Tradition or Law - Battle of the Titans?

Greetings to all the cherished readers of this column.

Apologies to all those who contacted me for the reason why I was not writing articles. Yours truly was engaged on a very important professional assignment.

But what a topic to come back to! The media - print, broadcast and social - were all awash over the weekend with news of a prominent 63-year-old traditional priest and chief marrying a 12-year-old girl. The news provoked nationwide protest; citizens and netizens are up in arms; celebrities are crying foul; feminists are hitting the roof with rage.

This alleged traditional marriage between the 63-year-old Nuumo Borketey Laweh Tsuru XXXIII, the Gborbu Wulomo-Shitse, High Priest of the Ga Dangme State, and the 12- year-old girl has brought into sharp focus the perennial tension between customs/ traditions and the law; the vexed question of the strained relationship and unhappy cohabitation of customs/ tradition vis-a-vis human rights law. The uproar, opprobrium and public distaste has been palpable. 

What the law says

I have heard that the Attorney General has waded in and instructed the Inspector General of Police to get in on the act. But what does the law say in relation to child marriage? 

Beginning with international human rights law, child marriage offends the provisions of many international human rights treaties, including, but not limited to, the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of all Forms of Discrimination against Women (CEFDAW) . Articles 16(2) of both the UDHR and the CEFDAW categorically prohibit child marriage.

Further, Article 23 of the International Covenant on Civil and Political Rights (ICCPR) makes any marriage entered into without the free and full consent of the spouses illegal. 
Closer to home, both the Children’s Act and our Constitution defines a child as a person below the age of 18. We hope that IGP refers to these legal provisions in the course of the investigation.

Child marriage

Ghana has been grappling with the issue of child marriage for some time and this alleged marriage has only served to highlight a negative practice afflicting various ethnic groups. 
According to UNICEF, one in five girls aged 20 to 24 years are married before the age of 18.

Also, according to the NGO ‘Girls not Brides’, 19 per cent of girls are married before 18 with five per cent getting married before their 15th birthday.  These statistics are alarming, given the negative impact and consequences of child marriage.

Not only does it curtail the physical and economic development of girls but it has been proven to have far reaching psychological implications. Hopefully, the policy initiative of the Gender Ministry’s ‘Girls need Rights not Rites’ will be aggressively pursued to nip in the bud this growing social canker. 

Custom/Law

The tension between upholding traditions/customs and enforcing the promotion and respect of human rights law alluded to in the heading of this article was highlighted in a press conference by the Mankralo of Nungua, Nii Borketey Kofi Frankwa II.

Ostensibly to clarify the issue, he explained that the marriage was a practice well steeped in their traditions and customs. He even went further to support his argument with instances from the Bible and the Quran where old persons had married very young girls, even citing the union of Joseph and Mary along the way.

He called on persons criticising the marriage to agitate for the abolition of Christianity and Islam in the country since both these religious traditions sanctioned marriages between old men and very young girls. The same or very similar arguments were used by the proponents of the bill that seeks to criminalise homosexual activity in the country.

Hypocrisy

It is always dangerous, if not contradictory, to rely on customs/ traditions as a basis to challenge universally accepted principles of law. It is quite interesting that almost everyone is up in arms despite the justification being the upholding and the fulfillment of cultural traditions.

If, as a people, we can use our customs/ traditions to discriminate against persons with different sexual orientations, what authority do we have to stop the Nungua people from following their traditions? 

Herein lies the inadequacy and hypocrisy of the cultural argument. If we want to subscribe to the principles of democracy, then we must be willing to abide by globally accepted principles of democracy as espoused by the United Nations. So, do we abandon democracy, with all its trappings, and live by our customs and tradition?

The writer is a lawyer

email: georgebshaw1@gmail.com