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#ChildNotBride – Who Is Responsible? State, Parents or Both?

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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?

Photo Credit: blackyouthproject.com
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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.

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 an LLM from the London School of Economics. She’s committed to the (re)education of people on trending legal issues

26 Comments

  1. mimi

    July 23, 2013 at 12:31 pm

    You make your arguments well. However, I still think we’re as a society are all responsible to some extent. If we all continue to be complacent regarding such laws and ways of thinking, then they would persist for much longer. We might not be able to protect the families or children who have been affected by this section of the law already and in all honesty, we might not be able to do anything about these laws anytime soon. However seeing the activist posters and talking about it will hopefully permeate into our social consciousness and just might protect some innocent and unassuming child(ren) in future.

  2. Adams Ede

    July 23, 2013 at 12:53 pm

    The Parents. For the reasons you stated above that they didn’t need any constitutional law to do the things they’ve done to their children as they were growing up. My fear about all of this is that giving out children in marriage happened long before this uproar came about (That’s obviously why Yerima and his cohorts see nothing wrong with it) and will continue to happen even when it dies down. But if the parents never gave their daughters out in the first place we wouldn’t have this issue at all. So its the fault of the parents thru and thru.

  3. amaaa

    July 23, 2013 at 1:17 pm

    lindaikeji.blogspot.com/2013/07/senator-yerima-and-constitutional.html#more
    Please read this piece by Mayram Uwaise Mr Objective Lawyer and see why people where shouting at the top of their voices

  4. Blacky

    July 23, 2013 at 1:19 pm

    My thoughts exactly. I watched Stella Damascus video and although I understood her indignation, I felt some of her statements were misguided. First, Yerima is not seeking to make under age marriages legal – it is already legal! Let us not forget that the Senate session where all these arguments transpired was a constitutional amendment session and Yerima objected to the amendment of S. 29 of the CFRN. This means that before now, the CFRN has overtly and covertly legalized under age marriages. Secondly, before now under age marriages had passed the notoriety test and were even recognized under the laws of Nigeria. Let us not fight for the National Assembly to amend s.29 of the CFRN. Let us rather fight for our law makers to include provisions in the CFRN which clearly outlaw under age marriages.

  5. DeMorrieaux

    July 23, 2013 at 1:36 pm

    I could be very wicked if I wanted to. I could forget there was a God, relinquish all decency and fear, and do and un-do. I could probably commit all moral and spiritual wrongs. And yet, in all my wrong-doing, I would make sure I safeguarded my loved ones. You see, in all my wickedness I would yet protect my own.
    People go about causing havoc and destruction; which is bad, very bad, fair enough, but once you turn against your own, you’re definitely operating on another level.
    I could even see as far as going against your own relations, but the one you gave birth to yourself? To me, this is not a question of the Law. Or maybe it is. Maybe it’s the wrong one. Much more appropriate would be “Should everyone be allowed to have kids?” And no, this is not in support of abortion either. Some people should simply not have the right parenthood. If you do not will to keep, protect, shield and defend your own, don’t have your own. Simple.

  6. noni moss

    July 23, 2013 at 2:10 pm

    In my opinion, it is better to speak now, than disregard the clause because it refers to citizenship. Simply because it could create a legal loophole; we know criminals commit crimes and then hire expensive lawyers to get them out of trouble based on loopholes in the law. So let the constitution be amended, let the clause be removed as originally intended. Let clarity be provided. Because we have to consider the plight of innocent children who may be orphans left in the care of a relation, friend, someone etc, who can be tempted with money to dispose of them to pedophiles; and later hide under this same clause. Let clarity be provided, remove any possible legal loopholes. It is the right thing to do.

  7. Olori

    July 23, 2013 at 2:23 pm

    My thoughts here

    sayolori.wordpress.com/2013/07/23/childnotbride-na-so-yimu/

  8. say what?

    July 23, 2013 at 2:43 pm

    Both are Responsible but more the state……………..you can say the parents are the cause all you want but the government and its laws are also responsible for its citizens…..so yes the campaign is absolutely targeted at the right audience!!…because if everyone knows its illegal at least the kid/child would know they can report to the police or seek legal action…..where parents have failed the government is to take over…….NOT EVERYONE THAT GIVES BIRTH TO KIDS IS A GOOD PARENT……if the parents where drug addicts/drunkards would you ignore the kid?…a case where a father rapes his daughter should she not report because he is her father? a case where a child is beaten till they bleed should the state not be able to protect them?……..not all parents are literate or sane enough to take care of their Kids/offspring….even in so called civilized or western places there are social services available for when parents have failed their offspring….child Marriage and Pedophilia is a serious crime! i beg you to please talk to abused victims or child brides and ask if they wont have loved the state to intervene!…..how many Nigerian Kids can talk back or ignore their parents wish?….yes there is so much bruhaha about the issue but it is totally worth it!……..the government/state has a duty to protect its people…………..to think that people are coming up with issues or trivial arguments such as this to try and demean this case is extremely annoying….honestly bella i am totally pissed you even approved this writer, not to talk of the comments supporting it…

    • say what?

      July 23, 2013 at 2:51 pm

      it does not matter if it already exist or that most Nigerians dont understand what they are fighting for …at the end of the day everyone understands something.. Child marriage is wrong ..and its good it has been brought to the attention of the public and people are speaking out……whether it is talking about citizenship, constitution o it still leaves the door open for child marriage…

    • Miss M

      July 23, 2013 at 3:08 pm

      LOL. What’s the point in being aware of a policy issue, fighting for it, speaking out, etc when you are drumming to the wrong ears, or singing the tune to another song? Child Marriage is wrong- the author does not dispute that- but for the campaign to have an impact, it should be founded on the right legal base and it should be targeted at the right audience (parents and the State, as you suggest). Perfect example is the online “petition to the UN” that most of us signed; if you read the portion of the UN Charter the author mentioned, you would realise that the online petition lacks legal foundation and would be disregarded by the UN so we all wasted our time.

    • Tox

      July 23, 2013 at 4:11 pm

      So you have decided that the best thing to do is nothing??? Once you hold the right facts, you should redirect your anger to the right place – not give up.

  9. Adams Ede

    July 23, 2013 at 3:28 pm

    And when the shout out for the removal of this law dies down what next? If that ignorant parent gives out their kids in that part of the country we will never go to, will we be able to stop it? (That’s if we even get to know of it at all..) I say this cos there is an entire region of this country where this goes on and they defend it with the “according to my religion…” joke. So the parents have a lot to do in this regard. The State? Really? Wasn’t it “The State” that made us have this hullabaloo in the first place? Have you seen anyone from “The State,” especially from the north come out to speak against it? Trust me, no help will come from that angle at all. Its just let the status quo continue stance they’ll take. So its up to the parents and the peeps around them who can really stop this menace.

  10. Tox

    July 23, 2013 at 4:08 pm

    Parents ke? Parents only know as much as their own experience dictates. Some parents actually do starve, beat, or otherwise abuse their children. Fact.

    In the majority of spheres, the introduction of law drives behaviour. Highway codes lead to better driving, legal guidelines on environmental management leads to a reduction in negative impacts, making rape within marriage an actual offense led to people understanding that abusive relationships are not normal (I’m not speaking specifically about Nigeria but the world at large).

    Whatever the actual legal points, we all now know that children can get married legally in Nigeria. And we must continue to be angry, to petition, to seek change…the anger itself will eventually spread knowledge to those areas where there is ignorance.

    And look, when something is enshrined in law, there is then recourse when the law is broken. Sometimes the legal system works, sometimes it feels like it doesn’t but that’s no reason to leave things as they are now in Nigeria. We need change, and quickly too.

    • Miss M

      July 23, 2013 at 4:34 pm

      Nobody is saying we should give up. Just that we ensure that our “anger” is directed to the right place if not, it’ll all be for nothing

  11. dimpled freak

    July 23, 2013 at 4:34 pm

    @ SAY WHAT you hit the nail on the head. I am really disappointed that you used your powerful platform allowing this writer to write such an article at this time on such a sensitive subject . I am all for the double sided coin but this was not the time to have this writer diminish the efforts made to protect our children. Yes the parents in an ideal world are supposed to protect their children but as mentioned above not all parents are good parents which is why the LAW is supposed to protect our children when the parents fail, so Mr. Writer we are not wasting our time or targeting the wrong person the law is stable and un emotional while parenting is not. Like Stella Damascus said where is ‘The Mother of the Nation’

  12. Ani

    July 23, 2013 at 4:39 pm

    @ Bella have you seen the write up on “Senator Yerima and Constitutional Review” by Maryam Uwais. I think you need to read it and possibly put it up for your readers.

  13. Frappe mocha

    July 23, 2013 at 4:48 pm

    But why leave the matter to parents entirely. Don’t you know there are good and bad parents? There still had to be legislation in place to protect children who have parents that will want to make bad decisions for them out of greed and so many other factors. The government also has a big role to play in the matter. Bad parents are there, some will even force their children to get married, whether they like it or not. Who is to protect children such circumstances if not the government???

  14. nnn

    July 23, 2013 at 4:50 pm

    Don’t you know.?/ The mother of the nation —

  15. tatafo!

    July 23, 2013 at 5:14 pm

    Me I’m confused o…is it section 21 or section 29 that people are up in arms about?

    • mademoiselle

      July 23, 2013 at 5:36 pm

      section 29(4)(b) of Naija’s constitution

  16. nnn

    July 23, 2013 at 5:30 pm

    The MOTHER of the nation. P. Jonathan is indeed a great mother.

  17. phummie

    July 23, 2013 at 6:23 pm

    Na wah for some of these comments o…. so bcos it happens in oda parts of d country and dey believe in it, so, pple like us that dont believe in it should keep quiet… Who speaks for these children if and wen their parents fail dem….. Am so pained that this write is coming at this critical time, good question/debate but definately wrong time…. i think we should speak to some abused children around us and know how it feels, let alone d one that has no voice and is just given up in marriage to an old hag for d rest of her life.

  18. OK

    July 23, 2013 at 7:12 pm

    Everyone…children can’t make intelligible decisions on their own so they need to be protected.

  19. Funke

    July 23, 2013 at 7:56 pm

    I think the issue of child marriage needs all the attention it can get and we must not let it stop, we should continue to shout it from the roof tops till we are heard. Though the constitutional review was not about child marriage but it is very good that we are now discussing it. I hope that a member of the house will be bold enough to propose a bill on it, it will be difficult and hard but I believe it can be done, it might not be the right analogy but if Mandela thought about the obstacles ahead, he might not have taken the first step. Ignorance is a disease, the people must be enlightened, the imans and emirs must come on board, it must be discussed in schools, mosques. No one should be sentenced to a life like that, no one. Stephanie’s film must be shown to all and most importantly, they must be educated, education empowers, it opens up your mind, there must know that selling off vulnerable babies is not the answer to their poverty eradication. We must not let this discussion stop, Mariam Uwais wrote a comprehensive piece on it, that is a good start, all hands must be on deck

  20. NNENNE

    July 24, 2013 at 2:00 am

    My answer is… All of the above.

  21. Adebola

    July 24, 2013 at 8:23 am

    ‘do parents really need laws (and threat of criminalisation) before they realise that the rights of their children need to be protected?

    ‘……….. errrr YES!!! Thats why developed countries have laws/watchdogs/ organisations dedicated to the protection of children from domestic abuse. Not every human being is born with the necessary parts in their brain to be a good or responsible parent.

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