Early marriage is a form of trafficking

Any person under 18 years old who is recruited, transported, transferred, harboured or received for the purpose of exploitation is considered to be a victim of child trafficking.

Early marriage is a violation of human rights and a global challenge which impacts on millions of children worldwide. Girls are married at an early age considerably more than boys – more than 700 million women alive today were married as children (UNICEF 2014). It means that at least around 11 % of the world’s population has been married as children. This is around 17 times the population of Kenya or the total population of Europe. Early marriage is often seen as linked to trafficking, but not a form of child trafficking. It seems to be unclear if early marriage should always be considered as child trafficking.

Counter Trafficking in Persons Act (2010) includes the legal definition of human and child trafficking in Kenya;

1. A person commits the offence of trafficking in persons when the person recruits, transports, transfers, harbours or receives another person for the purpose of exploitation by means of— (a) threat or use of force or other forms of coercion; (b) abduction; (c) fraud (d) deception; (e) abuse of power or of position of vulnerability; (f) giving payments or benefits to obtain the consent of the victim of trafficking in persons; or (g) giving or receiving payments or benefits to obtain the consent of a person having control over another person.
2. The consent of a victim of trafficking in persons to the intended exploitation shall not be relevant where any of the means set out in subsection (1) have been used.
3. The recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set out in subsection (1).
4. An act of trafficking in persons may be committed internally within the borders of Kenya or internationally across the borders of Kenya.

The term early marriage is often used when a person has not reached the age of 18, but is not under the national laws considered a child anymore. According to the Counter Trafficking in Persons Act (2010) a child shall mean any person under 18 years of age.

(3) The recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set out in subsection (1), furthermore the consent of a child makes no difference when determining whether early marriage fulfils the criteria of child trafficking. In other words, any person under 18 years old who is recruited, transported, transferred, harboured or received for the purpose of exploitation is considered to be a victim of child trafficking – and in early marriage the children are always at least received by their spouses. Hence, we should look at the purpose of early marriage – are children married for the purpose of exploitation?

Most commonly children are married for the purpose of financial and social benefits of the families, sexual exploitation and domestic servitude. Usually in cases, where especially girls, are married “for their own benefit” the culture places a high value on a girl’s virtue in relation to morality and honour and determines that for a girl it is more important to become a wife and a mother than to get an education and economic opportunities. It is denied that early marriage is always harmful for the child (see for exp. UNICEF 2005) and that the children are neither emotionally nor physically ready to become wives or mothers. Early marriage is strongly rooted in gender based discrimination and leads to physical and psychological abuse, sexual exploitation, domestic violence and servitude, denial of education, and even denial of freedom of movement. Early marriage violates the rights guaranteed to children under international law, particularly the United Nations Convention on the Rights of the Child. The benefit of someone else (other than the child’s) is at the core of early marriage, no matter how “necessary” or justified it is. Early marriage should be always considered as child trafficking, because early marriage always occurs for the purpose of exploitation.

However, convincing parents and communities not to support early marriage is difficult – early marriage is seen as a part of traditions and religions – but it is possible. One step forward would be the change of entrenched attitudes and discourses and defining early marriage always as child abuse, exploitation and child trafficking. Local communities should be made aware of children’s rights and the harmful consequences of early marriage to the child’s development and future. Married children (and adults who were married as children) should receive protection and assistance as victims of child trafficking.

By Pauliina Sillfors