By Dr. Sylvia Olayinka Blyden OOR
This piece is a rebuttal to afore-cited publication of April 20th 2024 by Basita Michael Esq. (Mrs.) and the well-respected Institute for Legal Research and Advocacy for Justice (ILRAJ). In their publication, they attempt to lampoon the distinguished First Lady of Sierra Leone for what they erroneously termed as banning “what has already been banned”. It was unfortunate.
According to ILRAJ, the Child Rights Act of 2007 has already banned Child Marriage in Sierra Leone so for First Lady Fatima Jabbe Maada Bio to call a High-Level Consultative Conference in April 2024, to discuss how to ban Child Marriage in Sierra Leone, was a seeming gimmick that needed clarity.
I intend to provide the crystal-clear legal clarity in this piece which I am humbly submitting to ILRAJ for publication on their global website and all other of their distribution outlets including their Facebook & Twitter accounts. It is my sincere hope that my examination of these legal issues will further add to the literature around Child Marriage in Sierra Leone.
Before proceeding, let me commend First Lady Dr. Fatima Jabbe Maada Bio for successfully lobbying all Members of Parliament to unanimously approve The Prohibition of Child Marriage Bill on June 20th 2024; which Bill now awaits the assenting signature of His Excellency President Julius Maada Bio.
Indeed, Sections 34, 35 and 46 of the Child Rights Act No. 7 of 2007 made it a punishable crime for anyone to collect a dowry, betroth or marry a child who is less than 18 years of age but most frustratingly, just two years later on 23rd January 2009, another Law was passed which made it permissible for a Sierra Leone child under the age of 18 years to be married off – even if the Parents refuse to give consent for their child to be married!
Yes, two years after Sierra Leone proudly passed the Child Rights Act in 2007, our country passed another fresh law in 2009 that said an innocent girl can forcefully be married off against her will as long as her parent or guardian consents that the girl child should be married to a man that the parent approves of. The 2009 Law gives the girl absolutely no say in the matter of whether she wants to get married or not.
So Shocking! SHOCKING INDEED.
It is shocking but the 2009 Law is just part of the herculean challenge that our noble First Lady identified as unacceptable. There were more issues which she spotted and which she has now resolved.
Now, to better understand the colossal achievement of First Lady Fatima Maada Bio in lobbying and getting the Sixth Parliament of the Second Republic to totally ban all forms of Child Marriage, I need to give a brief overview of two concepts in Law: Implied Repeal and Expressed Repeal.
Expressed Repeal is when a more recent Law specifically states that an older conflicting Law is thereby removed and no longer in force.
For Implied Repeal, it is best described by two Latin maxims: “leges posteriores priores contrarias abrogant” or “lex posterior derogat priori” which both simply mean that a more recent law supersedes any older law that conflicts against the recent Law even if the recent law does not expressly say it has repealed the older Law.
Despite the rule of Implied Repeal, there also exists a rule known as the ‘Presumption Against Implied Repeal’. This is because when Parliament is enacting a Law on any subject matter, it is assumed that Parliament has a full overview of all the legal issues around the subject matter. So if MPs do not expressly state that they are repealing an older Law, it means they still want the older Law to continue to be in force.
The ‘Presumption Against Implied Repeal’ rule applies more so when the new Law expressly repeals some older Laws but fails to repeal other older Laws that seem to be in conflict withthe new Law. In such scenario, the Latin maxim of: ‘expressio unius est exclusio alterius’ (the express mention of one thing excludes all other) is what dominates any interpretation of what Parliament meant to happen.
With the above legal rules background, let us examine the impediments against our Girls which First Lady Fatima identified to be removed.
The 2009 Law which came into effect two years after the 2007 Law is known as The Registration of Customary Marriage & Divorce Act No. 1 of 2009 and Subsection 2(2) as enacted said that with ONLY the consent of the child’s parent or guardian, a child can be married off. The Child had no Say.
Even more alarming, the 2009 Act under Subsection 2(3) goes further to say that even if a parent declines to consent to their child being married off, a designated Civil Servant in the locality or a Magistrate can give permission for that child to be married against the wishes of the Parents.
Instantly, under Implied Repeal rule, it means the 2007 Law protecting children, especially innocent girls, no longer had desired effect as the 2009 Law now provides that little girls under the age of 18 years can be married by their communities under the Law even against the wishes of their parents.
But that is not all.
Let me continue to examine the Laws around Child Marriage but this time, let me use the ‘Presumption Against Implied Repeal’ rule to showcase the importance of what Her Excellency First Lady Dr. Fatima Maada Bio has today now achieved for generations of our Girls; even those yet unborn.
You see, when the Child Rights Act was passed in 2007, it got sections included which expressly repealed or amended many older Laws. For example, in its Section 141 schedule under number 4, it expressly repealed and replaced Section 9(2)(a)&(b) of Mohammedan Marriage Law (known as Cap 96) insofar as the age at which a son or brother can take out Letters of Administration for a deceased Muslim but the drafters of the 2007 Act did not repeal a carte blanche loophole in Section 2 the same Cap 96 that allowed children to be married under Muslim Law.
So, under the ‘Presumption Against Implied Repeal’ rule, it follows that children could still continue being married off under Muslim Law in Sierra Leone and it was perfectly legal.
In the same vein, the loopholes found in Section 7(2) and Section 8 of The Christian Marriage Act (Cap 95) were not amended or repealed by 2007 Child Rights Act so under ‘Presumption Against Implied Repeal’ children under the age of 18 years could still be married off under the Christian religion if their father or mother gave consent. Infact, Cap 95 goes further to say even if the parent refuses to give consent for their child to be married, another person can give consent for that child to be married under Christian Law.
The Civil Marriage Act (Cap 97) also provided loopholes through which children could continue being married off. These loopholes were found in Section 7 and within proviso of Section 19 where the Marriage Registrar could marry off a child without the Registrar facing criminal penalty if the Registrar receives an Affidavit that shows consent of an authorized adult for the child to be married. Making it even worse is that the Affidavit can say no such authorized adult exists to give consent and based on that, the registrar can go ahead and conduct a marriage of a child. Since none of these sections were amended or repealed by the 2007 Child Rights Act then under the ‘Presumption Against Implied Repeal’ rule, it follows that children under the age of 18 years could still be married off with or without parental consent under the Civil Marriage Act and no-one will face any penalty for that.
Now, let me recognize pertinent issues in otherwise impugned article by ILRAJ. Many salient points were raised by ILRAJ which I appreciate. Their wrong position on the Law does not negate the other excellent concerns raised by ILRAJ. However, the new Prohibition of ChildMarriage legislature worked on by First Lady Fatima Maada Bio, which Parliament just passed in this month of June 2024, clearly addresses ILRAJ’s concerns; especially with the stern enactments such as penalty for attending the marriage of a child.
I have already shown that contrary to the position of ILRAJ, the efforts of the First Lady have not been to pass what ILRAJ terms as “redundant” laws but rather, our First Lady has stood Tall to permanently cure the mischief created in a 2009 Law (which post-dated the 2007 Law) that allowed for children to be married even where their Parents withheld consent.
The concerns for the children in the rural areas being raised by ILRAJ are worthy concerns andthat is why ILRAJ should join me to stand up and give a standing ovation to Her Excellency First Lady Dr. Fatima Maada Bio for the herculean task which she has championed and ensured comes to fruition. No more will the 2009 Law be used to marry off our girls in rural areas under customary marriage traditions. No more. No more. No more. All thanks to Her Excellency First Lady Dr. Fatima Jabbe Maada Bio.
No more will children be married off under Muslim Marriage Law, Christian Marriage Law or Civil Marriage Law simply because the 2007 Child Rights Act had failed to specifically repeal those Chapters of Sierra Leone Laws. No more. No more. No more. All thanks to HerExcellency First Lady Dr. Fatima Jabbe Maada Bio.
Whilst the new Law roundly protects children, it is specially for our girls who are now going to get an enhanced chance of becoming educated like our boys and thus, with both gender being able to contribute equally to national development, the progress of our Nation for generations to come, will be speedier because more Educated Women will be on board. All thanks to Her Excellency First Lady Dr. Fatima Jabbe Maada Bio.
ILRAJ, please join me to raise a glass to toast Her Excellency First Lady Dr. Fatima Jabbe Maada Bio and to give her the flowers she deserves whilst she is still alive. Let us give ‘Fatima’ the Standing Ovation she deserves.
The author, Dr. Sylvia Olayinka Blyden, is a Medical Doctor, a Gender Equality & Child Rights activist who once served as Minister of Social Welfare, Gender and Children’s Affairs in theRepublic of Sierra Leone. She is currently accepted to do an LLM Masters in Constitutional Law,Human Rights & Criminal Justice at the Law Faculty of Fourah Bay College, University of Sierra Leone.
NOTE
As a human rights organization committed to free speech, we have published this rebuttal verbatim. We believe in the right to reply and ensure that all voices are heard in the spirit of fairness and balance. We thank Dr Blyden for submitting this rebuttal.
