By: Liv Tønnessen
Each year, 15 million girls are married before the age of 18 and Sudan has one of the highest rates of child marriage among African countries.i In Sudan, 10.7% of women aged 15 to 49 are married before the age of 15, and 38% are wed before the age of 18.ii
While approximately two-thirds of African countries have legislated a minimum age of marriage at or above 18 for both sexes, government actors in Sudan have recently put the issue on their legislative agenda. The Sudanese government’s attempt to set the minimum age of marriage at 18 years has prompted counter-mobilisation by religious conservatives saying the practice of child marriage is sanctioned by Sharia. It has also received criticism from the women’s movement in Sudan claiming that this reform is insufficient to legally protect girls. iii
1991 Muslim Family Law: Legalising Child Marriage in the Name of Sharia
The Muslim Family Law of 1991 made child marriage legal and encouraged its practice. Conservative Islamists, Salafists, and some religious scholars argue that child marriage prevents illicit sexual relations.iv Sex before marriage is forbidden in Islam, and since girls develop sexual urges at puberty, they claim, early marriage is the Islamic solution to deal with the risk of fornication. From an Islamist point of view, the sexual chaos (fitna) of modern-day societies can be traced back to the abandonment of child marriage in the West. Child marriage ensures that sexual relations happen only within marriage. According to them, puberty or sexual maturity is the appropriate age of marriage. To support their claim, they point to a hadith,v reporting the Prophet Muhammad’s betrothal to Aisha when she was six-years-old. Evidence suggests that He did not consummate the marriage until she was at least nine-years-old and had reached puberty.
Legal Contradiction on Child Marriage
There are critical contradictions between the Muslim Family Law, on the one hand, and the National Child Act (2010), the 2005 Constitution, and the Convention on the Rights of the Child (CRC) on the other hand.vii The National Child Act stipulates that, in accordance with the CRC, childhood ends and adulthood begins at the age of 18. Within Muslim Family Law, however, the age of marriage is ‘maturity.’ While the 1991 law stipulates that both parties have to consent to marriage, it also requires the marriage of a mature woman to be validated by a male guardian (wali). Further, it explicitly allows the male guardian to contract a ‘discriminating [minor]’ in marriage in cases of an ‘overriding interest’ and with the permission of the judge. Here, the law does set a specific age, providing that ‘discrimination is achieved at the age of ten’ and thus effectively making 10 the minimum age at which a person can be contracted in marriage.viii
Prospects for Government Reform: Minimum Age of Marriage at 18
The National Child Act of 2010 was the first step in the process of raising the minimum age of marriage in Sudan. It defined childhood as extending to the age of 18, a significant milestone and one that was highly controversial given that in Islamic jurisprudence (fiqh), the age of marriage is traditionally set at puberty. In Islamic legal terminology, bulugh refers to a person who has reached maturity or puberty. For a girl, bulugh is attained when she begins menstruating or at earliest when she reaches the age of nine.
Islamist reformers who pushed for setting 18 years as the threshold for adulthood believe that this position does not contradict either Islam or the 2005 Constitution. Rather, they rely on a more progressive Islamic interpretation of maturity to argue that the legal reform conforms to Sharia, to the bill of rights in the Constitution, and to the CRC. In all Sunni law schools, to acquire legal capacity and to be able to enter contracts, a person must attain a condition called rushd, or the intellectual maturity to handle one’s own property and affairs.ix According to Islamist reformists, bulugh (puberty/sexual maturity) without rushd (intellectual maturity) does not create the legal capacity to enter into a marriage contract. Further, they are advocating that the minimum age of marriage, taking both bulugh and rushd into consideration, should be set at 18. In an interview, Amira al-Fadil, reform advocate and former Minister of Welfare and Social Security, explained their reasoning:
Eighteen years as a minimum age for marriage does not contradict Sharia law. Muslim scholars have given us a fatwax that supports 18 as a minimum age of marriage. […] Bulugh is an Islamic term that refers to a person who has reached maturity and has full responsibilities under the law. But maturity in Islam should not go hand in hand with physical signs of puberty (sexual maturity), but rather intellectual maturity. And there is no reason why intellectual maturity cannot be set at 18 years.xi
According to interviews with government reformers, it was an outspoken strategy not to explicitly include a minimum age of marriage in the 2010 Child Act, because it was regarded as too controversial. However, as the Child Act does include provisions protecting children against all forms of discrimination in article 5(c), reformers argued that the practice of child marriage is covered. Moreover, the National Child Act takes precedence over all other laws. For example, article 3 states that “the provisions of this Act shall prevail over any other provision in any other law, upon inconsistency thereof, to the extent of removing such inconsistency.” In the views of reformers, this meant that a reform of the 1991 Muslim Family Law would follow as a natural second step, setting 18, established as the age of adulthood under the Child Act, as the minimum age of marriage. If child marriage is considered a form of discrimination, it clearly contradicts the 2010 Child Act. The reformers thus attempted to slip child marriage reform in through the back door in hopes that counter-mobilising actors would not take notice.
However, the reform process became much more problematic than government reformers anticipated. Once embedded within the context of family law reform and women’s rights – rather than children’s rights – child marriage quickly became controversial and contested. It prompted counter-mobilisation by conservatives within and outside of the ruling Islamist party, but also extensive critique from the women’s movement.
Counter-Mobilisation from Religious Conservatives
Conservatives were indeed quick to oppose any changes to child marriage when government reformists started to challenge their interpretation of Sharia. The counter-mobilisation effort included public statements in the media and in parliament by both politicians and religious scholars, as well as litigation. Among the most active opponents was the conservative bloc within the ruling National Congress Party headed by former Member of Parliament Dafallah Hassabo, who has strong ties to the Salafist movement.xii In his opinion, “according to Islam, a girl can give consent to marriage at puberty.”xiii He and his followers attempted, among other actions, to side-line government reformers in parliamentary debates and the media. In particular, Amira al-Fadil was accused of blindly following a Western agenda and of becoming, in the process, a secularist, a term with negative connotations in the Sudanese context.
Religious authorities, including one of Sudan’s prominent clerical councils, also quickly mobilised against child marriage reform.xiv For example, the chair of the Religious Scholars Committee, Mohamed Osman Salih, publicly endorsed girl marriage and is reported to have stated that “Islam encourages youth to marry to save them from perversion or any dangers of being single, to make them happy, and to preserve reproduction.”xv Despite the efforts of the reformers, the opposition to raising the legal age of marriage to 18 remains strong, with conservative actors even demanding that the 2010 National Child Act be invalidated.
Critique from the Women’s Movement
While Sudanese women activists support raising the minimum age of marriage to 18, they argue that it should be embedded within a comprehensive reform of the Muslim Family Law of 1991. One of the leading NGOs active in the campaign for legal reform is the Sudanese Organization for Research and Development (SORD), which is part of the global campaign Girls Not Brides. In the view of women activists, child marriage is violence against women as defined by the Declaration on the Elimination of Violence Against Women (1993), and comprehensive family law reform is key to its eradication. Women activists initiated debate on the discriminatory aspects of the Muslim Family Law in the early 2000s.xvi Several years ago, SORD drafted an alternative family law, known as the Adila Law, aimed at promoting gender equality in support of women’s civil rights.xvii Women activists claim that several aspects related to marriage law need revision. They insist that merely raising the minimum age of marriage, as the Islamist reformers are proposing, will have little effect in itself as long as the Muslim Family Law stipulates that a male guardian has the authority to contract both adult women and minor girls in marriage. Unless a woman can contract herself in marriage, genuine consent will never be attained. Further, Muslim Family Law does not allow for the ‘option of puberty’ (khiyar al-bulugh), common in Hanafi fiqh.xviii If it did, a girl who had reached maturity could reject the marriage contracted on her behalf while she was a minor. In the opinion of Asha el-Karib, the leader of SORD, “the crucial point concerning child marriage is to get rid of wilaya, the male guardianship.”xix
Although women activists have welcomed the government’s move to legislate 18 as the minimum age of marriage, they remain critical of the reform claiming that it will have little or no effect unless male guardianship in marriage is abolished.
Liv Tønnessen is Research Director at Chr. Michelsen Institute (CMI), Bergen, Norway. She is a political scientist researching women, politics and Islam in the Middle East and Northern Africa and has published international peer reviewed articles with publishers like Duke University Press, Routledge, Brill, Oxford University Press, Palgrave Macmillan, and Taylor Francis.Tønnessen has specialized in Sudanese politics for more than a decade. She has conducted extensive fieldwork in the country in addition to lecturing at Ahfad University for Women in Omdurman, Sudan.