70. With regard to the Respondent
State's allegation that the biological and
psychological conditions of marriage are in place at age 15 for the girl, the
Applicants submit that these assertions are contrary to the jurisprudence of the
African Committee of Experts on the Rights and Welfare of the Childa, the
Committee on the Elimination of Discrimination against Women5 and the
research conducted into the disadvantages of early marriage.
***
71
Article 2 of the Children's Charter defines a child as "every human being below
the age of 18 years"
72'Article 4(1) stipulates that "ln all actions concerning the child undertaken by any
person or authority the best interests of the child shall be the primary consideration".
T3.Article 21 of the same Charter stipulates that: "State parties ...shail take all
appropriate measures to eliminate harmful social and cultural practices... and those
customs and practices discriminatory to the child on the grounds of sex or other status,'.
T4.Article 6(b) of the Maputo Protocol provides that: "states Parties shail ensure that
women and men enjoy equal rights and are regarded as equal partners in marriage.
They shall enact appropriate national legislative measures to guarantee that: b) the
minimum age of marriage for women shall be 1g years...,,
75.The Court notes that the afore-mentioned provisions focus on the obligation for
States to take all appropriate measures to abolish negative practices and
customs as well as practices discriminatory to children born out of wedlock for
reasons of their gender, especially measures to guarantee the minimum age for
marriage at 18 years.
76.The Courtfurther notes that, as indicated in paragraphs 67,6g and 6g above,
the Respondent State implicitly admits that the present Family Code, adopted in
for Human Rights and Rencontre Africain pour la Ddfense des Drolfs de I'Homme
v. Senegal
(20 14), ACRWC 003112, para.71
5
GeneralRecom
No.21 1994 (Comm ittee 21), para. 36.
l,
g