where a child is not permitted to refuse or leave a union or marriage, his or her
rights to participation, freedom of expression and freedom of movement (article
9 of the African Children’s Charter) are rendered nugatory.
[14] Having regard to the overall purpose of the African Children’s Charter and
to the primacy of the principle of the best interests of the child, a child’s right to
participate in decisions and matters affecting them shall not be used to justify any
exception to the minimum marriageable age of 18 years. For a number of reasons,
a child might express an interest in forming a union or entering into a marriage
before the age of 18. Although a child has the right to express these views, pursuant
to Article 7 of the African Children’s Charter, and should be afforded an opportunity
to communicate such views in matters affecting them, the best interests of the child
require that no exceptions to the minimum marriageable age of 18 can be tolerated.
E.
Interrelatedness of children’s and women’s rights
[15] In addition to the principles outlined above, the authoritative guidance
offered in this Joint General Comment is grounded in the principle that rights
are interrelated. This principle requires that a determination as to the meaning,
content or ambit of the prohibition of child marriage in the Maputo Protocol
and the African Children’s Charter requires a simultaneous consideration of the
overall purpose and objective of these two instruments and the totality of rights,
freedoms and provisions they enshrine. Any determination must then be one that
is consistent with the overall objectives and purposes of the instruments and must
prefer an interpretation that results in maximal realisation and enjoyment of the
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