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Federalism and the Challenge of Applying International Human Rights Law Against Child Marriage in Africa

Published online by Cambridge University Press:  10 July 2017

Solomon Ebobrah  and
Felix Eboibi
Solomon Ebobrah*
Affiliation:
Niger Delta University
Felix Eboibi*
Affiliation:
Niger Delta University
*
[email protected]
[email protected]
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Abstract

Federalism presents a dilemma for the implementation of international human rights law in those African states that operate federal constitutions. Central governments in these states enjoy international legal personality, make treaties and represent their states as parties to those treaties, yet internal legislative competence over some issues regulated by treaty is commonly shared between central and regional governments. Consequently, while central governments bear responsibility for transforming international standards into national law, challenges arise in areas such as the protection of children from child marriage, where they lack exclusive national legislative competence. How have these states managed to implement international law without violating their own constitutions? Applying a comparative approach, this article argues that African federal states have employed two main models to overcome the dilemma, neither of which has been totally effective. Drawing lessons from federal states outside Africa, the article suggests other mechanisms to perfect Africa's two main models.

Keywords

Child marriageconstitutionsfederalismhuman rightstreaty implementation
Type
Research Articles
Information
Journal of African Law , Volume 61 , Issue 3 , October 2017 , pp. 333 - 354
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Copyright
Copyright © SOAS, University of London 2017 

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Footnotes

*

Professor of international human rights law, Niger Delta University, Wilberforce Island, Bayelsa State, Nigeria.

**

Lecturer, Faculty of Law, Niger Delta University, Wilberforce Island, Bayelsa State, Nigeria.

References

1 See for instance Strom, TH and Finkle, P “Treaty implementation: The Canadian game needs Australian rules” (1993) 25 Ottawa Law Review 39 Google Scholar at 44. Also see Opeskin, BR and Rothwell, DR “The impact of treaties on Australian federalism” (1995) 25 Case Western Reserve Journal of International Law 1 Google Scholar for the argument that federalism creates difficulties for the conduct of external affairs.

2 Merico-Stephens, AM “Of federalism, human rights and the Holland Caveat: Congressional power to implement treaties” (2003–04) 25 Michigan Journal of International Law 265 Google Scholar at 266.

3 This is not peculiar to African federal constitutions. For instance, Opeskin and Rothwell “The impact of treaties”, above at note 1 at 2, point out that the Australian (federal) Constitution does not state if “the federal executive power extends to the making of treaties nor whether that power is exclusive of the states”. In relation to Canada, L Barnett “Canada's approach to the treaty-making process” (November 2008, publication no 2008-45-E, Library of Parliament background paper) also makes the point (at 1) that Canada's Constitution does not “explicitly delineate federal or provincial authority with respect to the conduct of international affairs”.

4 See also Barnett, id at 6; Strom and Finkle “Treaty implementation”, above at note 1 at 45.

5 MV Tushnet “Federalism and international human rights in the new constitutional order” (2001) The Wayne Law Review 841 at 850. Analysing US Supreme Court decisions, Tushnet presents the court's position as regards the first dimension that US Congress can only act if it can invoke constitutionally enumerated powers. In relation to the second dimension, Congress cannot “commandeer” state officials to implement treaty obligations. As this article shows, although the first dimension is most prominent in the context of African federations, the second dimension often arises.

6 The questions raised in this article regarding the tension between the constitutional distribution of powers and international treaty obligations do not appear to have received judicial attention in the states considered.

7 It is not uncommon to find interchanging usage of child marriage, early marriage or forced marriage as representing the phenomenon of marriage in which one or both parties fall(s) below the legal age of majority. See for instance, advocacy material from Equality Now “Protecting the girl child” (2004). This article will mostly use the term “child marriage” to capture this phenomenon.

8 See CEDAW, art 2(f). As human rights advocates have consistently argued, religious and customary laws that promote child marriage are discriminatory and harmful against girls and women who are predominantly at the receiving end since they are affected more than their male counterparts.

9 Either by succession or through accession to the treaty, no fewer than 29 African states are currently party to this supplementary convention: Algeria, Cameroon, Central African Republic, Congo, Côte d'Ivoire, Djibouti, Egypt, Ethiopia, Ghana, Guinea, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, Sudan, Tanzania, Togo, Tunisia, Uganda, Zambia and Zimbabwe.

10 The Consent to Marriage Convention has at least 12 African state parties: Benin, Burkina Faso, Côte d'Ivoire, Guinea, Liberia, Libya, Mali, Niger, Rwanda, South Africa, Tunisia and Zimbabwe.

11 (2004–09) CCJELR 217.

12 Consent to Marriage Convention, art 2. However, the second sentence of art 2 (which permits authorities to grant a dispensation) somewhat dilutes the standard set out in this instrument.

13 The African Union replaced the Organisation of African Unity in 2000.

14 In many ways, these provisions mirror the generally applicable provisions in the CRC. Insofar as states are under an obligation to ensure that children enjoy the rights guaranteed in those provisions, a duty to protect children from child marriage is incumbent on states since these rights are violated when a child is compelled to marry before maturity.

15 Shue, H Basic Rights: Subsistence, Affluence and US Foreign Policy (1980, Princeton University Press)Google Scholar.

16 See Burgess, M “Federalism” in Wiener, A and Diez, T (eds) European Integration Theory (2009, Oxford University Press) 25Google Scholar at 27. In the case of Africa, apart from Ethiopia, which was not created as a federal state by colonial forces, integration into federations was not voluntary, as federating groups were forced into a state structure created by colonizing powers with the result that devolution of powers was top-down.

17 Also see generally Dosenrode, S “Federalism” in Dosenrode, S (ed) Approaching the European Federation? (2007, Ashgate Publishing Ltd) 17Google Scholar.

18 Art 55 of the Ethiopian Constitution enumerates the matters over which the central (federal) legislative authorities can exercise competence, while art 52 gives regional (state) authorities residual authority, and thus more powers numerically.

19 Id, art 34(5) states: “This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute.” As is argued later in this article, this provision empowers the states to apply religious and customary laws in family law matters and therefore creates tension vis-à-vis the central authority's competence to enforce international human rights standards.

20 Although there is no provision spelling out the duty of each tier of government to respect the constitutional division of competence, all actors recognize that duty, and sec 9 of the Nigerian Constitution requires the involvement of state assemblies (legislatures) before any alteration of the constitution can be validly made.

21 Being a transitional constitution, this Somali Constitution does not conclusively enumerate the areas of competence of each government. However, art 54 reserves four issues for the central government.

22 See Provisional Constitution of Somalia 2012, art 2(3).

23 See South Sudanese Constitution, art 49(1)(b) and (c).

24 Although their respective constitutions have no provisions proclaiming a federal status, Kenya and South Africa are two other African states with constitutional devolution of powers in a federal or quasi-federal format. However, Kenya is not considered in this article because art 192 of the Kenyan Constitution empowers the national government to suspend a county government unilaterally. By its design, the South African Constitution does not have this kind of tension between principles of federalism and the state's international obligation. For instance, the limited powers of the provinces are further limited by fundamental rights.

25 Tushnet “Federalism and international human rights”, above at note 5 at 850.

26 See VCLT, art 27.

27 Art 73(3) and (6) authorize the Ethiopian prime minister to implement laws and policies of the central legislature and “exercise overall supervision over the implementation of the country's foreign policy” but this is arguably less than absolute authority to implement treaty obligations in spite of the constitutional distribution of powers.

28 As will become evident, this power might be both a form of empowerment and a limitation in relation to the struggle between constitutional protection of the girl child and respect for a constitutional guarantee of legal pluralism.

29 Nigerian Constitution, 2nd sched (Exclusive List), item 20.

30 Id, item 26.

31 Id, item 31.

32 Id, item 61.

33 Generally see South Sudanese Constitution, scheds A and B. It is noteworthy that sched D stipulates that residual powers shall be exercised according to their nature, with matters that cannot be regulated by a single state falling to the national government.

34 In view of the Nigerian Constitution, sec 12(2), Nigeria would prima facie qualify as an exception. However, while this provision avoids the dilemma of the constitutional division of powers, it does not overcome the challenge of legal pluralism.

35 252 US 416, 40 S Ct 382 64 L Ed 641 (1920).

36 Ibid.

37 See Tushnet “Federalism and international human rights”, above at note 5 at 850.

38 See White, AE “Female genital mutilation in America: The federal dilemma” (2001) 10 Texas Journal of Women and the Law 129 Google Scholar at 144–45.

39 Id at 146–47. White makes the point (id at 166) that “the Supreme Court in other contexts has emphasized the traditionally exclusive state dominion over local crimes”.

40 Id at 192.

41 Paust, JJ “Human rights purposes of the Violence Against Women Act” (2000) 22/2 Houston Journal of International Law 209 Google Scholar at 213–14.

42 Cited by Tushnet “Federalism and international human rights”, above at note 5 at 861.

43 Partly reproduced in (1937) 31/2 American Journal of International Law 348.

44 See Barnett “Canada's approach”, above at note 3 at 1 and 6.

45 Labour Conventions case, above at note 43 at 348.

46 The bench comprised Lord Atkin, Lord Thankerton, Lord Macmillan, Lord Wright and Sir Sidney Rowlatt.

47 Labour Conventions case, above at note 43 at 349 and 356. The Privy Council also rejected the argument that sec 91, which gives Parliament power to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces (“residual power”), could sustain Parliament's action.

48 Id at 352.

49 Strom and Finkle “Treaty implementation”, above at note 1 at 42.

50 See Opeskin and Rothwell “The impact of treaties”, above at note 1 at 2.

51 See Strom and Finkle “Treaty implementation”, above at note 1 at 48; Opeskin and Rothwell, ibid.

52 [1936] ALR 482; 55 CLR 608.

53 Strom and Finkle “Treaty implementation”, above at note 1 at 49.

54 Opeskin and Rothwell “The impact of treaties”, above at note 1 at 10.

55 Id at 11.

56 (1982) 153 CLR 16. In the related case of Queensland v Commonwealth of Australia (1982) 39 ALR 417 at 420, Queensland sought a declaration that the Racial Discrimination Act exceeded the Commonwealth's legislative power even though it did not claim a conflict between the act and any Queensland law; see Howard, C “ Koowarta v Bjelke Petersen and Others; Queensland v Commonwealth of Australia: External affairs powers” (1982) 13 Melbourne University Law Review 635 Google Scholar.

57 Strom and Finkle “Treaty implementation”, above at note 1 at 50.

58 See C Howard's case note on the two cases: Howard  “Koowarta”, above at note 56 at 636.

59 UN HRC comm 488/1992, CCPR/C/50/488/1992 decision of 4 April 1994.

60 As quoted by Opeskin and Rothwell “The impact of treaties”, above at note 1 at 52.

61 Ibid.

62 As will be shown, some states combine both approaches in their practices.

63 As will become evident, South Sudan and Sudan arguably adopt a blend of both models.

64 See Nigerian Constitution, chap IV.

65 Hence, see the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act of Nigeria LFN, 2010, which is one of the few international human rights treaties that have been domesticated into national law.

66 The two main treaties in this regard are the CRC (ratified in 1991) and the African Children's Charter (ratified in 2000). The act is a comprehensive piece of legislation that covers a wide range of issues relating to the rights of children.

67 CRAN, sec 277 sets 18 years as the marriageable age in Nigeria.

68 See Tushnet “Federalism and international human rights”, above at note 5 at 850.

69 See CRAN, sec 45.

70 Id, sec 177.

71 Id, sec 188.

72 Id, sec 264.

73 Id, sec 203.

74 Although, there is a single (federal) police force in Nigeria responsible for investigating and prosecuting offences under the Federal Criminal Code Act and the state criminal code laws, most everyday offences are prosecuted in the state courts. Very few (mostly technical) criminal prosecutions take place in the federal courts of original jurisdiction.

75 See for instance, Akinwumi, OS “Legal impediments on the practical implementation of the Child Right Act 2003” (2009) 37/3 International Journal Legal Information 385 Google Scholar, who argues (at 391) that “until the Child Right Act is enacted into law in each of these legislative systems, it is not binding on the states”. See also Braimah, TS “Child marriage in northern Nigeria: Section 61 of part 1 of the 1999 Constitution and the protection of children against child marriage” (2014) 14 African Human Rights Law Journal 474 Google Scholar at 481.

76 Federal Courts Proc no 25/1996.

77 Ratified by Ethiopia on 27 December 2002.

78 Ratified by Ethiopia on 10 September 1981.

79 Although the authors found no evidence that this has ever happened, they are conscious of the limitations of their own research as external researchers.

80 This is arguably inspired by an equivalent formulation in the UDHR.

81 See Ethiopian Constitution, art 78.

82 Essential Conditions of Marriage Code, sec 2 includes requirements of consent and age.

83 Art 7(1) of the revised Family Code provides that a person who has not attained the age of 18 cannot marry, while art 626 of the Ethiopian Criminal Code prohibits sexual intercourse with a child between 13 and 18 years. Art 627 prohibits sexual intercourse with persons under 13 years as “sexual outrages committed on infants”.

84 See Ethiopian Constitution, art 51.

85 See Child Act of South Sudan 2008, secs 2, 24 and 26.

86 See for instance, McDonald, SA “The problem of treaty-making and treaty implementation in Canada” (1981) 19 Alberta Law Review 301 Google Scholar. Also see Opeskin and Rothwell “The impact of treaties”, above at note 1 at 2, who see this as a practice of cooperative federalism.

87 Doherty, R “Foreign affairs v federalism: How state control of criminal law implicates federal responsibility under international law” (1996) 82/7 Virginia Law Review 1261 CrossRefGoogle Scholar at 1336.

88 Taylor, G “Germany: The subsidiarity principle” (2006) 4/1 International Journal of Constitutional Law 115 CrossRefGoogle Scholar.

89 See “Prohibition of Child Marriage Act to prevail over personal laws: HC” (25 September 2015) The Indian Express, available at: <indianexpress.com/article/ cities/ahmedabad/prohibition-of-child-marriage-act-to-prevail-over-personal-laws-hc> (last accessed 18 May 2017), reporting that the Gujarat High Court in India ruled that the Prohibition of Child Marriage Act, 2006 prevails over Muslim personal law.