Tolu Ogunlesi
The
last time the Nigerian Constitution was in the news like this, the
spotlight was on Section 145. And, that was in 2010. It took the Senate
President, David Mark’s ingenious “Doctrine of Necessity” to resolve the
matter. Three and half years later, it’s Section 29 that’s in the news.
This is what happened last week. The
Senators, having previously voted, as part of the ongoing constitutional
amendment, to expunge Section 29 Part 4b (S29(4)b), which introduces an
element of ambiguity into the age at which a female is considered old
enough to be able to renounce Nigerian citizenship, succumbed to the
opposing arguments of Senator Ahmed Yerima (ANPP/APC; Zamfara West), and
repeated the vote. At this second vote, those in support of the
deletion failed to muster the required two-thirds majority; meaning that
the clause will now stay in the amended constitution.
This is what that controversial section says:
S29(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.
S29(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.”
S29(4)b is therefore to be interpreted
to mean that a female who less than 18, and who wishes to renounce her
Nigerian citizenship, shall be able to do so, as long as she is married.
Senator Yerima’s stance is of course connected to the fact that he
believes that on the basis of his religion, Islam, he is allowed to
marry a girl of any age. In 2010, he married, in Abuja, a 13-year-old
Egyptian girl.
The controversy throws up a number of interesting issues:
One. S29(4)b is primarily to do with the
conditions under which a person can renounce their citizenship of
Nigeria. It was not intended by the Constitution to prescribe anything
relating to marriage or marriage age. Looking at it again, S29(4) starts
out by restricting the scope of its interpretation to S29(1) –
renunciation of Nigerian citizenship. In other words, it does not expect
to be applied outside of the consideration of the conditions under
which a person can renounce their citizenship of Nigeria.
Two. That section of the constitution
was written at a time when it was permissible in Nigeria for a person
younger than 18 to be married. Now that there is a Child Rights Act in
place which clearly states that, “No person under the age of 18 years is
capable of contracting a valid marriage, and accordingly, a marriage so
contracted is null and void and of no effect whatsoever”, S29(4)b has
been rendered irrelevant, and should indeed have been deleted. The
failure of the Senate to delete it is no doubt worthy of condemnation,
and suggests the worrying possibility that a good number of our
lawmakers are wallowing in ignorance of the laws of the land.
Three. Interpreting what happened in the
Senate last week to mean that underage marriage is now legal or
authorised in Nigeria does not seem to me an accurate, useful, or
insightful response.
The Nigerian Constitution, apart from
investing the Sharia Court of Appeal with the “(competence) to decide
any question of Islamic personal law regarding a marriage concluded in
accordance with that law”, does not by itself prescribe any minimum age
of consent for marriage.
What it does is recognise, via S29(4)b,
the possibility that the minimum age for marriage could be less than 18
(In England, Wales and Scotland for example, the minimum age is 16 –
England and Wales have parental consent requirements for persons younger
than 18; Scotland doesn’t, which means that 16 and 17-year-old English
and Welsh youths can circumvent their home laws by travelling to
Scotland to marry without parental consent).
The refusal of the Constitution to
stipulate a minimum age of marriage is in my opinion an acknowledgement
of the fact that there should be other laws whose duty is to deal with
such matters as marriage. I do not think it is the duty of the
Constitution to descend to the level of enacting rules for matters of
human relationships that can and should be taken care of by specialised
laws.
In the case of a minimum age for
marriage, such a specialised law exists. In 2003, the National Assembly
passed the Child Rights Act which is unambiguous in its prescriptions,
and is intended to clear the confusion arising from the profusion of
laws relating to the minimum age at which a person can be married in
Nigeria.
According to Sections 21 to 24 of the Act:
21. No person under the age of 18 years
is capable of contracting a valid marriage, and accordingly, a marriage
so contracted is null and void and of no effect whatsoever.
22.—(1) No parent, guardian or any other
person shall betroth a child to any person. (2) A betrothal in
contravention of Subsection (1) of this section is null and void.
23. A person—
(a) who marries a child; or
(b) to whom a child is betrothed; or
(c) who promotes the marriage of a child; or
(d) who betroths a child commits an
offence and is liable on conviction to a fine of N500,000 (five hundred
thousand naira) or imprisonment for a term of five years or to both such
fine and imprisonment.
Now, this is where the problem starts.
The Child Rights Act does not automatically apply across Nigeria. It has
to be “domesticated” on a state-by-state level. State Houses of
Assembly have to adopt the legislation in their states. Alas, in the
decade since the law was passed at the Federal level, up to 12 states
have failed or refused to adopt it. (You will realise that the list of
Senators who voted against the deletion of S29(4)b significantly
coincides with the states that have yet to adopt the Child Rights Act.
That tells you where the problem lies). Meanwhile, a state like Lagos is
already working hard to further strengthen the provisions of the Act –
the state House of Assembly is currently debating stiffer penalties for
sexual abuse of children.
So, what is the way forward?
This is what I think. We should be
putting pressure on the Houses of Assembly and governors of the states
that have refused to adopt the Child Rights Act; and on the judiciary
and law enforcement agents to ensure the implementation of the law in
every state in which it’s already in force.
We should also put pressure on the
Nigerian government to sign up to the United Nations’ Convention on
Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages, which compels signatories to “take legislative action to
specify a minimum age for marriage” and empowers such a legislation to
supersede all “customs, ancient laws and practices” inconsistent with
it.
Now that the Senate – through the
decision of Senate President David Mark to revisit an already settled
matter – has done its worst, all concerned citizens, irrespective of
religion, class or ethnic group need to immediately shift the
battleground to the state Houses of Assembly in the 12 or 13 states that
have yet to adopt the legislation.
And this is where First Lady Patience
Jonathan ought to step in. The Office of the First Spouse, if there is
any of such, exists, in my opinion, for a time as this, to bring its
considerable influence to bear on matters that affect the lives and
welfare of society’s most vulnerable.
And this controversy ought to provoke
some soul-searching amidst us, regarding our attitudes towards child
labour. It is the height of hypocrisy to condemn the Senate for what
just happened, whilst we ourselves are keeping and maltreating
11-year-olds in our homes in the name of “house-help”. Standing up for
children’s rights means standing up for all the rights of a child – not
just the right to not be married off, but also the right to be given an
education, and to be treated with dignity and respect.
Finally, in a secular state like
Nigeria, politicians need to stop using religion as a political tool
(Yerima seems adept at this; recall he kick-started the Sharia
controversy in 1999).
In ending this, let me also just point
out one interesting fact: Available statistics indicate that Zamfara
State, the state where Yerima was governor for eight years, and is now a
Senator, has the second-lowest school attendance rate in Nigeria. But
the man isn’t losing any sleep over that disgraceful scenario.
The only thing capable of making him
stay awake at night, it seems, is any attempt to get him to see the
impropriety of insisting on marrying teenage girls. Who needs a Senator
like that?
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