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UNDERAGE MARRIAGE: Playing games with child’s rights

By Funmi Ajumobi
T
he endorsement of child marriage by the Senate through constitutional amendment is generating ripples. Sunday Vanguard learnt that Senate considered Section 29, which deals with renunciation of citizenship for amendment.

Section 29(1) provides that 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.’ Section 29(4) (a) and (b) provides, ‘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.’ The Senate voted to remove the latter, that is, Section 29(4)(b).

Then, Senator Yerima, a former governor of Zamfara State – who had married a 13 year-old Egyptian girl -raised an objection on the grounds that the removal of the provision was ‘un-Islamic,’ citing Second Schedule, Part 1, Item 61 of the constitution entitled, ‘The formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto.’

Senator Ahmed Yerima
Senator Ahmed Yerima

The senator mobilized his colleagues and got the amendment put to vote again and those who earlier supported the removal could not muster the two-thirds majority votes required to seal the removal. By not being able to get two-thirds majority votes, Section 29(4)(b) remains in the constitution.

Meanwhile, Nigerians, through social and conventional media, have continued to express their opinions on the issue. Some of them are reproduced hereunder:

The world is watching us – Dr. Princess Olufemi-Kayode

Ashoka FELLOW & Executive DirectorMedia Concern Initiative – for Women & Children

It is sad and disgraceful that at this time in the 21st century, we are voting for marriageable age for the girl-child in our Senate during a constitutional review.. It is shameful and does not portray our governance system as a serious one. We continually make a mockery of democracy – the government of the people, by the people and for the people. It is obvious that this is all about a one-man riot squad: Yerima.

He married a 13-year-old and nothing happened. If I recollect, the Senate called it a personal issue. We need to know that the world is watching us.

A life of diminished opportunities, by Maryam Uwais

Uwais...Speaking out against child marriage
Uwais…Speaking out against child marriage

It is certainly not mandatory in Islam that girls must be married off as minors; so to keep insisting that this practice must remain sacrosanct, given the background of the needs in northern Nigeria, is incongruous, even under Shari’a. Where a practice is determined to be merely permissible and not mandatory, it is considered practicable and entirely feasible within Islamic jurisprudence to discourage or prohibit it, where it is found to be so harmful to individuals and to the community.

Countries such as Yemen, Egypt, Morocco, Tunisia, Algeria, Somalia and Bangladesh, with majority or high Muslim populations, have set a minimum age for marriage as 18, in the acknowledgment that there are serious social, physical and mental health risks associated with child marriages. This progressive step became necessary, given that these indisputable facts placed a heavy burden on the accountable and God-fearing leadership in majority Muslim countries, to protect the vulnerable in their midst.

Shariah objectives

It is, therefore, not unreasonable to expect that educated elite and public figures, such as Senator Yerima, being conscious of their grave responsibilities to prohibit harm and to enjoin good in our own context, should actually discourage this devaluing and belittling practice of early marriage, in the public good, for the protection of the vulnerable and the realization of social benefits. To enable our girls attain their fullest possible potential is definitely a target that Senator Yerima should also be working passionately towards, along with the rest of Nigerians who yearn for a better future.

Indeed, the overriding objectives of the Sharia include the promotion of human dignity, justice, compassion, the removal of hardship, the prevention of harm, the realization of the lawful benefits of the people, and the education of the individual by inculcating in him a sense of self discipline and restraint, which aims are by no means exclusive.

All else may be adapted to achieve these ends, which measures may encompass matters of concern not only to law but also to economic development, administration and politics. For those that reflect, the hardship that these little girls experience, where married off and divorced soon after, so wantonly, is certainly unacceptable within the faith.

It is important to commend the thinking behind the decision to delete the constitutional clause that seeks to lumber even an ‘intellectually immature’ girl, where married, with the grave responsibility of the power to renounce her citizenship, thereby elevating the subject of citizenship to the level whereby both men and women have similar responsibilities, without discrimination.

It is hoped that ultimately, members of the Senate would reflect deeply on the implications of their recent action and revisit their decision to retain the contentious clause, if only to ensure that every Nigerian citizen of full age, without distinction, is subjected to similar standards and responsibilities under the provisions of our Constitution”.

Best interests of the child

As a Muslim woman (without pretensions of scholarship) forever striving for knowledge, research into these matters has revealed that in matters of social interaction (mu’amalat), there is a lot of latitude in what is permitted, unless it is expressly prohibited by a clear text.

The rules are certainly not so definitive. What is also evident is that the ‘best interests of the child’ is a paramount consideration within Islam, along with the principle of public good (maslaha or istislah). The operational rules are not defined (probably deliberately, in my humble view) and the determination of such issues is best left to the experience, custom and context of the particular society. The Qur’an provides that the predominant consideration in matters relating to children would depend on the point at which they can be said to not be ‘sufaha’ (mentally immature) anymore, in the context of that particular community.

Facts are that nearly half of all the children under five years of age are malnourished in the North-east zone, with women and children in the nutrition ‘high-burden’ states of Adamawa, Bauchi, Borno, Gombe, Jigawa, Kano, Katsina, Kebbi, Sokoto, Yobe andZamfara suffering the most from malnutrition, wasting and stunting. This singular factor remains the underlying cause for 53% of under-five deaths.

If the child is stunted in its first 1,000 days, that condition is irreversible, so the future of these children, and the larger population, is permanently shortchanged. The health and nutritional needs of mothers, new-borns and children are closely linked, with young mothers accounting for a majority of severely malnourished children.

Multiple health risks

Multiple health risks arising from child marriage include the sexual exploitation (including forced sexual relations) that she is subjected to, as well as limited access to reproductive health services, despite the real and present danger of contracting diseases such as HIV/AIDS, STIs (sexually transmitted diseases) and the debilitating ailment of VVF/RVF (VVF-a tear in the flesh between the vagina and the urinary passage, usually due to prolonged labour, resulting in uncontrolled urine or feces in the case of recto-vaginal fistulae-RVF), including the abandonment that comes with such ailments. Nigeria, with 2% of the world’s population, has 10% of VVF patients. Three-quarters of those with VVF/RVF are young girls who are not yet physically mature but have suffered trauma in their first pregnancy.

Statistics show that stillbirths and deaths are 50% more likely in babies born to mothers younger than 18, as against babies born to mothers above that age. Each day, 144 women die in childbirth in Nigeria, with the North East alone having 5 times the global rate of maternal mortality.

The lack of information and access to support ultimately results in psycho-social and emotional consequences, domestic violence, abandoned (street) children, with the attendant deprivations of their rights and freedoms, whose wellbeing is severely compromised.

The prevalence of the abuse of the right to the exercise of divorce by Muslim men has only compounded the situation, leading to so many negative social deviations such as substance abuse (that has become so rampant), commercial sex work and the complete loss of values in the entire family set up.

Community loses  out

Many of these adolescents are married off to men much older than they, and because of the associated power differentials, this singular factor impedes communication between them, with the girl having no negotiation skills in crucial decision-making that may affect her life.

Having lost out on these critical life opportunities, these married adolescents can never aspire to living as meaningful and productive members of society. Not being able to participate actively in the community translates to their losing out completely on benefitting from economic activity and earning a decentincome.

Many of these girls remain excluded from community life, having been separated from peers and family members by marriage. Depression sets in. A life of diminished opportunities. The community loses out completely; the economy cannot improve where half its population is stuck in this rut.

Child marriage, from available statistics, ultimately hampers the efforts of these young adolescents from acquiring an education, as sooner than later, they find it difficult to combine the onerous responsibilities of being a wife and mother, with schooling.

They drop out, if they have not been removed for the purpose of marriage, in the first place. Consequently, 70.8% of young women aged 20-29 in the North West zone are unable to read or write. Due to the fact that these girls are deprived so early of an education (including the access to information and knowledge) they remain bereft of the purchasing power necessary for an adequate diet, healthcare,skills, or even recourse to support in emergencies, all of which would enable them rise above the circumstances of abject poverty.

It is paradoxical that Muslims like Senator Yerima would rather their wives and daughters be treated by female medical personnel if they fall ill, and yet they are, by continuously advocating for child marriage, deliberately closing the avenues for girls to aspire to such professions.

Deprivations of formal and non-formal education translate, at such an early age, into restrictions on mobility, domestic burdens, the denial of sundry freedoms in respect of survival, development and participation, as well as the loss of adolescent years. Indeed, children of young, uneducated mothers are also less likely to attain high levels of education, perpetuating cycles of low literacy and limited livelihood opportunities.

Child marriage, therefore, ultimately deprives societies of the intellectual and financial/livelihood contributions of girls, and of their offspring. It is no wonder then that the North continues to portray such poor ratings in almost all aspects of human endeavour.

The imperatives of child’s rights –  Taiwo Akinlami,

Consultant to UNICEF on Child Protection and the Implementation of the Child’s Rights Act, 2003

The Senate does not have final power when it comes to the amendment of the constitution. Section 9(2) of the Constitution provides, ‘An Act of the National Assembly for the alteration of this Constitution… shall not be passed

Taiwo Akinlami
Taiwo Akinlami

in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the states.’

My submissions:

*That the issue before the Senate was not child’s rights or child marriageable age of the Nigerian child.

*That Section 29(4)(b) has always been part and parcel of the 1999 Constitution of the Federal Republic and the Senate has not passed a new law legalizing child marriage as it is being widely circulated.

*That in furtherance to the immediate paragraph, the 1999 Constitution of the Federal Republic of Nigeria has never legalized child marriage.

*That in furtherance to the foregoing, that the Child’s Rights Act, which was passed into law in July 2003, which by virtue of Section 12 of the Constitution of the Federal Republic of Nigeria is the domestication of the United Nations Convention on the Rights of the Child, 1989 is the foundational law today, recognized by the constitution, relating to Child’s Rights in Nigeria and the Act has criminalized Child Marriage in Nigeria.

*That in all matters relating to children in Nigeria, the provisions of the Child’s Rights Act, 2003 supersedes the provisions of all other enactments on children and other matters by virtue of Section 274 of the Child’s Rights Act, 2003.

*That by the express provision of Section 277 of the Child’s Rights Act, 2003, which defines a child as anyone below 18 years of age and Sections 21 and 22 of same Act, child marriage and betrothal is not only outlawed but criminalized in Nigeria.

Domestication

*That for the Child’s Rights Act to be enforced in the 36 states of the Federal Republic of Nigeria, the Houses of Assembly of each state must pass (domesticate) it into law, considering the fact that most of the matters relating to children are under concurrent legislative list and that as at today 24 states of the Federal Republic of Nigeria have passed the Act into state Laws.

The 12 states that are yet to pass the Act into Law are: Enugu, Kaduna, Kano, Sokoto, Kebbi, Borno, Yobe, Gombe, Adamawa, Bauchi, Katsina, and Zamfara.

*That as it is today, the states, which have not passed the Child’s Rights Act into state laws, are core northern states and one of the major issues is their disposition towards child marriage and related matters.

*That by virtue of Second Schedule, Part 1, Item 61 of the constitution, known as ‘Exclusive Legislative List,’ which states  the areas the National Assembly can make laws on to include, ‘the formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto,’ the best option of stakeholders in the life of the child is to put pressure on the states governments of the northern states, which have not passed the Child’s Rights Act into the state laws to do so.

As it is, it appears the National Assembly does not have power to legislate on the issues relating to the formation, annulment and dissolution of marriages contracted under Islamic Law and Customary Law.

Alternative

That in the alternative, stakeholders should agitate for the amendment of Second Schedule, Part 1, Item 61 of the constitution, known as ‘Exclusive Legislative List,’ to read ‘the formation, annulment and dissolution of marriages.’

*That, though the Child’s Rights Act, 2003 is not a perfect piece of legislation, it has gone a long way in providing a formidable legal and social frameworks for the protection of the rights of the Nigerian child in the spirit of the United Nations Convention on the Rights of the Child, 1989 and African Charter on the Rights and Welfare of the Child.

There are spacious rooms for improvement but the Child’s Rights Act, 2003 is supreme in all matters relating to children except in relation to express provision of the Constitution of the Federal Republic of Nigeria, which is the supreme law of the land, from which every other law receives their validity.

*That Section 29(4)(b), which provides, ‘any woman who is married shall be deemed to be of full age’ is in relation to renunciation of citizenship and taking a keener look at the minds of the drafter of the 1999 Constitution of the Federal Republic of Nigeria, I believe Section 29(4)(b), creates a leeway for a child either born in Nigeria or become a Nigerian by marriage to renounce her citizenship of Nigeria before she is eighteen years old and either seek asylum in another country or return to her country of birth.

Please note that in reaching my queer conclusion on Section 29(4)(b), I have decided to take my liberty in considering the Mischief Rule of interpretation of statute, which tries to consider the mischief the drafter of a particular law may be trying to correct.

Means to an end

Enlightenment is not an end in itself. It is a means to an end. The goal of enlightenment is Child Protection Social Policing™. Child Protection Social Policing™ happens where every primary and secondary custodian within the four (4) institutions (Family, Community, State and International Community) responsible for the protection of the child are equipped with Knowledge (what to do), Skills (how to do it) and Attitude (wisdom and inner strength) to professionally and effectively protect, preserve and defend the rights of the child, even at the cost of personal discomfort.

The United Nations recently supported the position that is Superior to Enforcement™ as it submits, ‘to child abuse cases is four times expensive as child protection and protecting children against violence and abuse…’

I hereby rest my case here, calling all of us, who are genuinely interested in matters relating to the well-being of our children to redirect our struggle in the direction of meaningful social engagement, aimed at achieving the best interest of the child through a well articulated agenda”.

Senate action unacceptable – Child Protection Network (CPN), a coalition of NGOs, CBOs, FBOs, and government agencies in 31 states and FCT working in the area of Child Protection in Nigeria.

CPN decries in very strong terms the removal of Section 29(4) (a) of the 1999 Constitution of the Federal Republic of Nigeria and the retention of Section 29(4) (b) of the same on Wednesday 17th July, 2103 by the members of the National Assembly.

This action is a complete violation of Article 21(2) of the African Charter on the Rights and Welfare of the Child which prohibits Child marriage as well as Article 6(b) of the African Charter on Human and People’s Rights which provides that the maximum age of marriage for women is 18 years.

UNDERAGE MARRIAGE: SENATORS WHO VOTED YES
UNDERAGE MARRIAGE: SENATORS WHO VOTED YES

This act of the Senate also contravenes Section 21, 22 and 23 of the Child Rights Act which states that no person under the age of 18 is capable of contracting a valid marriage and accordingly a marriage so contracted is null and void and of no effect what so ever. It is also an aberration to all the International Human Rights legislations for children which Nigeria is a signatory to, had ratified and domesticated.

This action is generally unacceptable and not in the best interest of the Nigerian girl-child. We urged all right thinking Nigerians to strongly condemn this action and urged members of the house to revert this despicable and shameful action.

Early Marriage Will Retard Nigeria’s Development  – Dr Uche Bialonwu

Having reviewed all the write-ups by various newspapers making a case against EARLY MARRIAGE, realizing that the Senate of the Federal Republic of Nigeria deliberately chose to ignore all existing laws on the issue of early marriage and went ahead to endorse it against both national and international laws, acts and conventions, i.e.,

The Convention on the Rights of the Child, CRC, The Nigerian Child Rights Act, 2003, The African Charter on the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination Against Women sealed up (to which Nigeria is signatory)etc., I wish to propose as follows:

That the Senate cannot impose Islamic laws, practices and tenets on millions of Nigerians who are not Muslims. That the Senate cannot over-rule the wishes of 24 states out of 36 which have domesticated and passed the Child Rights Act, 2003!

That Nigeria is a secular state and cannot pander to religious sentiments. That the Nigerian Constitution is a Federal, national document and cannot pander to any sectional interests: the amendment, repel of the Age of Marriage legislation should be expunged from the constitution, with immediate effect!  Each state should thereafter legislate on that issue at their own level since the country as a whole cannot agree on a common framework.

The amended constitution should be subjected to a nation-wide referendum, an Egypt! AlhajiYerima and his supporters should learn a lesson from the fate of the Muslim Brotherhood manipulated constitution that has bitten the dust in Egypt.

The people of Nigeria, those who do not want their girls to indulge in early marriage should rise up and refuse this latestincursion into the abuse of children’s rights. Early marriage is a denial of children’s rights, abuse of their privileges and an exposure of children especially girls to physical, psychological, health, danger and backwardness which does not augur well for our national development. Nigeria should resist this negative backward looking legislation with all their power.

 

 


Disclaimer

Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.