventions which encourage providers ought to be prepared to recognise and
dialogues involving both genders can lead to have targeted responses to the existing multiple
collaborative social transformation, increase in and forms of violence in families other than child
access to resources for women and more equitable marriages. Furthermore, engaging with families
norms in communities16,26. and communities (including children) to identify
Child marriages continue in the face of indigenous appropriate strategies and viable
economic strains, social network tensions and alternatives which advance cultural norms,
cultural norms. Similar to gender-based violence, family‘s interest and the best interests of the child
child marriages can be prevented and eradicated is recommended. This is critical in ensuring the
through interventions that target root causes of the outcomes of the interventions are sustainable and
problem such as poverty, lack of education, positive. Participatory approach, integrated with
availability and access to well-resourced the indigenous culture and positive parenting
reproductive health facilities, unequal power practices, are important for transitioning towards
dynamics and harmful social norms which drive rights-based social norms and practices.
and make the practice thrive21,22,43. Expanding
opportunities can support change in social norms Conclusion
that view marriage as the only way out of poverty,
safety and security and to cement alliances. A child marriage is a cross-cutting issue which
Therefore, child marriage interventions should be harms all aspects of a girl‘s life throughout her
incorporated into broader developmental lifetime. It demands attention from multiple sectors
programmes such as food security, land and all stakeholders and not only legislative
distribution, economic growth, gender equality, reforms as in Kenya‘s case. It requires a shift from
reproductive health and rights and child protection. small-scale programming to prevention and other
The power of community mobilization and interventions being placed within broader
the application of social norms theory should not structural efforts and activities whilst also
be under estimated since sustainable change efforts acknowledging that customary law can also
usually take place in communities. Communities advance the realisation and protection of children‘s
can be mobilized to shift and/or change norms, rights13.
laws, rituals and practices which perpetuate child Child marriages reveal tensions between
marriages. However, this requires multi-level international, regional, and national discourses.
support based on collective efforts from local and From discussions on child marriages in Kenya, it is
international players27,35,41. Child marriages are evident that in as much as laws can change national
often considered private, family matters (governed narratives, legislation is not enough. Pertinent
by culture and religion). Thus, cross and multi- underlying issues such as rights, culture and
cultural programming efforts must be sensitive to traditions, poverty and socialization exist and
these contexts when tackling deep-rooted social should be tackled alongside policy reforms. This is
norms, attitudes and practices. Programming because a protective environment for children is
efforts must have adequate resources to ensure influenced by the socio-economic and the socio-
actual realisation of goals41. Furthermore, girls cultural context in which they grow and develop.
under 18 should also have access to sexual and Indeed, people‘s values matter in international
reproductive health and rights programmes and development48. The public should also be made
services3. aware of the laws and policies and they should be

African Journal of Reproductive Health June 2019; 23 (2):130

Ajwang‟ Warria Kenya Legislation and Child Marriages

invited to contribute to their development. Eradicating child marriage in the Commonwealth: Is

Furthermore, well-trained and skilled social investment in girl‘s education sufficient? The Round
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