Over the weekend, I sighted a viral video wherein some customary rites were being performed for one young girl alleged to be 12 years old.
The essence of the customary rites was to “engage” this young girl to the Gborbu Wulomo of Nungua. As a legal practitioner, I intend to share my views on this as it raises lots of legal matters.
The first question we have to answer is; were the customary rites performed pursuant to a customary marriage or a betrothal? Admittedly, whether or not the customary rites were for customary marriage or betrothal may affect the outcome of my opinion on the matter ultimately.
The law on children’s right
In Ghana, child for the purposes of this opinion is a person below the age of 18 years and this is constitutionally and statutorily recognized by Article 28(5) of the 1992 Constitution and Section 1 of the Children’s Act, 1998 (Act 560).
Article 28 of the 1992 Constitution generally seeks to protect the rights of children, as such Parliament has a constitutional mandate to enact laws to protect the rights of children. It is pursuant to this constitutional mandate under Article 28(1) of the 1992 Constitution that Parliament has enacted the Children’s Act, 1998 (Act 560).
The welfare principle as codified in section 2 of Act 560 states emphatically clear that in all dealings involving a child, the best interest of the child should take paramountcy. Nothing should be done to prejudice the best interest and rights of the child. In the case of JOSEPHINE SOKROE OF TARKWA (SUING AS ADMINISTRATOR OF THE ESTATE OF THE LATE HAYFORD WOGBE) V ANTHONY KOFI ASSMAH, the High Court Coram: His Lordship Justice Robin B. Batu explained the welfare principle as follows;
“Neither the Constitution nor Act 560 or 653 define the welfare principle or what constitutes the best interest of the child. I will surmise that what constitutes the best interest of the child would comprise of everything that inures to the welfare of the child including the unhindered enjoyment of all the rights guaranteed to a child under Article 28 of the constitution and particularly the enjoyment of the rights which Section 6 (2) of Act 560 imposes on parents as a duty to provide for the child –the right to Life, Dignity, Respect, Leisure, Liberty, Health, Education and Shelter.”
In determining the welfare of the child, the Court of Appeal in Suit No. H1/63/2017 and titled MICHAEL KYEI BAFFOUR V GLORIA CARLIS ANAMAN outlined some factors to be considered as follows;
“The key item of determination here, therefore, is what would the welfare or best of interest of the child be? In an attempt to decipher the ‘best interest or welfare’ of a child or an issue, with regard to the facts of this case, the following must be considered:
- a) The age of the child; and
- b) The need for continuity in the care and control of the child.,
- c) As well as any other matter which will be of relevance”
Therefore, with respect to this matter at hand, in all dealings we should prioritize the welfare of the 12-year-old girl.
Can the 12-year-old marry or be betrothed?
Section 14 of the Children’s Act, 1998 (Act 560) which is headed “Right to refuse betrothal and marriage”. The provision reads;
(1) A person shall not force a child
(a) to be betrothed,
(b) to be the subject of a dowry transaction, or
(c) to be married.
(2) The minimum age of marriage of whatever kind is eighteen years.
The wording of section 14(2) of Act 560 states that the minimum age of whatever kind (whether ordinance, customary or mohammedan) is 18. Hence, under section 14 of Act 560, if the customary rites performed over the weekend were pursuant to a customary marriage, then even if the 12-year-old girl consented, such consent is void in law and as such the marriage would be a nullity. In that instance, the law will assume that the child was forced to marry since in law, the child does not have legal capacity to consent to marriage.
But can we say same for betrothal? Assuming what went on over the weekend were customary rites pursuant to a betrothal, and the 12-year-old girl consented to same, can we say such consent is void? This is a lacuna that needs to be filled under the Children’s Act.
I say so because considering critically our Criminal Offences Act, 1960 (Act 29), one may bear me out on this angle. Section 14 of the Criminal Offences Act, 1960 (Act 29) provides some useful guide. The said provision reads as follows;
“In construing a provision of this Act where it is required for a criminal act or criminal intent that an act should be done or intended to be done without a person’s consent, or where it is required for a matter of justification or exemption that an act should be done with a person’s consent,(a) a consent is void if the person giving the consent is under twelve years of age, or in the case of an act involving a sexual offence, sixteen years, or is, by reason of insanity or of immaturity, or of any other permanent or temporary incapability whether from intoxication or any other cause, unable to understand the nature or consequences of the act to which the consent is given”
From section 14 of Act 29, a person below the age of 12 cannot give consent generally and for purposes of sexual activities, a person below the age of 16 cannot give consent.
Does it mean that aside sexual activities, for the purposes of other matters under Act 29, the 12-year-old girl could have consented to the betrothal?
Aftermath of the performance of the customary rites
Can there be criminal sanctions after the performance of these customary rites?
We will consider this from Act 560 and Act 29.
- Under the Children’s Act, 1998 (Act 560) Section 15 of Act 560 makes it criminal for a person to force a child to marry or be betrothed.
The said section provides;
“A person who contravenes a provision of sections 2 to 14 commits an offence and is liable on summary conviction to a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment not exceeding one year or to both the fine and the imprisonment.”
Therefore, where it is established that the 12-year-old girl was forced to marry or be betrothed, then the person who forced the 12-year-old girl will be liable for committing an offence. Even if, the 12-year-old child agreed/consented to the marriage (that is, if indeed what happened was a customary marriage), the person behind this will be liable for committing an offence since in law, the 12-year-old girl cannot consent to marriage.
However, if the 12-year-old-girl consented to the betrothal (that is, if indeed what happened was a betrothal), then it may be difficult to conclude that the person(s) behind it is liable for committing an offence under Act 560.
- Under the Criminal Offences Act, 1960 (Act 29) Section 109 of Act 29 makes forced marriage criminal. The said provision reads as follows;
“A person who by duress causes another person to marry against that other person’s will, commit a misdemeanour.”
This provision makes it criminal for a person to compel another person to marry. Considering sections 14 and 109 of Act 29, the following question has to be looked at critically;
Assuming the 12-year-old girl consented to the customary marriage (which does not include sexual activity, at least we cannot confirm that), will such consent be still deemed void such that the person(s) behind it will be liable under section 109 of Act 29?
I agree in law such consent will not validate the “purported customary marriage” but we are looking at its criminal sanctions here.
I ask this because under section 14 of Act 29, a child of 12 years can consent to any other thing aside sexual activities. Therefore, in my opinion, it may be difficult to prosecute the person(s) behind this whole thing if indeed it is established that what happened was a betrothal and not marriage. If what happened was customary marriage, then such marriage is void in law and also the person(s) behind it will be liable under both Act 29 and Act 560.
I find it fallacious when people argue that even if what happened over the weekend was marriage, such marriage was done under customary law and as such it is valid. I will answer this by quoting His Lordship Charles Crabbe JSC in GYAMFI AND ANOTHER V OWUSU AND OTHERS [1980] GLR 612, where the Learned Justice stated as follows;
“Where the customary law conflicts with the statute law, it cannot be over-emphasized that the statute law should prevail. This is no longer open to discussion. The authority of the customary law cannot override the authority of what Parliament has decreed.”
In conclusion, this is my humble opinion on the matter;
Assuming what happened over the weekend was a customary marriage;
- Such customary marriage is void in law whether or not the 12-year-old child consented.
- Persons behind this customary marriage will be liable to be prosecuted under Section 15 of Act 560 whether or not the 12-year-old girl consented.
- Persons behind this customary marriage will be liable to be prosecuted under Section 109 of Act 29 if the 12-year-old girl did not consent to the customary marriage.
- Persons behind this customary marriage will not be liable to be prosecuted under section 109 of Act 29 if the 12-year-old girl consented to the customary marriage (which in this instance does not include any sexual activity).
Assuming what happened over the weekend was a betrothal;
- Such betrothal is not valid in law as it is not in the best interest of the 12-year-old child.
- If the 12-year-old child indeed consented to this betrothal, then there cannot be any criminal sanctions against the person(s) behind it.
- If the 12-year-old child was forced or did not consent to this betrothal, then the person(s) behind it will be liable under Section 15 of Act 560.
Author: Vincent Ekow Assafuah (Esq)
Member of Parliament (Old Tafo) and Deputy Minister Designate, Local Government, Rural Development and Decentralisation