by Oluwatosin Falaiye

I believe a large part of the raging debate lies is who exactly the law would construe to be a woman as stipulated in Section 29 (4) (b).

Nigerians generally have an uncanny ability to make light of any kind of situation, be it perilous, flimsy or even inconsequential. Our capacity to make a joke of situations even when passing on very vital information is undoubtedly second to none. This uncanny talent has again come to the fore in the very recent outcry over under age marriage and the seemingly stealth endorsement of same by the Nigerian Senate in its bid to amend the 1999 Constitution. In driving home our disgust with this development, Nigerians via the #childnotbride or #naPIKINnobeWIFE campaigns or protest across various social media platforms and select centres across the country came up with all sorts of slogans to drive home their grouse. Some of the stand out ones for me were “give the girl child a PEN not a PENIS, pay her school fees not brideprice, education not ejaculation and put her in a class room with books and not a bedroom to display her boobs” and “press her pimples not her nipples”.

Like a large number of Nigerians, I was moved by the many broadcasts backed up by display photos that I saw protesting the purported passage into law by the Senate of some bill that varies the provisions of the Child Rights Act by giving legal backing to underage girls to be given away in marriage and immediately be classified as persons of full age. Personally I had heard something off the radio about the variation of the age of marriage but like many other news stories I didn’t pay much attention, thus when I received several broadcasts, I immediately caught the fire of speaking against such obnoxious development. Without a second thought I decided to make out time to sign the petition both in long hand and online as well as encourage anyone I have contact with to also take a stand against this abuse of office by our senators.

However, shortly after initiating my campaign it dawned on me that I really wasn’t fully abreast of the developments against which I had resolved to be a frontline campaigner, so I decided to find out exactly what had brought us here. My findings not only brought me somewhat up to date but inspired me to consider from a professional stand point whether there is any justification for the now widespread public outcry.

Contrary to the impression created by most of the broadcasts sent and in the mind of teaming Nigerians, the Nigerian Senate did not pass any law that varies, amends or repeals the relevant and applicable laws to marriage or the recognized age of marriage in Nigeria. The massive outcry stems from the refusal to delete the provision of Section 29 (4) (b) of the Constitution in the ongoing amendment process. It is instructive to consider for avoidance of doubt the provisions of Section 29 (4) which states thus;

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

Some likely questions to bug the mind of anyone with a sixth sense may be, ‘what is subsection 1 about’, ‘under Nigerian law what qualifies as a marriage’ and lastly ‘who exactly is a woman and what qualifies one to be so addressed’. I would try to answer these questions in a most elementary manner such that any and every one can grasp the issues herein. First Section 29 generally deals with renunciation of citizenship which in simplified form means how to stop being a Nigerian. Subsection 1 of 29 provides that 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. This in other words connotes that anyone who is qualified as a citizen of Nigeria either through birth, registration or naturalisation and is of full age with a desire to quit being a Nigerian must in a bid to give effect to such desire make a declaration in the prescribed manner. Section 29 (4) (a) for the avoidance of speculation as to who exactly is of full age states that a person of full age for the purpose of subsection 1 (i.e. not wanting to continue as a Nigerian) is one who has attained the age of 18 and above. In an attempt to further expand the scope of who is of full age, paragraph b of 29 (4) provides that any woman who is married shall be deemed to be of full age.

The first reaction to this as a legal mind and in view of the ongoing protests and petition signing is that this section in fact has very little to do with marriage and is also incapable of the amending the laws with respect to marriage. I have also listened to seemingly sound legal postulations which I am sure many lawyers representing a client such argument favours would be quick to adopt. The position is that section 29 in its entirety deals with issues relating solely to citizenship and all canons of interpretation would not accommodate extending the interpretation of a section on citizenship to matters bothering on the age qualification to marry legitimately under Nigerian law and as such the ongoing protest is needless and Nigerians should channel their anger and outcry to more pressing national issues. This argument however laudable to my mind misses the point for the public outcry and protests and I would address this further down the line.

On the second question, which is what qualifies as a valid marriage under Nigerian law, the Nigerian legal system recognises two broad means by which a valid marriage can be instituted which are Marriage under the Marriage Act or through Customary Law (Islamic Marriage for all intents and purposes is classified under customary marriage in Nigeria). Marriage under the Nigerian law could thus be the union between a male and a female to the exclusion of all other persons or as customary law permits, the union between one male and multiple females (a limit of four under Islamic law). It is instructive at this point to note that under the Marriage Act, ‘minors’ are capable of getting married legitimately provided their parents consent to same and though customary law due to its predominantly unwritten nature is unclear as to whether or not minors can legitimately marry I believe it is safe to say that where there is parental consent most customs in Nigeria would grant recognition to such. With this in mind, one might wonder what then the whole fuss about the #childnotbride campaign is about. Again I am minded to remind you that though this is the law, it seems to be unconventional for parents to give away children in marriage where such children are not mature enough.

Having stated the above, I believe a large part of the raging debate lies is who exactly the law would construe to be a woman as stipulated in Section 29 (4) (b). This thought of mine got me searching the net and other legal resources for who a woman is in the eye of the law. In the wide sense, the term woman is normally used to address an adult female however it is very likely that in legal parlance, a narrow interpretation would be given to the word. Though the Interpretation Act and Black’s law dictionary make no particular interpretation or ascribes no meaning to the word woman, it is my opinion that there is a possibility for woman to be defined with attainment of puberty as the yardstick. However, the foregoing simply being the writer’s opinion, I also see no reason why the general usage of the word woman which connotes an adult female should and would not be given to it as such interpretation accords and is on all fours with whatever common sense is. Now this being the case, it is my humble opinion that where section 29 (4) (b) states “ANY WOMAN married…” the interpretation to be accorded same should not extend to situations where young girls or female children are given away by the consent of their parents in marriage. For whatever it is worth, the cloth of marriage can never make a child who is married a woman. At all times, a woman would be a woman while female children and young girls would always be girls whether or not clothed with the cloak of marriage in whatever form. If the argument about the meaning of woman holds any water, then it suffices to state that Senator Yerima’s argument that any WOMAN married under Islamic law is deemed to be of full age CANNOT and should not be extended to include young girls or female toddlers/children as his paedophilic tendencies would like the Nigerian Senate and public to swallow. Again on this premise some might feel that the protests are totally needless.

One thing must however be made clear, the #childnotbride outcry really is not about the inability of the Senate to delete or vary the provisions of Section 29 (4) (b) but the spirit and thinking behind the submission that led to a turnaround of the voting results after already fulfilling the two third majority required to delete the said provisions of section 29 (4) (b). Arguments of Senator Yerima, which no doubt stems from his desire to satisfy his paedophilic longings by hiding (albeit wrongly) behind Islamic legitimacy, is not only obnoxious and irresponsible but the singular fact that not less than 35 Senators had their minds changed after such submission is entirely worrisome thus showing the gross absence of quality in the legislations handed down by the senate and totally calls for more than is currently going on in other to save the future of our daughters from being mortgaged on the alter shamelessness and zero morals standards. If concerted effort is not put into sending a strong message to our legislators that Nigerians would not tolerate irresponsible legislation like the voting pattern on Section 29 (4) (b) shows, then it would be before our very eyes that legislations worse than one expressly jeopardising the female child’s chances of fulfilling her God given aspirations would be made law to which we all would be bound to abide by. If you have been indifferent get involved NOW! The girl child is not to be trampled upon, she is the future of every nation and we all must insist that she is a #childnotBride and #naPikinNobeWife.

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Oluwatosin Falaiye was President, Law Students Society (LSS) University of Ibadan .

 

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.