Teenage Pregnancy in Sierra Leone
Presentation by Jamesina King, Commissioner, Human Rights Commission of Sierra Leone at the Traditional and Religous Leaders Forum on Teenage Pregnancy and Child Marriage at Bintumani Hotel on 14th -15th May 2013 on the topic “The law in relation to adolescent sexuality –Implication for the reduction of teenage pregnancy and child marriage” (Photo credit: Unicef)
This presentation will cover working definition of terms in the topic, State obligations, review of some relevant national laws, challenges in addressing teenage pregnancy and child marriage and make recommendations on the way forward.
You will agree with me that 20 minutes is really insufficient to exhaustively deal with this topic but I will do my best to stimulate a lively discussion on the issue and provoke creative thinking on the way forward. Traditional leaders and Religious leaders are well placed in an enabling environment to collaborate with Government, CSOs, CBOs, NGOs to promote the well being of everyone particularly women and children, State Institutions and the International Community to prevent child marriage and teenage pregnancy so that we will attain the well being and full development of our greatest resource – our leaders in waiting: the young generation.
As we all know the law plays a very important role in society and culture and religion has influenced state laws and practice in the localities. The focus of this conference is the reduction or maybe elimination of teenage pregnancy and child marriage and recognizing that such a goal requires a multidimensional strategies and approaches to attain it, it is timely that we now turn our attention to the law and to see what it says about the topic.
To be able to do that we need to first of all have a working definition of the broad terms in the topic and see how they are referenced in the laws of Sierra Leone and under international human rights law. The broad terms in the topic are “adolescent”, “sexuality”, “teenage pregnancy” and “child marriage”.
“Adolescent” – this word is closely related or associated with teenage years and is the transitional period between children and adulthood.
“sexuality ” – the quality or state of being sexual, having or involving in sex and to a certain extent reproduction, concern or interest in sexual activity, expression of sexual receptivity, demonstrating a sexual character.
“Adolescent sexuality” – refers to sexual feelings, behaviour, and development in adolescents and is a stage of human sexuality. Sexuality is a vital aspect of teenager’s lives.
“Teenage pregnancy” – it is a situation which involves female adolescents. A teenage female can be pregnant as early as age 12 or 13 but it is usually 14 and older.
“Child marriage” – sometimes referred to as forced or early marriage whereby children usually females are given in matrimony and before marriageable age which is the age at which a person is allowed to marry either as a right or subject to parental or other forms of consent.
The law is a rule of action to which people obligate themselves to conform via their elected representatives and other officials and it governs every aspect of our lives. Law is also a method for the resolution of disputes. In this presentation attention will be drawn to laws that relates to the prevention, reduction and elimination of teenage pregnancy and child marriage and other associated harms.
The laws of Sierra Leone[i] comprise of the 1991 Constitution, laws made by Parliament, any orders, rules, regulations and other statutory instruments made by any person or authority pursuant to a power conferred by the Constitution or any other law, the existing law (written and unwritten laws) and the common law (which includes customary law which are the customs applicable to particular communities in Sierra Leone). Whenever law is mentioned, it includes any instrument having the force of law made in exercise of a power conferred by law, customary law and any other unwritten rules of law[ii].
DUTIES AND OBLIGATIONS OF THE STATE
Adolescents or teenagers are people, human beings, persons, individuals, and citizens, right holders requiring recognition, protection and provision by the State. They have a right to life, liberty and security, right to information, right to be protected from torture or cruel treatment, right to health, right to education etc. The State is under a duty to respect, protect and fulfil the rights of adolescents or teenagers and it does so through national policies, laws, international and regional conventions and treaties which it ratifies. Laws relating to the care, welfare, growth, development and protection of children and young persons which meets international standards ratified by the State when implemented and enforced will definitely reduce or eliminate teenage pregnancy and child marriage. The common elements of teenage pregnancy and child marriage are that it involves a female child, sexual activity and some form of violence commonly called gender based violence.
Public officials may violate children’s rights when they fail to adopt and implement laws for their development and protection guided by the best interest of the child principle. They can be made to account by Parliament, the courts, the Human Rights Commission and in their reports to the U.N, Human Rights Council and other UN monitoring committees of international conventions Sierra Leone has ratified. Donors and development partners may include specific benchmarks to be fulfilled by the State related to the rights of girls and young persons.
REVIEW OF SOME NATIONAL LAWS THAT ARE RELEVANCE TO REDUCTION OF TEENAGE PREGNANCY AND CHILD MARRIAGE
PROTECTION OF WOMEN AND GIRLS ACT 1960 (PASSED IN ENGLAND ON 23RD APRIL 1927)
- This Act makes it an offence to procure or attempt to procure any girl or woman under 21 years not being a common prostitute or of known immoral character for illegal sexual purpose in or out of Sierra Leone.
- It is an offence to procure any woman or girl by threats or intimidation to engage in illegal sexual activity.
- Any person convicted of the above will be imprisoned not exceeding 2 years with or without hard labour.
- No person shall be convicted of an offence upon the evidence of one witness unless such witness is corroborated in some material particular by evidence implicating the accused.
This law is problematic and discriminatory as it linked the crime committed to the moral character of the victim. If a girl or woman was reputed to be a prostitute or immoral she was not protected. Punishment was minimal and the evidence of 1 witness was insufficient to convict the accused.
PREVENTION OF CRUELTY TO CHILDREN CAP 31 1960 (PASSED IN ENGLAND ON 24TH DECEMBER 1926)
- Under this law a child means a person under 16 years.
- Unlawful carnal knowledge of a girl under 13 years whether with or without her consent is an offence punishable with or without hard labour for a period not exceeding 15 years.
- Unlawful carnal knowledge of a girl above 13 years but under the age of 14 years with or without her consent is an offence punishable with or without hard labour for a period not exceeding 2 years.
- Indecent assault and attempts to have illicit sex with a girl under 14 years was punishable for not more than 2 years
- Procuring a child who was not a prostitute or immoral to have illicit sex was punishable for a period not exceeding 2 years.
- The same punishment applied for any person who had the custody, charge or care of a child and encouraged that child to be seduced or to prostitute or engage in illegal sex
- Again no person can be convicted for any of the above offences on the evidence of one witness unless such witness is corroborated by evidence implicating the accused.
- It was a defence if you can show that the victim or person was above the age required by the Act or if the accused can shoe that he had reasonable cause to believe that the girl was of or above that age, or if the accused was married or was under the belief that he was married to his victim.
- The Act provides for the protection of children who with their parents or guardians knowledge are exposed to the risk of seduction, prostitution or illicit sex by asking parent or guardian to enter into a recognisance to exercise due care and supervision in respect of the child.
- This has been the law used to prosecute almost all sexual offences relating to children. The prosecution proceedings start with a preliminary investigation in the Magistrate Court and if there is some evidence justifying a trial it is committed to the High Court for trial.
- An accused can only be summarily convicted of offences under the Act or similar offences against children under the Offences against the Person’s Act if the report against him was made six months within which the act was committed.
The sexual offences relating to children under this law and by implication the defences have been repealed by the new 2012 law which will be discussed later in the presentation but the other provisions still remain.
Since independence the above was the status of the law in relation to protection of children and young people teenagers and not much prosecution of sexual offences against children because of the culture of silence, impunity and the difficulties encountered with prosecution. Patriarchy, tradition and culture discriminating against women and girls and incorporated into customary law as well as the stigma attached to such crimes became additional disincentives to report or prosecute them. Victims and their families suffered in silence and out of court settlements were done with the perpetrator. In most cases he was asked to marry the child particularly in customary and traditional settings or he financially compensated the victim’s family.
Sexual offence against children which had been happening before the war intensified during the war perpetrated by sometimes family or community members and also outsiders but within the context of the war. This brought to the fore the experience of girls who experienced terrible forms of brutality of a sexual and gendered nature and the international community and civil society organizations mounted pressure to address these crimes against women and girls in transitional justice mechanisms and post conflict reconstruction of governance, security and justice sectors. This resulted in the establishment of the Family Support Unit of the Sierra Leone Police to address its failure in protecting women and girls from violence. I hope the above discussion of the old laws has given us some clue as to some of the difficulties in prosecuting sexual crimes and leading to the State’s failure to address impunity and protect women and girls from sexual violence.
The Three Gender Justice Laws
Much later in order to bring the country laws in conformity with CEDAW ratified by Sierra Leone, the 3 gender justice laws were enacted by Parliament in 2007. They were the Registration of Customary Marriage and Divorce Act now of 2009, the Domestic Violence Act 2007 and the Devolution of Estates Act 2007 in a bid to domesticate certain provisions of CEDAW.
The Registration of Customary Marriage and Divorce Act was intended to end early, forced and child marriages permissible under Customary law and to protect women who marry under this law. It introduced for the very first time a legal requirement to register all marriages contracted under that law and to provide marriage registration certificates to the parties similar to registered certificates given to their counterparts who contracted Civil, Christian or Muslim marriages. It stated that no marriage will be valid unless both spouses are not less than 18 years old and consent to it. This is inconformity to all the international and regional conventions that Sierra Leone has ratified and agreed to domesticate.
Subsequent subsections inserted in this law allowing persons less than 18 years to marry with the consent of their parents, guardian or a Magistrate or Local Government Chief Administrator has led to much confusion. These subsections fell short in reflecting the true intention and enactment by Parliament as it included contradictory provisions inconsistent with its intent and with CEDAW. This confusion was partly resolved or managed in favour of the protection of the girl child by section 34 of the Child Rights Act which unequivocally stated that the minimum age of marriage of whatever kind shall be 18 years and that no person shall force a child to be betrothed, to be the subject of a dowry transaction or be married. Any person who contravenes this law commits an offence and liable on conviction to a fine not exceeding Le30 Million or to imprisonment not exceeding 2 years or both. There is still a need for the necessary amendments to the offending subsections in the Registration of Customary Law and Divorce Act and I want to urge the Ministry of Social Welfare Gender and Children’s Affairs to do so as soon as possible.
Domestic Violence Act
This law criminalizes violence within a domestic relationship or setting and among others it protects children (persons below 18 years) from such violence and for purposes of this presentation particularly those of a sexual nature such as sexual abuse whether married or not, or a sexual contact with a person who is aware of his HIV or STD infection without letting the other person being given prior information of the infection, sexual harassment, conduct that will endanger the health, safety and well being of a person, undermines another person’s privacy , security or integrity, detracts or likely to detract from another person’s worth.
Significantly persons likely to sexually abuse a child can be charged for an offence under this law. These are offenders who are married, engaged, in courtship, or have a close or cordial relationship with the complainant, offender is a parent, family member, share or shared the same residence, or co-tenants, or where the complainant is a house help in the household of the offender, lives in or attends a public or private institution and is under the control and care of the offender or in a domestic relationship determined by the court.
This law allows complainants to apply for civil protection orders to prevent the other person from carrying out the domestic violence threat.
For those child marriage survivors who are now or will be widows, which is often the case because their husbands are much older than them the Devolution of Estates Act is most useful. It gives spouse equal rights of distribution of their deceased spouses property and makes it an offence to evict a widow from her matrimonial home.
The reality is that a good portion of teenagers who fall pregnant voluntarily undertook sexual activity that led to their pregnancy and this has to be addressed. I will not want to go into the reasons responsible for a teenage girl to voluntary engage in sexual activity as that will be going outside my mandate. I firmly believe that as traditional and religious leaders you have what it takes to promote the intellectual, spiritual well being of not only teenagers but children, parents and elders in the society and having the law supportive of an enabling environment will support you in achieving that goal provided it meets international standards to promote and advance the best interest of the child.
But the greatest aid by law to reduce teenage pregnancy and child marriage will be those laws that recognize and promote the development of adolescents both male and female and I will refer to a few.
OTHER LAWS FOCUSED ON THE DEVLOPMENT OF ADOLESCENTS WHICH WILL CONTRIBUTE TO POSITIVE OUTCOMES IN THEIR SEXUALITY INCLUDES THE FOLLOWING:
- The Child Rights Act – in its entirety
- The Education Act 2004: section 2(2) states that the Education System shall be designed to rapidly enhance literacy and improve educational opportunities for women and girls, rural area dwellers and those disadvantage in acquiring formal education.
- The Anti Human Trafficking Act
- The Local Development Act 2004 – the making and publication of a development plan
- Registration of Births and Deaths Act
- Youth Commission Act
Sexual Offences Act 2012 signed on the 9th of October 2012 – A ground breaking legal tool to address teenage pregnancy and child marriage
- Unlike our old laws this law protect all children under 18 from sexual abuse. This law puts an end to the controversy over the capacity of children to give consent to sexual activity. It says that for the purposes of the Act persons below 18 are not capable of giving consent and it shall not be a defence to show that the child has consented. This is saying that below 18 should not engage in sexual activity. This will involve a big change in our mindset by the entire society.
- Marriage of a defendant and the victim shall not be a defence to an offence under the Act.
- The offences under this law include rape, indecent assault, causing a person with a mental disability to engage in sexual activity, incest, harassment, indecent exposure, causing or inciting prostitution, production, publication and distribution of indecent material.
- It has specific offences involving children and this include sexual penetration of children, sexual touching of children, sexual activity in the presence of children, causing a child to watch sexual activity and meeting a child for sexual purpose. It is a defence to these offences if court is satisfied that before the act he or she took steps to find out whether the child concerned was over 18 years or believed that the child was over the age of 18 years.
- Sexual abuse by persons in trust towards a child is an offence punishable to imprisonment not exceeding 15 years. Note no fine is imposed. This covers parent, step parent, adoptive parent, grandparent, aunt, uncle, sibling or first cousin, school teacher, counsellor or youth worker in professional capacity, employee in a remand centre, children’s home, guardian, correctional centre or prison acting in the course of duty, health care professional or traditional healer and child is a patient, member of the police.
- Other offences in relation to children include producing and distributing child pornography, possessing or accessing child pornography, use of children for pornographic purpose, obtaining the service of child prostitute, offering arranging or benefiting from child prostitution, parent facilitating child prostitution, organizing or promoting child sex tourism.
- The punishment for all of the above sexual offences involving children are imprisonment not exceeding 15 years. No alternative of a fine.
- Where a person is convicted of an offence in addition to any other punishment the court may order the person to compensate the victim for medical and psychological treatment, costs of transportation, temporary housing and child care, lost income, legal costs, emotional distress, pain and suffering or any other loss.
- It provides special measures for vulnerable victims and witnesses.
CHALLENGES IN ADDRESSING TEENAGE PREGNANCY AND CHILD MARRIAGE FROM A LEGAL PERSPECTIVE
1. Lack of Implementation and Enforcement of laws
- This remains a major barrier or obstacle as a lot of cases of sexual assault are not reported for various reasons: culture of silence and impunity, avoiding stigma, lack of support and information as well fear of reprisals from the perpetrator and his family.
- Families of victims pursue family settlements as the perceive going to court or police to be burdensome and expensive. Sometimes traditional and religious leader broker these settlements.
- FSU are not in every police station and personnel with the necessary experience and skill in the investigation of such cases are transferred to other departments in the police.
- During investigations police may lack the means of transportation to carry out investigation in far to reach areas, witnesses may not be co-operative and the quality of investigation and prosecutions may be poor leading to fewer convictions.
- There is a severe shortage of social workers who should support investigations and prosecutions of cases.
- There is need for strengthening the institutions required to implement and enforce the laws namely the police, the courts, Ministries of Social Welfare and Health and Parliament. Recruitment and training of more personnel, allocation of resources are not fully
- Inadequate or lack of diversionary or correctional measures for child offenders other than custodial sentences.
2. INSUFFICIENT PREVENTION, EDUCATION, INFORMATION AND SERVICE DELIVERY PROGRAMMES FOR THE FULL DEVELOPMENT OF TEENAGERS AND YOUTH PERSONS
- Teenage girls and young persons are not provided with the education and life skills to negotiate or say no to sexual activity. – self esteem,
- Negative stereotypical behaviour is associated with almost all teenagers by parents, traditional and religious leaders and the community as a whole so they are not given the incentive to avoid risky behaviours.
- Wrong preventive measures by parents and community to force teenagers into marriage, and taking them away from school impedes their development and further harms them.
- Teenagers and Youths are unaware that their actions or what they experience are offences and punishable by imprisonment.
Recommendations on the Way Forward
- Religious and Traditional leaders should be champions for the rights and well being of adolescents particularly young girls and should be part of education campaigns to educate girls and their families with accurate and appropriate information to prevent teenage pregnancy and child marriage.
- Legal reform and review of all laws including customary laws using international standards and best practices of laws on children and youths. Repeal section 27(4)(d) which permits discrimination against women.
- Reform of criminal justice laws for successful outcomes of investigations and prosecutions in particular the repeal of the strict legal requirement of corroboration, statute bar and use of medical reports and evidence from only doctors in the prosecution of sexual offences.
- Establishment of a Family Court provided in the Child Rights Act that will be gender sensitive and child friendly.
- The provision of a sustainable legal aid and witness and victim support for offences involving children.
- Capacity building for security and judicial personnel on child justice issues.
- Operation of an updated sexual offenders’ register and a monitoring and follow up system of such persons who are always likely to reoffend.
- Addressing corruption and lack of political will to investigate and prosecute cases.
- Recruitment and capacity building of social workers, police and judicial personnel on child justice issues as well as encouraging effective collaboration with traditional and religious leaders.
- Getting adolescents and youths to be involved and where possible take the lead in dialogue, development, implementation and monitoring of policies, laws and programs that concern them.
- Provision of free and age appropriate sexual and reproductive health services including information to adolescents and their families.
- Robust but friendly monitoring of schools and places where teenagers frequently attend.
- Organize and monitor appropriate social programs for teenagers and excluding them from inappropriate social places.
- Control and monitor the use of alcohol and prevent its sale to and consumption by children.
- Review and monitor the outcomes of prevention and education programmes and adopt new strategies when necessary.
- Support the care, well being and dignity of children by parents, guardians and the community at every level supporting them to avoid risky behaviours whilst recognizing that adolescent sexuality is a vital part in the development of every human being.
Thanks for your attention and I invite questions and comments but will appeal that you limit them to teenagers and children the focus of this Forum and my presentation.
[i] Section 170 of the Constitution
[ii] Section 171 of the Constitution
forwarded by Alie Kallay, Journalist
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