Professor Bolaji Owasanoye, Executive Director of Human Development Initiatives, and member, Lagos State Child Rights Implementation Committee, analyses the Sharia law, the Penal Code and the Child Rights Act.
What becomes of Wasila Umaru, the child bride who killed her 35-year-old husband, especially as the girl has confessed to the act, justifying it on the grounds of forced marriage to a man she didn’t love?
This unfortunate incident arose from the prevalent but harmful practice of child marriage in parts of Nigeria especially the North.
According to a recent UNICEF Situation Analysis of Women and Children in Nigeria, the average age of marriage nationwide is: North West 14.6; North East 15; South East 20.2; South West 20.2; North Central 17. From there statistics, the region with the lowest age of marriage is the North West.
The practice of child marriage is commonest in northern Nigeria and is strongly linked to religious and cultural beliefs which ignore the physical and emotional limitations of the girl-child for marital and parental responsibilities.
The practice is also rooted in the reluctance of the North to invest in Western education, an attitude that forms one of the misconceived grievances of Boko Haram for launching insurgent and terrorist attacks against the North East since 2009.
In the southern states of Nigeria, the Criminal Code applicable set the age of criminal responsibility at 17. In the northern states, the Penal Code of 1960 specifies that seven is the minimum age of criminal responsibility and it categorizes juvenile offenders as those under the age of 17.
According to the Sharia law, children are eligible for had (for which the prescribed punishment is mandatory) and qisas (punishment by retaliation) punishment from the age of puberty.
Under Sharia law applicable in Kano where the offence was committed, age of criminal responsibility is set at puberty. Given the fact that Wasila was married off because she had attained puberty at age 14, she is likely to be made criminally responsible for her crime.
Sharia courts are given jurisdiction in criminal proceedings thereby supplanting the extant Penal Code and even Children and Persons Law applicable in lieu of the Child Rights Law. Under the Sharia regime, sanctions and punishments applicable to adults apply to children because no distinction is made for children.
Thus, whatever punishment is reserved by Sharia law for murder will be applied to Wasila and this is likely to be capital punishment unless there is a robust defence with a strategy to appeal the inevitable outcome of sentence to death at the Sharia court.
Wasila was 14years at the time she committed the crime. Is it not possible to try her under a separate child justice system?
Under the Child Rights Convention domesticated at the federal level and by 24 states in Nigeria, Wasila would be handled under a separate child justice system that takes account of her age and the circumstances of her forced marriage to a man twice her age.
Unfortunately, Kano, being one of the 12 states of the federation yet to pass the Child Rights Law and operating the Sharia legal system, Wasila has no protection under the child rights regime except immediate plans are made not only to use her case as advocacy for the ills of child marriage but also to arrange a robust defence with a strategy to appeal the inevitable outcome of the sentence to death at the Sharia court.
What message do you have for children as the world celebrates Children’s Day?
As the world celebrates Children’s Day 2014, it is important to remember thousands of children in Wasila’s tragic position. Many of them have been forced into marriage ahead of their ability and capacity to be wives or mothers.