By Patrick Dele Cole
WHAT is the age when men and women can legally have sex in Nigeria? This is a round about way of asking what is the age of consent? A simple question; but an extra-ordinarily complicated one. The new Child rights Legislations stipulate that having carnal knowledge (sex) of a child below the age of 18 is a crime in twenty – four (24) States of the federation and the Federal Capital Territory. So would it mean that the age of consent is 18 in those States and the Federal Capital? Not so. For this purpose, Akwa Ibom and Kwara States specify 16years, whilst Jigawa State specifies 15 years.
Even so there are other complications. The traditional marriage systems stipulate generally the age of 12 – 14 years for girls. In some parts of Nigeria, the age is as low as 10 but there are other constraints which prevent consummation of the marriage even if the girl, her parents and the spouse’s parents have agreed. Among the Ibos, for example, child marriages from such ages below 10 years of age are permitted. But the girl remains under the protection of her father in-law until she reaches the normal marriageable age of the community.
Sometimes, these constraints are not really constraints, especially if the marriage is done under Islamic Law/Sharia. In such a case, marriage could be conducted by a mallam between a man and a 10 or 11, 12 year old girl, as we have seen recently. I am told that some of these “marriages” are really not marriages because the girl may have poor parents who would gladly give their 11 year old daughter in marriage because they cannot feed the girl anymore.
We have a former governor, and now a Senator, who is reported to have married a 13 year old girl from Nigeria and a 15 year old girl from Egypt. Is he a pedophile? Apparently, not, because, according to his religion, he married and divorced them legally.
Who is a pedophile?
It is stated that Mohammed the Prophet married a 9 year old girl and gave out his own ten year old daughter in marriage. It is also well known that the Prophet also instructed that young girls should be educated, and that marriage should never be at the expense of education. In both cases, the nine year old and ten year old, though married were made to have full education, and the marriage was not consummated until his wife was eighteen years, and his daughter was nineteen years! The question arises: Have the Nigerian Muslims, who cite these examples, exhibited any such discipline as the Prophet exhibited? The answer, of course, is no having regard to the cases of V-V+ we witness. Let us consider this case:
Mayen is 15, and living with her uncle in Kano. Her uncle was a political officiando. Alhaji Akali was a powerful figure who was able to dispense favours. He visit Mayen’s uncle and saw Mayen in his house. He was enamoured by her and sought her hand in marriage. The uncle was only too happy to give Mayen away; and Alhaji married Mayen. Soon thereafter, there was a riot in Kano, and Mayen escaped and went home to her father in Akwa Ibom. The father is now not inclined to allow Mayen to leave the house. He locks her up and refuses all pleading from Alhaji that Mayen is his wife, and he has come to take her back to Kano. What is the solution? Should the Attorney-General of Cross River State not prosecute Alhaji for having carnal knowledge of Mayen who was 15 at the time of the marriage?
A similar situation happened between a Lagos girl, Abike, aged 15, living in Kano, who married under the sharia, but returned to Lagos where her father has refused to accept that she is married. The simple answer to this is to say that, on the face of it, there was no parental consent. Therefore, there was no marriage. But in both cases, a local uncle had stood in for the parents to give consent without which the officiating mallam would not have performed the ceremony.
Even so, there is a clear case of conflict of laws? The Child’s Rights Laws of Lagos State and Cross River State stipulate 18 as age of consent. The Law is clear that when conflicts such as these arise, the domicile of the father will be the domicile of Abike and that of Mayen.
But here, there is no conflict because the age 18 years for legality of sexual intercourse, marriage and betrothal has been made to override age by these Child Rights Laws.
The issue here has to do with the legality of the marriage in Kano. They would have been valid if the consent of the parents had actually been obtained. But there is no evidence in cited case that the parent’s consents were obtained. Accordingly, the purported marriages would be null and void. The problem now is, would the purported husband of Mayen and Abike be continually liable for defiling the girls, respectively? This raises a very complicated Legal issue which is not for discussion here.
However, there are still 12 States of the Federation (11 in the North and 1 in the South) which have still not passed the Child Rights Legislation. In those States, the tenets of Customary Law and Islamic Law still hold sway.
There are Statutory Laws on rape (Criminal Code and Panel Codes) in those States. Even if we leave all that, how about the absence of a law of statutory rape like in the UK where the Criminal Law specified 16 for the age of consent, where the girl is unmarried; whilst the Penal Code specifies the age of 14 years. On its own put, the Sharia Penal Code specifies the age of 13 years.
What the law in Nigeria says now is absurb. Any carnal knowledge before 18 is a crime except where a marriage (traditional or religions) has taken place in which case, no crime is deemed to have been committed.
Nigeria is not the first place to have conflict of laws of this type. In the US, some States allow 16 year for marriage others 17, or 18. Driving licenses are issued to 16 year olds in Texas, but no where else. During the miscegenation era, the laws in some States allowed interracial marriages; whilst other States forbade it. So, you may be legally be married in Boston, but in Memplus, the black man is sent to jail for attempting to marry a white woman. What will a policeman in Alabama say to a 16 year old Texan with a valid driving license?
Would it not be better to have a statutory rape age – all marriages must then follow that rule?
This is what the Child Rights Legislations have sought to do. However, true to the essence of Federalism, the ages specified by the respective States have not been uniform: whilst the majority specify 18 years for both marriage and legal eligibility to consent to sexual intercourse; two States have specified 16 years, and one State, 15 years. This shows that a lot more still needs to been done.