IV. No Protection, No Justice for Child Marriage Victims

Girls and women in South Sudan have few rights in their homes and in marriage, and face many risks when they resist or try to leave forced marriages.

Many of the girls interviewed by Human Rights Watch said they had tried to reason with their families when faced with imminent marriage to someone they did not wish to marry. When these efforts failed—and they did in most cases—many had no choice but to get married. Some women and girls try at great personal risk to avoid forced and early marriages. Some seek help from their families, traditional authorities or elders. Others flee to religious leaders or human rights organizations, or look for assistance from government officials and the police. Even if they manage to flee, they face many hurdles to getting protection and accessing justice, and rarely get the help they need.

There are many weaknesses in the administration of justice in South Sudan, such as lack of infrastructure, resources, adequate laws, and well-trained personnel.[128] Generally, these weaknesses affect women’s ability to obtain justice for gender-based crimes, including forced marriages. Statutory courts are often inaccessible; they are far away and women lack legal counsel to help them navigate the system, or the necessary protection to lodge complaints. As early and forced marriages are accepted in many South Sudan traditions and cultures, customary courts offer limited hope for escape. With both statutory and customary courts staffed almost entirely by men, women encounter discrimination when seeking justice in either forum.

Rachel B.’s Story: Failed by the Government and Forced into Marriage Fifteen-year-old Rachel B. loved to study.[129] When Human Rights Watch interviewed her in March 2012 she was attending school. But she told us her dream of getting a good education began to fade in 2011 when her parents decided to marry her to a man who was about 40 years old and already had a wife and children: My family and the man’s family got together and agreed on the dowry of 26,000 pounds [about $7,429], which was paid in December 2011. Afterwards, my mother and father came to me and said, “Today you are going to your house [getting married].” I told them I didn’t want to get married because I wanted to study. They insisted I had to marry him because he had paid dowry. They forcefully took me to his house in New Site.[130] I spent three days there. I was crying all the time. On the third day I escaped and returned home. My father called my mother and said I should stay at home until he returned home to settle the matter. I told them that I would kill myself if I had to go [with the man her parents wanted her to marry]. Rachel took the advice of one of her friends and sought help from the Human Rights Commission (HRC). The HRC sent her to a center for vulnerable children managed by the Central Equatoria State Ministry of Social Development where she stayed for two weeks. She was then told to return home to her family. In March 2012, when Human Rights Watch first interviewed her, she was living at home, under constant threat, and desperate to continue her education. She told us: I don’t feel safe at home. Every day [my family] are fighting me, and I believe that they can kill me. I am always thinking about how unsafe I am, even when I am at school. I cannot concentrate in class because of these fears. I also fear that the man can kidnap me on my way to school, rape me, or he can beat me or kill me. I want the government to help me, to send me somewhere where I can be safe and study. If there was a shelter where I would be safe, I would go there. Her family continued with their plan to have her married. Rachel told Human Rights Watch about the marriage when we interviewed her again: In April [2012], my uncle’s son came to our home and said that he wanted me to go to my husband. He beat me and told me that he would kill me if I refused to get married to the man. He said the family had used the money my husband gave and were not in a position to repay, so I had to marry him. He took me to my uncle’s home. There, my uncle beat me, tied my ankles and wrists with metal wire, and locked me inside a room. They took my phone and people at the home watched me constantly. I was not allowed to go to school. Rachel escaped and again sought help from the HRC who placed her at a center for girls, where she remained for two weeks. In mid-April, Rachel’s family went to the offices of the HRC, armed, and demanded that Rachel be released to them.  They eventually took her away. The HRC referred Rachel’s case to the Ministry of Justice where prosecutors said they were pursuing her case, though no charges have ever been brought against her family members, nor any arrests made. After her second attempt to escape, Rachel made a statement to the police, which included testimony about the abuse she had suffered.  Despite the involvement of multiple government agencies in Rachel’s case, none were able to protect her and her whereabouts at time of writing were unknown to Human Rights Watch. Officials from the HRC and the government told Human Rights Watch that they believe Rachel is married and living with her husband.

Impunity for Sexual and Gender-Based Crimes

There is critical lack of implementation of women's human rights among the police and judiciary in South Sudan, which makes bringing perpetrators to justice very difficult and encourages impunity for these crimes.[131]Police insensitivity can be a significant barrier for women who are seeking protection. The newly developed Special Protection Units (SPUs) seek to address this shortfall, but as mentioned, are plagued by a lack of trained personnel and are not available in all police stations.

Across the country, law enforcement services are weak and police are under-trained and under-resourced.[132] In particular, aside of the SPUs, police are given little training on how to handle cases of gender-based violence and for the most part, they have little knowledge of women’s rights.

Most police officers are men, many of whom are older, uneducated former soldiers with conservative views about women’s place in society. Reports by local and international organizations indicate police often refuse to assist women who report domestic abuse, claiming that this falls outside of their jurisdiction and sending them home to address the issue within their families.[133]

A recent study by the Ministry of Gender, Child, and Social Welfare noted the lack of urgency by the police and government prosecutors—key institutions responsible for addressing gender-based crimes in terms of protection, investigation, prosecution and enforcement—in dealing with cases of gender-based violence. It stated,

Both institutions are … mostly unaware of the magnitude and manifestations of gender based crimes…. The result has been de-prioritization of SGBV offences like rape and concentration on cases like murder, which the public attorney thought [were] more important. Thus, few gender-related cases reach [the] court or are prosecuted. For example, those who kill girls … engaging in commercial sex go scot free. A man who beat his sister to death for refusing to marry an elderly man was released the same day without any charges.[134]

Lack of Shelters

South Sudan has no shelters designed to assist survivors of gender-based violence (GBV). As Rachel’s case demonstrates, lack of shelters or safe spaces where girls can seek protection and help when at risk of forced marriage, or when they run away from them is a key barrier to effectively responding to forced marriages and domestic violence generally. Girls who resist forced marriages may face physical, verbal, and psychological violence from their families or husbands and are not safe at home.

A center run by an NGO, Confident Children out of Conflict, has occasionally accommodated victims of forced marriage. Another small center, known as Toto-Chan, run by the Central Equatoria State Ministry of Gender and Social Welfare has also housed such girls, including Rachel. A ministry official however noted that “it is not our mandate to keep such girls. We are not a safe house.”[135] The Juba Orphanage has also served as a temporary refuge in at least three cases of which Human Rights Watch is aware. The supervisor emphasized however that the center is in fact intended to provide long-term accommodation for orphans.[136]

Donors and some government officials have expressed concerns about how shelters can respond to GBV cases. While some support their establishment, others fear that women there can more easily be targeted by their husbands and families. For example, Konga said the following about lack of shelters:

We would like the government to look into establishing a center where cases such as Rachel’s can be referred. Right now, girls who are being forced into marriage have nowhere to go. So they can’t report because even if they do so there is no way of protecting them. Mostly they go to the police and don’t get the services they need. So they go home and get married. Girls need support when they run. Sometimes they come with only one dress and need sanitary pads. Some children are really traumatized by the beatings and need time to heal. If there is a place where people can report GBV cases, many more will come if they are assured of confidentiality and security.[137]

Human Rights Watch asked the head of the women and juvenile justice department in the national Ministry of Justice about protection for girls who bring complaints against their own families in cases of forced marriage. He commented,

There is no solution in such cases. In case a child goes to the prosecuting attorney and opens a case against her own family or guardians, where is she going to stay? This is something the Ministry of Justice, UNICEF, and the Ministry of Social Welfare need to deliberate on.[138]

Lack of Coordination amongst Relevant Government Ministries and Agencies

Another problem in protecting victims of forced marriage and enabling them to access justice is lack of coordination between relevant government ministries. There are no guidelines on how the authorities should handle these cases, and ministries respond to cases in an ad hoc manner, often without offering any real solutions to the girls who go to them for protection. In the end, their inefficiency helps perpetuate child marriages and related abuses against girls.

In the absence of a coordinated and procedural response to cases of forced marriage—and the lack of a clear delegation of responsibilities to specific police or health authorities— the ad hoc efforts of government ministries have thus  proved inadequate due to the failure to develop a comprehensive strategy detailing specific and targeted action.

For example, Rachel’s case was handled by the national ministries of Gender, Child and Social Welfare, Justice, and that of Gender and Social Development in Central Equatoria State. Lack of coordination between them, including ineffective coordination with the Human Rights Commission, meant that Rachel did not get help from any of them. This gap also undermines accountability as the roles of each ministry are not clear.

For example, the director of child protection at the Central Equatoria State Ministry of Gender and Social Development blamed the Ministry of Justice for Rachel’s forced marriage:

Rachel was a child who suffered so much from the threat of marriage. She wanted to go to school, but this dream was taken from her. We tried to solve this case, but we couldn’t. The Ministry of Justice should have stopped Rachel from being forced to marry that man, but they didn’t. Instead, they returned her back to her family. They should review their laws and cooperate with the Ministry of Social Development in order to solve such issues.[139]

The SSHRC also felt that the Ministry of Justice had failed to take effective steps to protect Rachel from violence and the marriage.

Poor Monitoring of Cases

Government institutions do not adequately monitor the outcome of cases that they handle. Officers, particularly social workers, in the state Ministries of Social Welfare, should ensure that they have sufficient contact information to follow up on and visit girls whose cases they have handled. Where courts do issue restraining orders or order that a marriage should not take place, police should monitor compliance with the court order.

Currently, although government institutions may claim to have resolved cases, they cannot be certain without adequate follow up with the girls on whether they were later married. For example, the Central Equatoria State Ministry of Gender and Social Welfare told Human Rights Watch that they had intervened in a few cases of forced marriage, although they were unaware of what happened to the girls once they returned to their families:

I have seen three cases of forced marriage. In one case, a school girl was being forced to marry. We kept her somewhere for a week then she was given back to her family who said they would not force her to marry. Up till now I don’t know what has happened to her. Her name was Jane, and she was 15 years old and Dinka. There was another 16-year-old Dinka girl called Mary. She was taken back to her family. The family convinced us that they would wait. We don’t know where she is now. We have solved these cases peacefully by talking to the parents, but we don’t actually know what has happened to these girls.

Gaps in the Law and Conflicts between Laws

South Sudan’s national laws have important protections for girls and women.[140] However, South Sudan needs legislation that sets the minimum age of marriage at 18 and protects women’s right to choose their own spouse and to enter into marriage with their full and free consent. South Sudan should also take necessary legislative and other measures to ensure that anyone who intentionally forces an adult or a child to enter into a marriage is appropriately penalized, and that marriages concluded under force may be voidable, annulled, or dissolved without undue burden placed on the victim.

The Child Act defines a child as anyone under 18 and states that, “every child has the right to be protected from early marriage.[141] The Child Act includes the rights of children to non-discrimination, birth registration, health, education, life, survival and development, an opinion, protection from torture and degrading treatment, and to protection from abuse.[142] Article 22 states that, “Government shall take concrete measures to protect children from all forms of abuse and to ensure that any child who becomes the victim of abuse … shall be accorded appropriate treatment and rehabilitation.[143] Article 22 provides that those convicted of abusing a child can be sentenced to 14 years, and article 30 provides that anyone convicted of violating the rights of a child as guaranteed by the Child Act can be convicted and sentenced to up to seven years. 

While these articles can be read together to prohibit child marriage and sanction those who force their children to marry, there is a need for clearer and more direct legislation, or at least for the judiciary to clarify how these provisions should be applied through judicial opinions or circulars.

The 2011 Transitional Constitution of the Republic of South Sudan does not set a minimum age of marriage. Instead, it ambiguously states that, “Every person of marriageable age shall have the right to marry a person of the opposite sex and to found a family according to their respective family laws, and no marriage shall be entered into without the free and full consent of the man and woman intending to marry.”[144] The Penal Code does not criminalize those who procure a child marriage, but does contain a provision criminalizing “kidnapping or abducting a woman to compel her into marriage.”

How the current definition of rape applies to sexual intercourse in the context of child marriage is also unclear. Under the Penal Code, 18 is the age of consent to sex. The same article excludes “sexual intercourse by a married couple” from the definition of rape.

These gaps in the law perpetuate discrimination and inequality between men and women in the right to marry and found a family. 

Customary Law Challenges

One key source of confusion in South Sudan is how to reconcile the Transitional Constitution’s recognition of customary law as a source of law when confronted with customary practices that are discriminatory, harmful, or otherwise violate the human rights also affirmed by the constitution.

It is, however, clear in the constitution that all laws, whether customary or statutory, are subject to the Bill of Rights.[145] The Child Act provides further support for the non-application of harmful customary practices, such as child marriage, through a provision providing that customary and traditional laws shall be applied “except where those laws are contrary to the best interests of the child.”[146] Unfortunately, neither courts nor the government have provided any guidance as to what constitutes the best interests of the child, for the purposes of the Child Act.

Under the Code of Civil Procedure Act, customary law is the source of law for marriage, divorce, child custody and other family- related issues.[147] The Code of Civil Procedure also includes a caveat that such customs should not be applied if they are “contrary to justice, equity or good conscience.”

While the provisions of the Transitional Constitution, the Child Act and the Code of Civil Procedure offer solutions for how conflicts between customary laws and human rights should be resolved, there are no published court decisions articulating this line of reasoning or offering guidance in interpretation of customary laws consistent with the Transitional Constitution. The Supreme Court has not issued any judicial circulars offering clarification to courts on how to use the provisions of the Transitional Constitution.

A government official commented on the challenges posed by customary law in addressing child marriage, noting,

There is a law, but … early marriage is a traditional act. If you try to stop it, people will accuse you of wanting to change their culture. Judges are having a hard time passing sentences for early marriage. The Child Act cannot be implemented completely because of tradition.[148]

Customary courts are familiar and accessible, and are therefore used by the vast majority of the population including women and girls. They serve as the primary institutional recourse for communities in matters of marriage. But the chiefs who preside over customary courts are usually older men, and their decisions frequently reflect deeply ingrained patriarchal views. They generally do not enforce the same definition of a child as the Child Act. Normally, girls are considered ready for marriage as soon as they reach puberty—at around 12—rather than 18.[149]

Customary courts generally favor restorative and consensual solutions over punitive ones. Under customary law, for example, homicide, adultery, theft, and injury may be resolved through awards of compensation, often in the form of cows or other livestock, from the perpetrator to the injured party.[150]

While these are accepted ways of settling disputes within communities, the failure of customary courts to address the criminal elements of certain gender-based crimes leaves victims without an adequate remedy. In Rachel’s case, the Ministry of Justice agreed to release her to her family, despite the violence that she faced, because the family said they would settle the issue as a family matter.

While South Sudan is struggling with how to harmonize its plural justice system,[151] these legal inconsistencies add to a culture of impunity for violations of women’s rights including through child marriage.

Punishment for Adultery and Offences not Defined in Law

Another gap in the law in South Sudan relates to “offences” that do not exist in the Penal Code or in any written form. These include “elopement,” “pregnancy,” or “playing sex.”[152] Girls and women may also be arrested or imprisoned for attempting to marry without the consent of their families, for refusing to marry the man chosen for them, or for running away after dowry has been paid. Human Rights Watch has also documented cases of women being imprisoned because they requested a divorce.[153] As noted in Section I, women and men, adults and minors, are also imprisoned for adultery.

These gaps in the legal system create opportunities for families and husbands to intimidate women, and to coerce them into forced marriages or into continuing in marriages that they did not want, with husbands who may be abusive. They may also be used to intimidate and to discourage those who try to assist girls to escape forced marriages, and generally women who try to escape violent marriages. A human rights investigator at the Human Rights Commission who had tried to help Rachel told us that her family threatened to take him to court, claiming that he wanted to marry her, but dowry had been paid by another man.[154]

Birth and Marriage Registrations

Birth and marriage registrations are important in combating child marriage because they assist in providing documentation of the age of the spouses at the time of marriage, and can help with government monitoring of underage marriages.

According to article 11 of the Child Act, birth registration is the right of every child in South Sudan, and the government is required to put in place a birth registration law throughout the country. However, only 5 percent of births in South Sudan are registered.[155] As a result of decades of war and the attendant lack of education, people often lack records showing a child’s age, making it difficult to take age into account before a marriage.

Neither the Child Act nor the Transitional Constitution provide for the need for marriage registration. There is currently no statute outlining the legal requirements for marriage.

Lack of Awareness about Rights and Information on Where to Seek Help

Generally, women in South Sudan are not knowledgeable of their rights under South Sudanese laws.[156] Ayen C., 21, told Human Rights Watch that she married at 14 and suffered abuse from her husband and in-laws, but chose to stay in the abusive marriage:

My in-laws were abusing me saying they had wasted their cows on me and I was not giving birth. My husband also talked to me with bitterness, always complained, and sometimes was verbally abusive. I was very sad; very stressed. I had nowhere to go. I could not go to my father because it is him who had forced me to get married. I decided to stay even if it meant dying in the home. Even if he had been beating me, I would have stayed because in our culture people stay in marriages with problems.[157]

Article 36 of the Child Act requires that all levels of government “should provide effective remedies to redress violations of the rights in this Act, including through access to child friendly, independent complaints procedures and competent Courts.” However, the girls with whom Human Rights Watch spoke did not know where to seek help when faced with a forced marriage or once they had entered one. Many of the girls we interviewed told us that their only option was to go to their families or community elders.

When Human Rights Watch asked a head teacher if any girls had sought help from him for forced marriage, he told us,

No girls have reported to me that they are being forced into marriage. Of course there are many cases, but these are considered family affairs and the girls are not allowed talk about them to outsiders. Girls don’t report these cases because they have no power in their families, and fear retribution if they challenge their decisions. Even girls who want to refuse forced marriages don’t know where to report these cases.[158]

Because of this lack of information many girls and women do not report forced marriage cases to the authorities.

Lack of Family and Community Support

Many of the victims of early and forced marriages that we interviewed also suffered from prolonged domestic violence, but felt unable to leave the marriage because of economic pressures, lack of family support and other social circumstances, worsening their vulnerability.

None of the girls we interviewed said that their families had listened to them when they tried to resist marriage. Instead, as discussed in previous sections, many were brutally beaten, threatened with curses, taken to the police, or their movements restricted to coerce them into marriage.

Some girls run to their families or went to traditional authorities for assistance because their husbands were abusing them, only to be returned to their abusive husbands.