Roz Ben-Okagbue: Is the removal of S29 the answer to eradicating child marriage?

by Roz Ben-Okagbue

education in Nigeria

The long and short of it all is that just as Yerima argued in the Senate, the Nigerian legal system through Islamic and Customary law places no specific limitation on the age at which a girl can marry.

Last week Nigerians round the world witnessed the unfolding drama of the purported validation of child marriages by the Nigerian senate. To the horror of well meaning Nigerians, diasporans and even foreigners, the headlines “Nigerian Senate approves child marriage” went viral and led to an immediate frenzied widespread but largely uncoordinated response ranging from public denouncements of specific senators to petitions circulated on the social media.

Some senators attempted to respond and exonerate themselves but interestingly several demonstrated that they had little knowledge of what they voted about and one was even reported to have apologized in a flurry of tears as he had to face the wrath of his constituents. Yerima, the Senator who married a child last year had whipped up Islamic sentiment amongst his fellow Muslim senators and persuaded majority of them to vote in favour of the retention of a clause, the removal of which according to him would tamper with their right to practice Islam. His influence was so strong that even two Muslim female senators opted to abstain from voting rather than take a position against what they considered to be a religious issue.

It took at least two days before the truth finally emerged that the issue was not really about child marriage but citizenship rights and the determination of the age at which a woman could denounce her citizenship. The clause in question was in S29 (4)(b) of the Constitution which stipulates that a woman shall be deemed to be of full age for the purposes of denouncing her citizenship once she is married.  What this means is that she does not have to be 18 years old as is required in section 29 (4) (a) so long as she is married. In effect therefore if she is five years old but married, she can decide whether or not she remains a Nigerian citizen.

Whilst this section raises all sorts of questions about the mental capacity of a child to take such important life changing decisions simply because she is married, the most important implication is that it confirms that the Nigerian legal system recognises that there are indeed situations when a child under 18 can be married. The ensuing outrage due to the misunderstanding is justifiable but it is pertinent to understand that beyond the furore it has created, the offending section has no real significance and therefore its inclusion or exclusion is neither here nor there.  Now that the people’s outrage has been stirred and registered, the Senate has a responsibility to address the actual issue (which is child marriage and not s29 per se) and the people advocating change need to identify the origin of the problem and ensure that the Senate resolves it.

The need to end this ugly trend cannot be over emphasized as it has health, educational and social implications for the girl child. The impact is apparent in the areas where this practice is prevalent such as Northern Nigeria. A few months ago the federal school’s entrance examination results caused a major embarrassment when it was revealed that in some Northern states an aggregate of 2 was required to pass in comparison to an aggregate of 149 required by some of their Southern counterparts. What else can be expected when ill trained children are raising their own children before they become adults themselves? What can a semi illiterate 13 or 14 year old child possibly teach her children? The result is that illiteracy is being perpetuated from one generation to the next and it has an adverse impact on the opportunities open to the affected women in various aspects of life including governance as is demonstrated in the comparative analysis below.

It is also a proven fact that early marriages lead to poorly psychologically developed women who produce infants with late physical and cognitive development. Is it any wonder that in many Northern states, the moral and socio economic fabric is rapidly disintegrating and there seems to be little or no solution in sight? The youth in those states have no qualms about bombing, slaying and maiming people in the name of religion but the reality is that they are frustrated because they are ill equipped to do anything else.

The most disturbing factor however is the health implication of early marriage and childbirth. The young teenage body is neither equipped for sex nor childbirth and often results in vesico vaginal fistula (VVF) which is a condition that renders the girl child incontinent. Early sex has also been known to cause cervical cancer and other ailments. One can only imagine the pain and depression that these young girls are subjected to whilst their counterparts around the country are concerned with education and other teenage preoccupations such as social media and music.

Some argue that early marriage protects the girls from modern social ills such as promiscuity and unplanned pregnancies and therefore the practice should not be stopped. Tragically none of those advancing these arguments are willing to subject their own children to early marriage rather than education; nor have they come up with a solution to the social problems to the society caused by these early marriages such as Boko Haram and the rising waves of violence and terrorism in the North.

People like Yerima, argue that a law prohibiting child marriage would be un-Islamic. It is not clear whether Islam really allows child marriage or not; there are convincing arguments on both sides. Several predominantly Islamic countries such as Egypt have taken a bold and decisive step against child marriage regardless of that argument but it does appear however that Islam does not specifically prohibit it. Neither for that matter does Christianity or Judaism. In particular the Catholic doctrine (Canon 1083) allows girls to marry at 14 but also leaves room for the adoption of local laws.

The Bible does not particularly mention any specific age for the marriage of a girl but it recognizes marriage as a union between a man and a woman. ‘Girls are generally deemed to have attained womanhood from the beginning of menstruation which could occur between 8 and 14 years. Therefore reliance on any religious or customary laws may not necessarily be the way forward as none specifically prohibits child marriage which was a worldwide norm when most of them were established.

What then is required to stop Yerima and his ilk from taking advantage of religion and custom to apply self serving rules? S29 (4) (b) recognises that child marriage can be legal so we need to examine which law this recognition is derived from and expunge it otherwise all this outrage and petition signing would amount to an exercise in futility.

The relevant laws here are the Child Rights Act, The Marriage Act, The Matrimonial Causes Act and the Marriage Validation Act which all appear to govern the issue of child marriage. The Child Rights Act 2003 is the most unambiguous as it states in clear terms that no child (below 18 years) can contract a valid marriage or be betrothed and such marriage or betrothal if it occurs is null and void (i.e. does not exist). In addition s23 of the act prescribes punishments of N500,000 or 5 years imprisonment or even both for anyone who marries a child. The Act offers no exceptions nor does it mention any religious or customary law; hence if it were applicable throughout the federation it would have put the matter to rest once and for all.

However the Child’s Right Act requires domestication by each state government to be applicable within that state. Unfortunately it has only been adopted by 16 states whilst in 20 states mostly Northern Muslim, it is yet to become governing law. The reason for this is not necessarily because of the child marriage issue only but because other aspects of the Act such as child adoption are disallowed by Islam and other complications could arise from its application.

Where the Child Rights Act has not been domesticated, then the only other applicable laws are those stipulated in the Marriage Act 1990 and Matrimonial Causes Act. So what do these provide? The Marriage Act states in S18 that the consent of the father or in his absence the mother is required for the marriage of any person below the age of 21 (described as a minor). In effect it suggests that such a marriage is valid so long as the consent of the parent is obtained. S48 prescribes a punishment of two years imprisonment for anyone who knowing that there is no consent marries or procures such a person for marriage. This would suggest that the marriageable age is 21 years.

S3 of the Matrimonial Causes Act 1990, takes it a step further by declaring a marriage with a person below “marriageable age” (presumably 21 years since no other age is specified) void. The Nigerian Constitution throws no further light on the age limitation however in s61 of the Exclusive Legislative List, it limits the marriage issues within its scope to all except those governed by Islamic or Customary law. For purposes of explanation, the Exclusive Legislative List which is contained in Part 1 of the Second Schedule deals with specific items which only the National Assembly can legislate upon to the exclusion of the State and Local Governments.

The long and short of it all is that just as Yerima argued in the Senate, the Nigerian legal system through Islamic and Customary law places no specific limitation on the age at which a girl can marry. The only states in which the age limit of 18 as stipulated in the Child Rights Act can be enforced are the states that have domesticated that law. Customary law which is also excluded from the scope of the Marriage Act does not place any specific restrictions on age so if a Christian so chooses, he can marry a minor under customary law in any state where the Child Rights Act has not been domesticated and still not have committed a crime.

There are therefore two available options to resolve this issue. It is either that the state governments are pressurized to domesticate the Child Rights Act which may be almost impossible because of the religious implications to the Northern Muslim states or the Senate is persuaded to show true commitment by passing a clear law (not s.29) that outlaws child marriages and places the age of marriage at 18 without any exceptions whatsoever. If David Mark, Ike Ekweremadu and all other senators who have claimed that child marriage is repugnant to the Senate are really sincere, then they should demonstrate this sincerity now and push for a bill that settles the matter once and for all and that will not be achieved by removing s29 (4) (b)!



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

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