Child Marriage Law: Please, Let’s Elevate This Discussion By Egghead Odewale
Senator Ike Ekwerenmadu-led Senate’s Constitution Review Committee, in one of its numerous recommendations, proposed the deletion of Section 29, Subsection 4b of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The vote, which had already been taken and carried by the required two-thirds members of the Senate (73 of 109), had to be revisited when Ahmed Sani Yerima (ANPP-Zamfara West) invoked a point of order citing Item 61 of Part 1 of the Second Schedule of the Constitution. Even though he was initially ruled out of order, the Senate President, “considering the controversial nature of the clause”, acquiesced to the call for a re-vote.
I reproduce the whole of Section 29 of the Constitution hereunder:
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 this 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.
and item 61, Part 1 of the Second Schedule under the Exclusive List which gives the National Assembly the Legislative Powers to consider:
61. The formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto.
It is instructive to note that Section 29 falls under Chapter III of the Constitution in which the entire Chapter is devoted mainly to citizenship of the Federal Republic of Nigeria and all matters related thereto. Of all the eight sections under this Chapter (S25-32), Section 29 is devoted solely to renunciation of citizenship. Evidently, one cannot renounce what s/he does not previously have; hence the section appertains only to those who previously hold Nigerian citizenship. From the foregoing Section 29 as presented above, S29(4)b which was proposed for deletion had existed since the commencement of the Constitution on May 29th, 1999 and has operated without prejudice to any other provision(s) in the Constitution. For emphasis, this subsection is provided only as a proviso to S29(1) on which categories of citizens are eligible to renounce their citizenship.
To my mind, this subsection of the Constitution is highly discriminatory and gender bias but against the male gender. Notwithstanding, the provision is clear about whose right(s) are further strengthened under this clause. A man (married or not) and a woman (not married) have to be 18 years and above before they are eligible or able to renounce their citizenship of Nigeria, even if prior to this age they feel a compulsion to do so, the Constitution bars them from jettisoning their “Nigerianness”. I dare say that in the face of the multitudes of adversity confronting Nigerians daily and the pervasive discontent within the polity, a good number of Nigerians, given the free chance, would renounce their citizenship well ahead of this age whether or not it is a wise decision to make.
In addition, the provision went further to single out women who have additional rights by virtue of their marriage. I believe it is the contemplation of the drafters of our Constitution to ensure that a woman having been married can elect to abandon her Nigerian citizenship, given for instance, that she has been married to a non-Nigerian. Of course, this is not to preclude women who marry Nigerians but feel the urge to acquire citizenship of a different country and certainly, the clause was clear enough as to refer specifically, as ancillary, to the earlier provision of S29(1) which in my thinking is without prejudice to any other section/clause contained therein in the Constitution. I suppose also that the spirit behind subsection 4b is that you are first a Nigerian, then a woman under 18, then married and now seek to renounce your citizenship.
I do not think that S29 in whole or in part sets out to consummate, annul or dissolve any marriage or matrimonial cause(s) before a woman is 18 years of age as had been variously peddled and which has triggered wide protests and signature collections. I perfectly understand if Nigerians feel the need to champion a cause for the girl child and to protect their rights but to associate that with the retention or deletion of S29(4)b is a deliberate, willful but puerile misrepresentation of the Senate proceedings of last Tuesday.
If there is any iota of support I give to the numerous calls for the protest gatherings across the country to call attention to the desperate situation of child brides and to bring same to a halt in Nigeria, it will be in continuation of my 2010 opposition to Senator Ahmed Yerima’s marriage to his 17-year-old Egyptian wife (14-year-old as she then was) and not because he has moved the motion to keep subsection 29(4)b in the Constitution which, in my considered opinion, has absolutely no relation to whether or not a girl child should be married off as a minor. To think that this provision is not even beneficial to Yerima’s wife makes the entire episode misplaced.
Now, anyone who is truly interested in the situation of the girl child will delve into a potpourri of extant laws which legally defines what a marriage is in the Nigerian context. Besides, to imagine that a Federal Constitution for Nigeria will busy itself with such mundane issues as marriage comes as laughable as pedantic as it is. The applicable relevant laws on the rights of all children vis-à-vis marital causes include Child Rights Act 2003, Matrimonial Causes Act 1990, Marriage Act 1990, Marriage (Validation) Act 1990, Criminal Code (Southern Sates) Act 1990, and Penal Code (Northern States) Federal Provisions Act 1990.
Imperfect as the Constitution of the Federal Republic might be, it has far-reaching provisions that have been inserted to safeguard the rights and privileges of ALL Nigerians. For instance, Section 39(2) prohibits discrimination with respect to all citizens, including children. According to Section 15(2), national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited. Section 17(3) also mandates the government (federal, state or local) to direct its policies towards ensuring that all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment. Section 42(1) stipulates that a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions. (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his/her birth.
Essentially, there are sufficient provisions in the Constitution as well as a cocktail of supportive laws, which aim at protecting the rights of Nigerian children. Perhaps, these laws have not been duly implemented, or even invoked, to safeguard the lives of vulnerable Nigerians. I am sure there are sufficient citations in the various law libraries dotting the landscape espousing the justiceability of Chapters III and IV of the Constitution, but willful naivety is rife let alone to call attention to respect and implementation of these provisions at different tiers of society.
Still, there are gaps in these laws that have been explored by the Yerimas of this world. Evidently, there is not much to show for the actual enjoyment of the principle of non-discrimination by children. Children belonging to vulnerable groups, including girls, children living in poverty, children born out of wedlock, children with disabilities, children of outcasts and children from minority groups continue to face serious and widespread discrimination. To date, only 24 of the 36 states have domesticated the Child’s Rights Act passed in September 2003.
Interestingly, the federal Child’s Rights Act of 2003 defines a child as one who is below the age of eighteen years (Section 277, CRA 2003). However due to the federal outlook of Nigeria, state to state have their own definition of a child. As a federal entity, Nigeria does not have a uniform definition of a child. The available definitions differ and depending on the purpose for which the definition is required. As a result, the laws affecting children are scattered in different legislations. The 1999 Constitution, for instance, provides that a person can vote at 18 years of age but cannot stand for election. The Matrimonial Causes Act puts the age of maturity at 21, whereas the Immigration Act stipulates that any person below 16 years is a minor, while for the purpose of criminal responsibility, the Criminal Code provides for ages 7 to 12.
The Nigerian Marriage Act (LFN 1990 Cap 218) merely provides that parental consent is necessary for the statutory marriage of a person under the age of 21 years. Albeit, if a marriage takes place without such parental consent, the marriage does not become null and void but remains valid. The Matrimonial Causes Act (LFN 1990 Cap 220) does not help either. It only provides in Section 3 that for a marriage to be valid under the Marriage Act, the child must be of marriageable age but specifies no particular age.
The age of marriage is a highly controversial issue varying among the States. In northwest and north-central Nigeria, the age of marriage is set at 14. In the northeastern part, the age of marriage is between the second and third menstruation, while in the southern states it varies from 16 to 18 years of age. The age of sexual consent is 18 in most states (Sections 30, 31 & 32, L.F.N 2003, Cap C50). In the west zone, the age of marriage varies from 16 to 19 years, nonetheless the Child’s Rights Act par Section 31(3)(a)&(b) gave the age of sexual consent as 18 when it averred that “when a person is charged with an offence under this section, it is immaterial that (a) the offender believed the person to be of or above the age of 18 years; or (b) the sexual intercourse was with the consent of the child.
To wit, the instruments to challenge is not S29(4)b and the institution to confront is definitely not the Senate nor a certified deviant like Yerima. The Constitution is unwieldy enough and I even advocate that we prune down on all “non-essential” provisions therein. Why for instance should a solemn Constitution or a serious national parliament of a federal state busy itself with such issues as the marriage union? Those who have energy and have called for protests – and I commend them – should direct their passions at the various laws applicable in the states because I cannot see our Constitution (the Grundnorm) attending to all such issues as early marriage.
What is more, you have to be married first before S29(4)b can become applicable to you. There are sufficient extant laws that will continue to guarantee the marriage or betrothal of young girls, even if S29(4)b were to be torn from the Constitutional pages. Will a properly constituted law court grant a child marriage based on the provision of (4)b? I do not think so.
Egghead Odewale wrote in from Cambridge, Massachusetts.