By Awa Kalu, SAN
What needs to be restated immediately is that several statutes and legal instruments contain age restrictions with regard to certain matters or transactions. A few examples will suffice. The Electoral Act which is extant provides for eligibility considerations with regard to registration of a person as voter. Aside from being a citizen of Nigeria, the prospective voter must be ordinarily resident, work in, and originate from the local government area council or ward covered by the registration centre. Apart from other considerations stated in the Act, a person who has not attained the age of 18 years cannot be registered as a voter.
The Labour Act equally prescribes an age restriction with regard to Apprenticeship. For instance, any young person of the age of sixteen years or above, not being under any contract of apprenticeship may apprentice himself for any term not exceeding five years to any trade or employment in which art or skill is required. The Act further provides that the parent or, in the case of an orphan, the guardian of a young person above the age of twelve years and under the age of sixteen years may, with the consent of that person testify by his execution of a written contract of apprenticeship, apprentice that person to an employer to train him or have him trained systematically for a trade or employment in which art or skills is required, or as a domestic servant, for any term not exceeding five years.
In addition, where a young person above the age of twelve years and under the age of sixteen years is without known parents or a guardian, an authorized labour officer may authorize the apprenticeship of the person to execute the written contract of the apprenticeship and act generally as guardian of that young person.
In terms of marriage, the Marriage Act provides that if either party to an intended marriage, not being a widower or widow, is under twenty-one years of age, the written consent of the father or mother, or if both be dead or of unsound mind or absent from Nigeria, of the guardian of such party, must be produced annexed to such affidavit … before a licence can be granted or a certificate issued. What is clear from the Marriage Act is that the draftsman did not intend marriage under the Act to be a free-for-all.
Accordingly, it is safe to suggest that since marriage should not be an undertaking that should be entered lightly, it is presumed that the age of twenty-one is sufficient for either party to understand the dimensions of that institution and should either party be below the prescribed age, the consent of either parent or in a recognized circumstance, of the guardian, would suffice to trigger such marriage. What would seem logical is that the law, as well as public policy, frown against persons of immature age venturing into what may pass for adult ‘enterprises’. Of immaturity, the criminal code takes significant cognizance of what is called “immature age”.
Accordingly, a person under the age of seven years is not criminally responsible for any act or omission. Beyond that age, the code makes a slight adjustment with regard a person under the age of twelve. A person under the age of twelve is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he (or she) had capacity to know that he ought not to do the act or make the omission.
For a male person under the age of twelve years, he is presumed under the criminal code to be incapable of having carnal knowledge. It may be argued that the provision of the criminal code referred to above arises from the well known requirement at common law that to be guilty of an offence, the presumed offender must act with a guilty mind – mens rea. Lord Reid in Sweet v. Parsley (1970) A.C. 132 emphasized this statement of the law when he held that ‘to make a man liable to imprisonment for an offence which he does not know that he is committing and is unable to prevent is repugnant to the ordinary man’s conception of justice and brings the law to contempt’.
There are many other sections of the criminal code that convincingly shield girls from sexual predators. A clear example is to be found in section 218 which provides that any person who has unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony and is liable to imprisonment for life, with or without caning. An attempt to have unlawful carnal knowledge of a girl under the age of thirteen years is also a felony and the offender is liable to imprisonment for a term of fourteen years.
To underscore the hostility of the law to child predators, any Householder who permits the defilement of a girl under the age of thirteen years on his premises is guilty of an offence. Section 219 of the criminal code is emphatic that any person who, being the owner or occupier of any premises, or having or acting, or assisting in the management or control of any premises, induces or knowingly permits any girl of such age as in this section of this code mentioned to resort to or be in or upon such premises for the purpose of being unlawfully carnally known by any man, whether a particular man or not, is guilty of an office. If the girl is above thirteen and under sixteen years of age, he is guilty of a misdemeanor and is liable to imprisonment for two years, with or without caning. If the girl is under the age of thirteen years, he is guilty of felony, and is liable to imprisonment for life, with or without caning.
There are other sections of the code which prohibit the indecent treatment of girls under sixteen; causing or encouraging the seduction or prostitution of a girl under sixteen or allowing persons under sixteen to be in brothels. Section 222A of the code is broad in its categorization of persons within its purview and is to the effect that whoever, having the custody, charge or care of a girl under the age of sixteen years, causes or encourages the seduction, unlawful carnal knowledge or prostitution of, or the commission of an indecent assault upon, such a girl, shall be liable to imprisonment for two years.
For the purposes of that section, a person shall be deemed to have caused or encouraged the seduction, unlawful carnal knowledge or prostitution of, or the commission of an indecent assault, a girl who has been seduced, unlawfully carnally known, or indecently assaulted, or who has become a prostitute, if he has knowingly allowed her to consort with, or to enter or continue in the employment of, any prostitute or person of known immoral character.
The protection afforded persons of young age is so prevalent that even the Evidence Act, 2011 protects them from being indiscriminately invited or tendered as witnesses in active litigation. The Act thus provides that in any proceedings in which a child has not attained the age of fourteen years is tendered as a witness, such a child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of his evidence and understand the duty of speaking the truth.
Only recently, the Child Rights Act was enacted and though it exists as an enactment of the National Assembly, it has been replicated in the laws of several states. The heartwarming provisions of the Act in so far as the girl child is concerned is to be found in sections 21 and 22 which make unequivocal provisions with regard to child marriage and child betrothal.
While section 21 of the Act renders a marriage contracted with a girl under the age of 18 years null and void and of no effect whatsoever section 22 prohibits child betrothal. Having regard to the foregoing, it may be difficult to understand the brouhaha that has been occasioned by the rather restricted proceedings in the National Assembly concerning the renunciation of citizenship under section 29 of the Constitution. Has any person over-reacted?