She’s only 12: Her father plans to marry her off during holiday—What does the law say?
A 12-year-old girl to be married off by her father.
What you need to know:
- Reporting a planned child marriage could save a life—police, activists, and the law are on your side.
- Child marriage is violence disguised as tradition; protect girls’ rights to education, dignity, health, and a real childhood.
Dear Vivian,
I live in a neighbourhood deeply rooted in cultural practices. Proponents of this culture believe that young girls can be married off to older men. I have overheard that my neighbour wants to marry off his 12-year-old daughter when she is on school break in August. What can I do and what does the law say about such situations?
Naserian Tepilit,
Samburu
Dear Naserian,
First, what your neighbour is planning is not just morally outrageous but also criminal. The law stipulates that no child can be married off under any circumstance. Article 260 of the Constitution defines a child as anyone under 18. Additionally, the Constitution protects every child from abuse, neglect, and harmful cultural practices while restricting marriage to adults.
Further, the Children Act prohibits child marriage and any cultural or religious practices that harm the child’s health, dignity, or development. A person who contravenes this law commits an offence and shall, upon conviction, be liable to imprisonment for a term of not less than three years or to a fine of not less than Sh500,000, or to both. This is reinforced by the Marriage Act, which provides that no person under 18 can marry and that such marriages are void.
While Kenya has implemented a robust legal framework to combat child marriage, gaps in enforcement and cultural norms persist. Statistics indicate that 23 per cent of girls are married before 18, with poverty, gender inequality and female genital mutilation as major drivers.
Therefore, whistleblowing on such practices is the right cause of action. You should report the matter immediately at the nearest police station’s gender desk as well as community-based organisations that could spearhead rescue. The Constitution places the duty to protect children squarely on the state, but citizens like you are essential in flagging abuse before it happens.
Notably, you could also contact the Cradle Children’s Foundation. They are well known for responding to cases of child rights violations and work closely with government agencies to ensure children's safety. Reports can be made anonymously, but try to provide details that will help protect the girl.
The courts have consistently condemned early marriage, even where culture or religion is cited. In Council of Imams & Preachers of Kenya & Others v Attorney General & Others, the court ruled that no child can legally marry under custom or Islamic rites. The judges held that such practices cannot override constitutional and statutory protections under Article 53 and Section 23 of the Children Act.
This was also affirmed in SW v Republic (2016). A father who facilitated the marriage of his underage daughter was convicted and fined. The older man who married her was sentenced to 10 years in prison for committing an indecent act with a child. The court held that early marriage is child abuse and any parent enabling it is legally responsible.
There is nothing cultured about exploiting children. At its core, child marriage is a form of violence against children that denies girls their fundamental rights to health, safety and education.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
