CHILD MARRIAGE: (Mabor Maker Dhelbeny - Gurtong) - Under the Customary Law, early marriage hereinafter known as “child marriage”

is often practiced in South Sudan to legitimize the social contract between the fiancé and fiancée and thus considered to be the factor that promotes sexual and gender-based violence (SGBV) against women and girls. Violence against women is pervasively known as GBV because it stems from women’s subordinate status in a society.
But such practices can be regarded as a violation of human rights law and the South Sudan Transitional Constitution, 2011 (amended) in the sense that Article 15 provides that “… no marriage shall be entered into without the free and full consent of the man and woman intending to marry”.
This custom of marrying young girls off at their tender ages continues to be legally practiced in many African countries, more specifically in South Sudan’s rural areas. It’s a practice that usually supports the use of SGBV because the girls-children involved are actually unable to give or withhold their consent. This is because the majority of them did know little or nothing about sex before they are married off.  Frequently, they fear sex and their first sexual intercourse encounters are often forced.
In the Sudan and parts of West Africa under the Islamic laws for instance, marriage at the age of 10 or 12 years before the girl attains her puberty is common. This has been established in the case of Sudan Government vs. Sayeed Mohamed Mazin and Another (1961), SLJR, where the Major Court for Confirmation convicted Accused No. 1 Sayeed Mohamed Mazin and Accused No. 2 Muffariq Omar Mohamed , who was the father of the girl called Lahawiz respectively as follows: (i) “Sexual intercourse by a husband with his own wife is rape if she has not attained puberty u/s 316 of The Sudan Penal Code.” (ii) “Father, having the right under Sharia Law to deliver his lawfully married pre-pubescent daughter to her husband, is not an abettor to the husband’s rape because of that delivery u/s 84 of The Sudan Penal Code.”
In this case, the father (or Accused No. 2) delivered his daughter who was about 10 or 11 years old officially to the Accused No. 1. It seems that the Sudanese Islamic law encourages child marriage, otherwise there would have been no reason for the court to drop the charge of abettor from the father in the above-mentioned case.
In fact many South Sudanese still belief and support child marriage due to the notion that a girl is the source of wealth. For instance, Biel Gatmai told IPS News Agency that: “It’s better for a girl to get married at young age than to keep her in her parents’ house and she falls pregnant. If her first child is born out of wedlock, whoever marries her later will pay only few cows”.
This demonstrates that such practice of marrying young girls off before attaining their puberty will not end in this country unless poverty and illiteracy are eradicated amongst the people of South Sudan. A scenario that makes this author to concur with the Human Rights Watch (HRW) organization when they wrote:
“Child marriage in South Sudan exacerbates the country’s high levels of poverty, low levels of literacy, pronounced gender gaps in education, and soaring rates of maternal mortality – currently among the highest in the world”.
Indeed child marriage is described by Nour as a brutal custom that prevents girls from obtaining an education, enjoying optimal health, maturing and giving birth to healthy babies”(Nour: 2006).
Statistically, 52% of the young girls in South Sudan are married off before the age of 18 years, while in West African countries such as Mali and Niger, the rates reached 55% and 76% respectively (UNICEF 2014: State of the World’s Children 2015…). This shows that South Sudan could be one of the countries in Africa with the highest rates of child marriage.
Common causes across Africa that are attributed to child marriage include poverty, customs or traditions, gender inequalities and illiteracy associated with ignorant.
Worst of all, child marriage takes form of forced marriage in some parts of Africa, depending on a certain community’s traditional norms and belief – for instance, in South Africa, “ukuthwala” – is a practice by which a girl is kidnapped by a man with intention of compelling relatives of the kidnapped girl to endorse marriage negotiation. And in Ethiopia, “telefa” – is a practice by which a young man kidnaps, hides and rapes a girl and then later on he can claim marriage as a father of her unborn child. While in Togo, “trokosi” – is a practice by which a virgin girl can be offered to a local priest (witch craft or spear-master) in exchange for the forgiveness of gods when a male relative (often a man) commits a crime (www.GirlsNotBrides.org/child marriage-africa).
In the Sudan, domestics violence staged against women by their male counter-parts are fatal. For instance, in the Sudan Government vs. Ibrahim Bireima Shiteita (1968) SLJR, the Major Court for Confirmation held that: “The refusal of a wife to have sexual intercourse with her husband does not constitute a grave and sudden provocation u/s 249 (1), but guilty u/s 253 of The Sudan Penal Code.” Undoubtedly, SGBV is often common and pervasive in the conflict and post-conflict areas. In the Democratic Republic of Congo (DRC) for instance, SGBV remains unchecked despite the interventions of United Nations (UN) and application of new enacted national laws, it has reached an alarming level, described as a severe violence against women by the 2006 UN Report.
Custom other than child marriage that results in sexual violence against women does not only exist in the Republic of South Sudan but also in Zimbabwe. In the Republic of Zimbabwe for instance, “Ngozi” is a custom whereby a girl can be given to a family as compensation for a death of a man caused by a member of the girl’s family. The said girl is expected on reaching puberty to have sexual intercourse with a brother or a father of the deceased person in order to produce a son that will replace the one who died.
Similarly the above custom of compensating girl to the family of a deceased person is currently being practiced by a certain tribe called “Lotuko” or “Otuho” in some part of Eastern Equatoria in South Sudan but this author falls short to name it in their own language.
Meanwhile in Bari custom, premarital intercourse is allowed, provided that the man is prepared to marry the girl afterwards. Fornication with a girl can be allowed but on condition to marry her, while age is immaterial and shouldn’t be regarded in any case. This is because a virgin girl is absolutely considered as father’s property and no man should be allowed to copulate with her unless he is prepared to marry her by paying the dowry to her father.
This, however, has been entrenched in the case of Sudan Government vs. Rainando Legge (1963) RM, Juba, SLJR in which the Central Bari Regional Court had convicted and sentenced the accused Rainando Legge for one year imprisonment for violating the Bari custom by having premarital intercourse with virgin girl, the daughter of complainant Ibrahim Sahayer, when he is not willing to marry her in accordance with “justice, morality and order” within the meaning of s. 7(1) (a) of Chiefs’ Courts Ordinance, 1931.

WIFE INHERITANCE OR WIDOW INHERITANCE

Another custom is “Tingalohot” in Dinka (Jieng) Language which literally means “wife inheritance” in which the brother or relative of the deceased inherits the wife whose husband has died. Such custom is commonly practiced by Dinka and other tribes in South Sudan for some reasons: First and for most, a man who inherited wife of the deceased is obliged to look after the children and their mother by providing them with food and shelter. Secondly, it’s the duty of inheritor to keep or maintain the deceased’s family lineage. Thirdly, to look thereafter the property of the deceased without wasting them until his children grow old. Fourthly, children born after the death of husband by his brother or kinship relative shall be called in the name of the deceased.
This brings me to define “widow inheritance” as one of the customs or cultural social practices whereby a widow is required to marry a male relative of her late husband often his brother. Biblically, widow inheritance was found to be one of the oldest customs in form of levirate marriage, whereby an inheritor could be the sole provider of both the widow and her children. Practitioners of this custom at the times had in mind that women were responsible for house chores while men were house providers in the community.
So in a community, if the woman lost her husband she would have no one to provide services for the deceased’s remaining family. Hence, that’s why she can be forced to marry within the family bloodline, because her in-laws would not want someone outside of the family bloodline to inherit her late husband’s property or estate. The justification of this custom – widow inheritance is that it ensures that wealth does not leave the family of patrilineal and thus acts as social protection for the widow including her children.
Another form of wife inheritance is that when a married woman dies, her sister is obliged to replace her in the matrimonial home, something Zimbabwean called it – “chimutsa mapfiwa” in their own language while South Sudanese, particularly Dinka called it – “Nyan ci lokweuic” i.e. replacement of a deceased’s married woman by her sister in the matrimonial home.
Traditionally, wife inheritance and widow inheritance are all forms of marriage, also known as levirate marriage as provided for by the scripture in the Bible. Regardless of being harmful customs, still they are broadly practiced up to date due to the above-mentioned reasons.

RECOMMENDATIONS AND CONCLUSION

Furthermore, this author would like to recommend the following:
(1) The Government at all levels should enact family laws that regulate marriages of people from different denominations and those who are not Christians nor Muslims.
(2) The Government should establish institutions governing marriages in the country so that to register all marriages whether customary or religious.
(3) The Transitional Legislature, be it state or national level should also enact laws that combat harmful customs and their practices against women and girls. (4) Government must be urged to provide some mechanisms that restrict marriage of a girl-child who does not complete her studies.
(5) Government in collaboration with its partners should therefore empower girl-child education.
(6) Ministry of General Education & Instruction should develop educational policies which will favour girl-child education by exempting girls from paying their school fees across the country.
(7) Interpretation of child laws, specifically some provisions in the Child Act, 2008 through seminars and workshops to the communities at the grass root levels.
(8) Allow South Sudan Women access to report SGBV cases and other domestic violence to the law enforcement agencies without charges.
(9) Government should create conducive environment that will allow civil society and community based-organizations to sensitize civil population about the danger of child marriage and SGBV.
(10) Government and its strong partners must be urged to strengthen women organizations that will advocate for women’s rights.
(11) Finally, government should empower traditional leaders to become champions and agents of change in their chiefdoms, and to amend relevant laws and policies to ensure that girls are legally protected from early marriages.
Conclusively, these customs described above often undermine the dignity and status of women because they are harmful practices. If we’re to uphold with our Constitution, laws that combat such harmful customs and traditional practices against women and girls would have been enacted at various levels of government in conformity with the Article 16 (4) (b) of The Transitional Constitution, 2011 (amended).
In fact such continuous violations against women rights in South Sudan do not arise simply because of vacuum created by the law, but rather because the law is not fully respected and implemented by the State actors. It’s State responsibility to protect women and girls against SGBV and response to the needs of those who became victims. Such protection of women from SGBV is backed-up by key principles enshrine in international legal framework and instruments such as CEDAW, CRC, UNDHR.