Child Marriage Law: Please, Let’s Elevate This Discussion By Egghead Odewale

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 therequired 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 outof 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 ofthe Constitution hereunder:
29. (1) Any citizen of Nigeria of full agewho wishes to renounce his
Nigerian citizenship shall make a declaration inthe 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 anywar 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 29falls 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 thatyou are first a Nigerian, then a
womanunder 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 ordissolve 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 toSenator 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 marriageis in the Nigerian context. Besides, to imagine that a
Federal Constitution for Nigeria will busy itself with such mundane
issues as marriage comes aslaughable as pedantic as it is. The
applicable relevant laws on the rightsof 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
oradvantage that is not accorded to citizens of Nigeria of other
communities, ethnic groups, places oforigin, 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, whichaim 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 ofthis 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
livingin poverty, children born out of wedlock, children with
disabilities, children of outcasts and children fromminority 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 eighteenyears (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. The1999 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, theCriminal 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
remainsvalid. 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, theage 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 abovethe 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 suchissues 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 tobe 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.