by Myne Whitman
It is said that a large number of Nigerians don’t really know the law or their rights, and I think the lawmakers fall into this category. Those who pushed to delete section 29(4)(b) did it on the grounds that it infringes the right of a child by allowing early marriage but I think otherwise.
If you asked me whether the Senate really changed the age of marriage, the
answer is, I don’t think so. Yesterday, some people around my social media
sent me a couple of links to www.change.org petitions to stop the Senate, the
House of Representative and the Nigerian government, from altering the
constitution in a way that would allow for child marriage. By then, I had
seen the headlines on some blogs, and was fulminating inside, thinking of
writing a scathing post, or something.
I went over to sign one of the petitions, and there was a link to a Premium
Times article that initially reported the constitutional amendments
currently being voted on by the Senate. These parts of the report caught my
attention immediately.
The contentious provision, Section 29, allows citizens who are of age to renounce Nigerian citizenship if they wish. For that purpose, the constitution says, 18-year-olds and above shall be considered to be “of age”.
In addition, a woman or girl who is married, shall also be considered to be of age-a section that could be interpreted to imply that even a day old child, once married, shall be considered to be of age.
The Senate’s amendment committee had proposed that definition be deleted.*
So it turns out we’re talking about a woman’s right to renounce her
citizenship of Nigeria, and at what age and marital status. Which is very far from the viral stories of the Nigerian Senate sneakily passing a law that made pedophilia legal through early marriages.
Even the Nigerian Feminists Forum was hoodwinked. They recently released a
statement about how “greatly concerned” they were “about the resolution by
the Senate to alter section 29(a) of the Constitution which stipulates that
a woman shall not be qualified for marriage until she attains 18 years of
age.”
Should we blame the ThisDay journalist whom they quoted without verification? Because that is not what section 29 of the constitution is about at all. Section 29 relates to the renunciation of citizenship, and this is the section in full.
29. (1) Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation.
(2) The President shall cause the declaration made under subsection (1) of his section to be registered and upon such registration, the person who made the declaration shall cease to be a citizen of Nigeria.
(3) The President may withhold the registration of any declaration made under subsection (1) of this section if-
(a) the declaration is made during any war in which Nigeria is physically involved; or
(b) in his opinion, it is otherwise contrary to public policy.
(4) For the purposes of subsection (1) of this section.
(a) “full age” means the age of eighteen years and above;
(b) any woman who is married shall be deemed to be of full age.
The part under contention is actually section 29(4)(b) which the senators had wanted to remove because it seemed to be a repetition since Section 21 of the Child’s Rights Act of Nigeria already forbids the marriage of persons below 18 years with a punishment of N500,000 or a 5 year jail term, or both.
In as much as I might disdain his personal life, Senator Yerima, former
governor of Zamfara state, champion of Sharia, and husband of a 15-years-old
girl, was actually calling the other senators to proper order. The constitution does not allow the legislature to rule on issues of Islamic marriage.
Item 61 of the Second Schedule, Part I in the Exclusive Legislative List
says the Legislative Powers include “The formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto.
I took time to read more of the Nigerian constitution – which you can download free from GooglePlay or read online here – and it does not stipulate in any section the full age as regards marriage.
So contrary to reports that some clauses were removed that defined the age
of marriage for women, a clause was left in for women, or in this case girls, who are married before the age of 18 to be deemed of “full age” not for any other reason, not voting, not age of liberty (majority), but for the sole purpose of renouncing their Nigerian citizenship.
It is said that a large number of Nigerians don’t really know the law or their rights, and I think the lawmakers fall into this category. Those who pushed to delete section 29(4)(b) did it on the grounds that it infringes the right of a child by allowing early marriage but I think otherwise. Section 21 of the Child’s Rights Act already stipulates legal age of marriage, though I don’t know if it covers Islamic marriage. I believe section 29(4)(b) of the constitution deals with the age of a woman after the fact of marriage, and what rights she has at that time.
There are gender and child discrimination in the Nigerian constitution for sure, with only 2 mentions of the noun ‘woman’ and 7 uses of ‘child/ren’ compared to 235 appearances of the pronoun “he”. However, after my study, I support that the senate left in the clause allowing the under-age girl who is married the right to renounce her Nigerian citizenship. I see some sweet scenarios where this right may be used;
Senator Yerima’s Egyptian child-bride who is probably now a Nigerian
citizen by registration using section 26(2)(a) can decide she’s no more a
Nigerian right now instead of waiting till she’s 18, and leave Nigeria back
to Egypt. She, and other under-aged Nigerian women married under duress or
coercion, can also seek Asylum and citizenship with another country without
being burdened by their Nigerian citizenship. For a lot of countries, you
can only have one, two and most times not more than 3 countries you’re a
citizen of.
But I temper my support based on a second scenario where this right can be
abused. The husband of an under-aged Nigerian wife may be able to force her
to renounce her citizenship either to deny her rights to freedom under the
Child’s Right Act or citizenship and other rights under the constitution.
The petition we should be signing is one asking the entire legislature to
find ways to make the constitution more woman and child friendly. They need
to stipulate age of marriage in the constitution and remove the inability
of the house of assembly to make laws covering Muslim women and children,
especially where under-age marriage is concerned. Also, they should change
all the appearances of ‘he’ to ‘they’ to cover all genders.
PS – While it means there’s one less occurrence of woman in the constitution, I like that section 26(2)(a) has been amended to allow women married to non-Nigerians to grant them citizenship by registration – a simpler means of becoming a Nigerian than by through naturalization. If you know of the Niger Wives Club made up of foreign women married to Nigerian men, we may be having a Naija Husbands Club soon.
– The article was first published on www.romancemeetslife.com
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Myne Whitman blogs at www.mynewhitman.com
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.
@Michael
This is coming a bit late but I’ll respond for the benefit of any subsequent reader following the thread.
The procedure you’ve outlined is correct except that you ignored or you are unaware of the peculiar nature of the Child’s Rights Act.
The Act is a “transformed” (or “domesticated”, using the more common Int’l Law lingo) version of the African Charter on the Rights of the Child to which Nigeria is a state party.
As you may know, a treaty must be domesticated for it to have municipal application in Nigeria by virtue of Sec 12 of the Constitution. The power to do so rests solely with the NASS. However, the same Constitution limits legislative powers of the NASS to issues expressly enumerated in the Constitution, otherwise it will fall within the exclusive jurisdiction of the states. The subject matter covered is therefore for the states to legislate upon.
Thus, while the NASS has domesticated the African Charter on the Rights of the Child through the Child’s Rights Act, it for the states to adopt and adapt same as they deem necessary since it is a matter strictly within their legislative competence.
That is why some states have adopted it (e.g Lagos and Ekiti) and a whole lot of other states haven’t. The Child’s Right Act is simply a model law which the various states may use to fashion their own law on the subject. In fact, they are not under any legal obligation to adopt the Act.
Accordingly, you cannot invoke the provisions of the Act in states that have not “domesticated” it. Even in states that have, the rights enjoyable by the child is limited to ones contained in the states’ law not the Child’s Rights Act as passed by the NASS.
What a good review! I’ve been looking all over the internet to read an unbiased article on this issue, lucky I came across your blog. Thanks so much for shedding light on an issue where sheer ignorance has already made almost all folks to be fighting a blindfolded war. We Nigerians don’t really know a bit about our constitution. Unless, you study Law, there’s no way a Nigerian could know about our constitution and rights, which is bad. Funny enough, 90percent of adult Nigerians can’t even recite our national anthem. So, I think the government should include “Nigerian Law and Constitution” as a compulsory subject/course to be taken by students right from secondary schools to the tertiary. Thanks for shedding light.
Read this again after Nana asked for my opinions to the original piece on Saturday.
With all due respect and having been part of the constitutional review process for the last few months, I can honestly say at no point were we the Nigerian Feminist Forum hoodwinked – it is not everything that has happened that we can overtly gist about so that it does not hinder our access for next time. Whilst your piece raises issues those of us working in the constitutional review process have been aware for some time, it took the actions of Senator Yerima to figuritively lance the boil and in so doing, create the impression that he wanted the rest of Nigeria to marry underage girls.
We have fundamental issues around the respect for a gender friendly constitution rather than the isolating issue of just the rights of the girl-child. All of these issues go hand in hand and are critical for our development.
This uproar allows the opportunity for a more robust and strategic engagement with the House of Reps and others during the short period before recess is called.
Your free to email me if you would like to learn more otherwise you can follow the twitter handle @nff2008 or @AfAafrica.
This article is misleading and absolute BS. This has always been about under-age marriage and not citizenship renunciation. Which clause was actually removed? Section 29.4.b does encourage under-age marriage….has it been deleted? The legal age for marriage should be 18, anything less is unacceptable. I want to know what laws s Senator Yerima guided by as a senator, the constitution? Or Islamic law?
Well said! I’m not a muslim. But I agree with you because I’m in an age where gay couples are married by gay preachers in churches. We made that mistake… And I’m glad to see that not every religion is afraid to become unpopular.
Your message is confusing…don't jst try to justify that stupid yerima #notochildmarriage
Thank you Shisha. It the 29 (4)(b) that is being discussed. a remains valid and untouched. The problem ultimately is that the constitution cannot rule on issues of Islamic or customary marriage which may allow child marriage.
Myne,
Kudos for your analysis, there’s a lot of misinformation, disinformation and outright ignorance surrounding the issue. However, some of the facts and legal issues you raised are inaccurate.
The Senate Constitution Amendment committee recommended the deletion of the clause, votes were cast and carried. Yerima then objected on Islamic grounds vis-a-vis Item 61. Although he was ruled out of order, the Senate President felt the point sensitive enough for a second poll. It was then that the needed 2/3 majority required could no longer be secured.
Under Nigeria law, age requirement is normally prescribed regarding specific subjects. And there are health, physical and social basis for such prescription. Marital age is mainly governed by Marriage Act (21), Child’s Rights Act (18), Isamic Law and Customary Law.
Sec 29(4)(a) adds to existing confusion as to the proper benchmark for marriage even though the section itself is not about marriage. Even if under-18 marriage is lawful under some states’ laws, it falls to be seen why marriage should automatically confer wisdom to make right decisions on such a child even where it is common knowledge that such unions are hardly consensual.
More importantly, even Muslims and Ismaic scholars are divided as to the proper age for a girl child to marry. The least Nigeria’s Constitution can do is to not add to such confusion.
Further, you misinterpreted the import of Item 61 of the Exclusive Legislative List. The provision simply excludes Islamic and Customary marriages from the legislative powers of the NASS since they are determined by Islamic and Customary laws respectively.
Lastly, the point about appropriate pronoun (he/she) in the Constitution is misplaced. It is universal rule of interpretation that the use “he/him/man” in legislations extends to females too except the context dictates otherwise. It is historically a legal drafting measure to avoid unwiedly sentences and provisions.
Right on the bucks, Omolaja. Straightforward. Simple.
Omolaja, thanks for the clarification. As far as the Child Rights Act clarifies age of marriage, then 29/4/b has no relevance with underage marriage. The question is can we get the constitution and the legislature to overrule Islamic marriage laws with a specific age of marriage?
Myne,
Child’s Rights Act is not helpful in this regard. I’ll explain.
The Act as passed by the NASS has no automatic application, it has to be “domesticated” by each State House of Ass who reserves the right to modify it as they deem fit.
Hence, while the Act prescribes 18yrs, a House of Ass can set any limit they want and that’s what will apply in that state.
Again, sec 29(4)(b) is unnecessary with respect marital age as it is mostly for secondary legislations and Islamic/Customary law to determine. It should stick with renounciation of citizenship and 18yrs seems the appropriate benchmark for a person to take such a decision – regardless of his/her marital status.
Omolaja,
THIS IS WITHOUT PREJUDICE TO EVERY OTHER ISSUE INVOLVED IN THE DEBATE.
Kindly be informed that your position that
‘The Act as passed by the NASS has no automatic application, it has to be “domesticated” by each State House of Ass who reserves the right to modify it as they deem fit’
Is incorrect. A Bill duly passed by the NASS and assented to by the President becomes an Act. An Act takes automatic effect without any need for ‘domestication’ by any House of Assembly depending on whether the issue involved is on the exclusive legislative list or concurrent legislative list.
Where the issue covered by the Act is on the Exclusive legislative list, state Houses of Assembly are not empowered to legislate on it as such ltem is within the exclusive legislative competence of the NASS.
Where, however, the issue involved is on the concurrent list, both NASS and state Houses of Assembly can legislate on it. But once the NASS legislate on such an issue and a state House of Assembly also legislate on the same issue, the doctrine of ‘Covering the Field’ comes into play. By ‘Covering the Field’, any provision in the law made by the state which is inconsistent with any provision in the Act will be held void and of no effect to the extent of its inconsistency.
As such, once NASS validly legislates on an issue, there’s nothing like a State House of Assembly ‘reserving’ a ‘right to modify’ an Act as it deems fit.
Hello Myne, thank you for your article. I thought the reason for the protest is because some Nigerian senators have voted to scrap Section 29 (4) (a) of the Constitution; meaning children could be married off? Therefore that part of the Constitution will no longer exist?
Islam is a simple but firm religion, Islam is clear about all of its rulings,& there is no such thing as a half muslim, its either u are a muslim or not- and d Qur’an states clearly dat “there is no compulsion in religion” and also Allah says “enter into dis religion completely.. So it is not even possible 2 pass dat law dat will “remove the inability
of the house of assembly to make laws covering Muslim women and children,”. It is dat simple.