The Lukautim Pikinini Act 2015 addresses child marriage in a way the Marriage Act (Chapter 280) does not.
Section 86
A person who, by act or omission, facilitates the marriage of a child, either by custom or by law, is guilty of an offence.
Penalty: imprisonment for a term not exceeding five years.
“Child” means a person, including a boy or girl child, under the age of 18.
Four features of section 86
| Feature | Effect |
|---|---|
| “Facilitates” | Reaches the arrangers, not only the spouse — parents, guardians, families, celebrants, intermediaries |
| “By act or omission” | A person who fails to prevent a marriage they could and should have prevented is within the words |
| “Either by custom or by law” | Applies to customary marriage as well as statutory marriage |
| Under 18 | A single age, for both sexes |
Section 6(3) of the Marriage Act provides that Part III does not apply to customary marriages — so the marriageable age rules in section 7 have no application to a customary marriage.
Section 86 closes that gap. It applies to a marriage by custom in the same terms as to one by law, and custom is no answer to the charge.
It works with section 80 of the same Act, which makes it an offence to unlawfully subject a child to a social or customary practice that is harmful to a child’s well-being as guided by the principle of the best interests of the child — a fine up to K5,000 or two years, or both. See harmful customary practices.
The tension with the Marriage Act
| Marriage Act s 7 | Lukautim Pikinini Act s 86 | |
|---|---|---|
| Age | 18 (male), 16 (female) | 18 for both |
| Lower limit by court order | 16 (male), 14 (female), in exceptional and unusual circumstances | None |
| Customary marriage | Excluded — s 6(3) | Included expressly |
| Who is liable | The celebrant — s 58 | Anyone who facilitates |
A marriage involving a 16-year-old female is permitted by section 7(1)(b) of the Marriage Act, and a marriage involving a 14-year-old female may be authorised by a Judge or Magistrate under section 7(3).
Yet facilitating the marriage of anyone under 18 is an offence under section 86 of the later Act, which contains no exception for a marriage that complies with the Marriage Act.
The Lukautim Pikinini Act 2015 is the later statute and is specifically directed at the protection of children. Its principles and the best interests principle in section 103 point the same way.
Anyone advising on a proposed marriage involving a person under 18 should treat section 86 as engaged, whatever section 7 of the Marriage Act permits. The safe course is to wait until both parties are 18.
Related offences and protections
- Section 80 — harmful customary practices: K5,000 or two years, or both.
- Section 82 — sale of children. Where a marriage is arranged in exchange for payment, this section may also be engaged.
- Section 5 of the Marriage Act — a Local Court Magistrate may forbid a customary marriage where the woman objects and excessive pressure has been brought to bear, or it would be a hardship to compel her to conform to custom, and may annul a marriage entered into in breach.
- Section 58 of the Marriage Act — marrying a person not of marriageable age.
- The Criminal Code Act (Chapter 262) — the sexual offences against children, which are not answered by the existence of a marriage.
- Child protection — a child at risk of marriage may be a child in need of protection, and the Family Court may make protection orders.
What to do about a child marriage
- Report it. Section 38 of the Lukautim Pikinini Act imposes a duty to report on specified persons, and section 39 restricts civil action against a person who reports.
- Apply to the Local Court under section 5 of the Marriage Act to forbid a customary marriage, where the girl objects.
- Contact a Child Protection Officer, who has powers under section 36 and may seek a warrant or act under the emergency provisions.
- Remember the offence reaches the arrangers. Parents and relatives who facilitate the marriage — by act or omission — face up to five years.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 38, 39, 80, 82, 86, 103
- Marriage Act (Chapter 280) — ss 5, 6, 7, 58; Criminal Code Act (Chapter 262)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.