My opinion on Section 29 (4) (b) of the 1999 Constitution I was asked by many of my friends to give a “legal” opinion on the recent debate on the “age of marriage,” ignited by the attempt to amend section 29 (4) (b) of the 1999 Constitution by the senate of the Federal Republic of Nigeria. As a lawyer, I’m closely following the debate on different forums. I am disappointed that many of the people engaged in the debate did not actually understand the issues or the law. Those who are supporting Senator Ahmed Sani Yerima assumed that it is a plot against Islam and an attempt to impose western values on them. Those supporting the amendment believed that they are fighting to save young girls from the abuse and exploitation of “child marriage,” which they argue is promoted by Section 29 (4) (b) of the constitution. Both sides are wrong. The amendment is not about the age of marriage. Without understating the dangers of “child marriage,” which I am going to touch later, age of marriage is only used as a red herring. What, then, are the issues? Section 29 of the 1999 constitution talks about the right of a Nigerian citizen of “full age” to renounce his/her Nigerian citizenship. “Full age” for the purpose of this section was defined as 18 years and above. But subsection 4 (b) made an exception for married women. According to the contentious clause in Section 29 (4) (b), “any woman who is married shall be deemed to be of full age.” Is this clause a good or a bad thing? Those who are supporting the amendment (deleting) of Section 29 (4) (b) in the senate argue that the section is discriminatory against women and promotes child marriage. In my opinion, this is a mischaracterization of section 29 (4) (b). It has nothing to do with regulating the age of marriage. It applies to women who are already married. In fact, one may argue that the clause actually is an empowerment to married women by giving them the power to renounce their citizenship, irrespective of their age, if they so wish. Why is this issue so controversial? There are two possible explanations. First, the objection against the amendment of section 29 (4) (b) on the floor of the senate was made by Senator Ahmed Sani Yerima, former governor of Zamfara State, and the person who introduced Sharia in his state in 1999. Senator Yerima was criticized by many Nigerians in 2009 for marrying an Egyptian girl that was said to be below the age of 18 years. Some members of the senate and the public assumed that because it was Yerima that raised the objection against the amendment, he must have had a sinister motive of promoting child marriage. Secondly, Yerima didn’t help matters when he attempted to use religion to argue against deleting the clause. On this issue, the Senate was unfortunately divided along religious lines. Majority of the Muslim Senators from the North supported Yerima and majority of the Christian senators from the South supported the amendment. There are few senators who didn’t vote in this sentimental and polarizing way. What happened in the Senate was followed by heated debate on the social media. Many self-appointment scholars used the occasion to give religious justification to a matter that has nothing to do with religion. Haters of Islam also use the occasion to criticize Islam and Muslims. I want to point out that the National Assembly has no constitutional power or jurisdiction over marriages conducted under Islamic law and customary law. Majority of the marriages in Nigeria were conducted under customary and Islamic law. According to item 61, Part 1 of the Second Schedule under the Exclusive List which listed matters over which the national assembly has legislative powers, the power of the national assembly is on “The formation, annulment and dissolution of marriages other than marriages under Islamic law and customary law including matrimonial causes relating thereto.” Whether this is a good or a bad thing is a separate debate. It is clear, however, that only states have the legislative power to enact laws on Islamic and customary marriages. That is why the Child Rights Act, which is against child marriage, passed by the National Assembly into law, is only applicable in states that have passed the Act into law. Majority of the states in Northern Nigeria are yet to pass the Child Rights Act into law. Unfortunately, even in states that have passed the Act into law, it is rarely enforced. Now I will talk on age of marriage. There is no uniform age of marriage in Nigeria, just like there is no universally accepted and enforceable age of marriage. Age of marriage remains one of the contested issues under the women’s rights and child rights discourse. Many countries have rejected any standard age of marriage on religious and cultural grounds. In 1954 the British colonial administration in Northern Nigeria enacted a law that gave the Native Authority power to legislate on issues related to “regulating child betrothal” and “controlling the movement of children and young females from or within the area.” This obscure and unpopular law was used only in Biu, Idoma, Tiv and Borgu marriages. The marriageable ages laid down were 12, 13 and 14 respectively. Under Nigerian family law, like many other countries, marriageable age is one of the preconditions for the validity of marriage. The Nigerian Marriage Act is silent on age of marriage. It is also unclear what marriageable age is under the customary and Islamic law -- the two major legal orders that govern marriage in Nigeria. Neither the Marriage Act nor the Matrimonial Causes Act prescribes a minimum age for marriage in Nigeria. The Marriage Act, under section 3(1)(e) merely provides that a marriage will be void if either of the parties is not of marriageable age. The only clear legal framework on age of marriage is the one provided by international treaties. Nigeria is a signatory to some of these treaties. If you are interested in understanding the provisions of international law on this issue, you should look at Article 16 of the Universal Declaration of Human Rights (1948), Article 1 (c) of Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956), Articles 1,2, 3 of Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1964), Articles 2 and 16 of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979), Article 12 of The International Covenant on Economic, Social and Cultural Rights (1976), and the Convention on the Rights of the Child (CRC) (1989). These treaties are not directly applicable unless they are domesticated by the national Assembly and in some cases by states. Social reformers across the globe have acknowledged the limits of law in controlling cultural practices that are embedded in people’s way of life. I think law by alone cannot solve the problem without removing the underlying causes. I find the following as effective (non-legal) means of addressing the problem of child marriage. Ensure enrolment, retention and completion of girls in schools at least to secondary school level Provide vocational training and continue education for married women Make schools girl friendly Engage teachers to help in halting early marriage—they can help explain the law to parents, importance of education and report violation to community leaders Eradicate abject poverty which pushes many parents to remove their children from school Education, education, education ----from my Bar. Gamawa
Posted on: Sat, 20 Jul 2013 19:46:46 +0000
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