#ChildNotBride – Who Is Responsible? State, Parents or Both?
The recent Constitutional Review carried out by the Nigerian Senate
caused agitation and uproar, when the Senate resolved to retain section
29(4)(b) of the Constitution of the Federal Republic of Nigeria (CFRN).
Taken literally, this provision of the CFRN provides that for the
purpose of renunciation of Nigerian citizenship, any woman is deemed to
be of full age. After this resolution, Nigerians home and abroad began a
campaign- #ChildNotBride- on the premise that the retention of this
provision of the CFRN somehow endorses child marriage. I have written a
seminal piece on this misguided premise, so I would spare you the
details. It suffices to say that section 29(4)(b) CFRN does not endorse
child marriage- if this provision is deleted, it still does not affect
the fact that under Customary or Islamic Law, child marriage is not
prohibited.
It is shameful that while our neighbours like Ghana are planning to
increase d marriageable age from 21 to 23 years, Nigeria is debating
whether or not child marriage should be allowed. Simpliciter, child
marriage is repulsive, reprehensible, appalling, abhorrent, etc. Sorry
to disappoint those that signed the online petition to the United
Nations (UN) which, in my opinion, is for the right cause, but was
rather hasty and misguided. Unfortunately, it will not be considered by
the UN because it seeks intervention in matters of a purely domestic
concern and Article 2(7) of the UN Charter clearly states that the UN
shall not intervene in such matters- it is an affirmation of the
doctrine of non-intervention in international law, which is a corollary
of the principle of sovereignty. If the UN had such competence, why has
it not intervened in Saudi Arabia?
Be that as it may, as an objective lawyer, this article is not about
the condemnation of child marriage; it is about who should be held
responsible? Who should the #ChildNotBride campaign be targeted at-
National/State Houses of Assembly or the parents of the victims of child
marriage?
First, the CFRN safeguards a person’s right to religious freedom,
which is also guaranteed by international instruments like Article 18,
Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights, and Article 8, African Charter on Human and
Peoples’ Rights. Nonetheless, this right to religious freedom is not
absolute; it is subject to restrictions “
in the interest of … public
order, public morality or public health or for the purpose of
protecting the rights and freedom or other persons” (s.45 CFRN).
Further, Item 61 on the Exclusive Legislative List (ELL) in the CFRN
prohibits the National Assembly (NASS) from legislating on matters
involving marriages contracted under Islamic or Customary Law. As such,
NASS may only restrict a person’s right to religious freedom in the
context of legislating on a minimum marriageable age, if s.45 CFRN is
satisfied.
Second, if NASS is able to satisfy s.45 CFRN on grounds of public
morality or public health or for the purpose of protecting the rights
and freedom of children (as protected in the Child Rights Act (CRA)),
before such legislation can be passed, Item 61 on the ELL has to be
amended in order for NASS to have legislative competence over marriages
contracted under Islamic or Customary Law. The procedure for amendment
is rigorous (see s.9 CFRN) and considering that the main target of such
law is Islamic marriages, it is debatable whether the Northern State
Houses of Assembly would vote in favour of such amendment.
Third, three subsisting statutes have to be considered when
discussing the issue of legislation on child marriage- the CRA, Marriage
Act (MA) and Matrimonial Causes Act (MCA). Sections 21 to 23, CRA
prohibit child marriage (marriage of a child below 18 years) and
betrothal and makes infringers of such provisions criminally
responsible. On the other hand, section 18, MA allows the marriage of
persons below the age of 21 years and is valid provided that consent
from the parent(s)/guardian(s) is obtained and failure to obtain such
consent is a criminal offence (section 48 of the MA). However, section
35, MA states that nothing in the MA shall affect the validity of
marriages under Customary Law (and Islamic Law by implication).
Therefore, the age restriction or consent requirements do not apply
to Customary or Islamic Law marriages. Finally, section 114(6) of the
MCA states that the MCA does not apply to Customary or Islamic
marriages, thus making section 3(e) of the MCA which voids a marriage
where either party is not of marriageable age (which is interpreted
through the MA as 21 years), inapplicable to Customary or Islamic
marriages.
Considering the three matters discussed in the preceding paragraphs,
one can see that due to the nature of the Nigerian legal system and the
Constitution’s attempt to allow customary and Islamic Law exist in
parallel to State law, it is not surprising that there are loopholes in
the system. This does not mean that such loopholes are excused; it
therefore falls on the legislature (Federal and/or state) to cure these
loopholes in order to effectively prohibit child marriage. As such, it
may be argued that the issue of responsibility for child marriage in
Nigeria is one that falls squarely on the shoulders of the State.
On the other hand, what can one say of the parents that consent to
the marriage of their underage children? Provided that consent is
obtained, a child can be married off under Islamic and Customary Law and
also under marriages to which the MA applies e.g. court or church
marriages.
So, the issue of consent cuts across all corners. Some have argued
that the solution to this problem is the criminalisation of child
marriage. Although that is an interesting argument, do parents really
need laws (and threat of criminalisation) before they realise that the
rights of their children need to be protected?
Consider the following:
• The right to life: under international law, starvation may be
considered as a threat to an individual’s right to life. Did your
parents need the CFRN to codify this fundamental right before they fed
you?
• The right to freedom of movement subject to parental control: Did your
parents need a law to guide them before they imposed curfews and
attempted to monitor your free movement?
• The right to a name: Did your parents need international law or NASS to tell them that you have a right to be named?
These are some of the rights of the child which parents take
responsibility for without having to wait for legislative guidance or
compulsion. Parents have certain duties and responsibilities and should
comply accordingly. If parents enforce these rights out of initiative
(as parents) and not because of fear of criminal prosecution, why should
they be guided on the protection of their female children from rape,
sexual assault, and the other painful results that come with the
territory?
Inasmuch as the issue of child marriage is to be condemned, before
joining the bandwagon of activists, one should consider who the
responsibility should fall on. A campaign is only effective if it is
targeted at the right audience. At what point does State responsibility
end and parental responsibility begin? Who should be responsible- the
State, the parents, or both?
Credits
Mavi Mudiaga is a Nigerian Legal practitioner,
writer and recipient of several academic scholarships and awards. She
holds a First Class LLB(Hons) from the University of Buckingham, and is
presently an LLM student at the London School of Economics. She’s
committed to the (re)education of people on trending legal issues. Her
website is mavisblawg.com.
