Forced Marriage, Slavery, and Plural Legal Systems: An African Example

Author: Sarich, Jody; Olivier, Michele & Bales, Kevin

Abstract: Slavery, long abolished under international law, left a devastating imprint on Africa. However, enslavement of women through forced marriages remains a common phenomenon in many African states. These African states share the common feature of legal pluralism where traditional legal systems continue to be observed alongside national laws in which slavery is outlawed. Where traditional practices condone the marriage of underage girls who are legally unable to consent, the questioning of age-old accepted forms of marriage can generate strong reactions. This article traces the position of forced and child marriages in international law, and investigates how legality becomes a moveable target when legal systems exist in parallel. Despite international and African Union conventions on slavery and human rights declaring that marriages not based on the full and free consent of both parties are considered a violation of human rights and a form of slavery, these practices persist. These instruments are assessed to gauge the level of conformity (or variance) of African state practice where forced marriages commonly occur. Importantly, the reasons behind noncompliance and the impact of legal pluralism are explored in African states where forced marriages commonly occur.

Keywords: forced marriage, slavery, plural legal systems, international law, Africa, African Unions