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#raisetheage: The Nigerian Constitution Inadequacy In Promoting Child Rights
#raisetheage: The Nigerian Constitution Inadequacy In Promoting Child Rights
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By - Adedoyin Shittu

Posted - 15-07-2019

As at 2017, 44% of girls in Nigeria were married before 18 and 17% were married before they turned 15, though the prevalence of child marriage in Nigeria varies from region to region, with figures as high as 76% in the North Western region and as low as 10% in the South Eastern region. According to UNICEF, Nigeria has the third highest absolute number of child brides in the world with over 3,538,000 and it keeps rising. This makes the country the 11th highest prevalence rate of child marriage globally out of the top 20 countries ranked for child marriage. Niger Republic takes the lead with 76% of girls married before the age of 18.

Also Read: Child Exploitation: Almajiri; Echoes of A Failed System

Despite trying to stamp out child marriage in the country by passing the Child Acts Rights in 2003, the federal government effort has yielded little because each state in Nigeria has to enact the Act under its own state laws before it is enforceable. 11 Northern states (Bauchi, Yobe, Kano, Sokoto, Adamawa, Borno, Zamfara, Gombe, Katsina, Kebbi, and Jigawa) and Enugu state have refused to pass it into law  because many of such states believe some sections of the child rights law need to be amended as it negates their belief and cultural practice. Child marriage is also prevalent in these states. While states that have adopted this acts still have a long way to go in terms of implementation because of some cultural beliefs.

Child marriage in Nigeria has ancient cultural, religious and economic ties and the betrothal of female children even as young as 9 years to adult males is still a regular phenomenon in the country, however it is so common among the Hausa-Fulani ethnic group because it is believed that once a girl attain puberty, she should be married off to avoid her becoming promiscuous. This means that in the north, once a girl starts menstruating, growing breast or pubic hairs then she is old enough to be married off and despicably so, to an elderly man who is ready to prey on her innocence. The high percentage of child marriage in Northern Nigeria can be attributed mostly to the fact that the practice of Islam in the region endorses child marriage.
According to Islamists, while the Child Right Acts aims at protecting the children, it infringes on the rights of freedom of thought, conscience and religion as provided for in section 38(1) of the 1999 Constitution:
Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Nigeria Constitution Encourages Child Marriage
Under the Marriage Act 1990, the minimum legal age for marriage is 21 years for girls and boys, although they are able to marry before this age with written consent from a parent or guardian.
Under the Child Rights Act 2003, the minimum legal age of marriage is 18 years and the Acts also states that where a person marries a child under the age of 18, he is liable to a term of 7 years imprisonment and a fine of 500,000 Naira.

Despite attempt by the federal government to enforce this law, it has proven controversial and has been greatly opposed most especially in the northern part of the country. States in this part of the country have refused to include the Child’s Rights Act 2003 in their internal legislation because it conflicts with their traditional and religious beliefs, instead they introduced the Sharia law despite it being criminal to do so.

Though Nigeria is constitutionally a secular state and section 10 of the 1999 Constitution prohibits states in Nigeria from adopting state religion, this did not stop the implementation of Sharia law in 1999 and it was put into jurisdiction in 12 states. Adoption of Sharia could be interpreted as the adoption of a state religion.

Sharia law was first introduced by the then governor of Zamfara state, Senator Ahmed Sanni Yerima, in 1999, he also passionately lobbied for sharia in other states in the region. According to him, a child’s readiness cannot be determined by age and as a strict follower of the Islamic tenets, setting an age barrier to marriage will be infringing on his right.

In 2000, the governor went ahead to marry his 14 years old Egyptian bride at the age of 49, after allegedly paying a dowry of $100,000. Although the marriage created an uproar, Yerima justified the marriage on religious grounds and denied breaking the law but said “he would not respect any law that contradicted his religious beliefs”.

“Prophet Muhammad (SAW) married Aisha at the age of nine. Therefore, any Muslim who marries a girl of nine years and above is following the teaching and practices of prophet Muhammad (SAW). If there is anybody who will tell me that what you did contradicts Islam, I will say I will submit, and I will do whatever they ask me to do”– Senator Yerima.

This marriage was done in Abuja under the Sharia Court of Appeal, this was after divorcing his 17 years old wife which he married at 15 years, after encouraging her to drop out of school. At the time of the divorce, she was tending a little baby.
Was Yerima prosecuted? No, instead he went on to govern the states for two terms (8 years) and is now a lawmaker representing the Zamfara West since 2007 till date, presently the is the Deputy Minority Leader in the Senate.

What Makes it Difficult for the Federal Government of Nigeria to Act on Child Marriage
Nigeria legal system involves three parties, the civil, customary and Islamic law and they operate simultaneously despite been a secular state and Christians making roughly half of the population. The federal government though considers 18 the legal age for marriage according to the Child Rights Acts but the federal government has no control over customary and Islamic marriages. This means that, according to Section 61(1) of the 1999 Constitution, a person that marries under Islamic law even if it is a child cannot be prosecuted because the federal government would be interfering with an Islamic marriage and that would be in violation of Section 61(1) of the 1999 constitution.
The formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto. (Second Schedule – Legislative Powers, Part I – Exclusive Legislative List)

On 16 July 2013, Nigerian senators tried to review and make an amendment to the constitution and set a minimum age for marriage by removing a clause in section 29 (4b) that justify child marriage.

(1)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.
(4) 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. (Sec. 29)

In an initial vote, majority of senators voted in favour of deleting this section but senator Yerima challenged the removal on the grounds that the deletion of the section 29(4)(b) discriminated against Muslim women, who are considered “of age” once they are married even if it is at the age of 9 as Mohammed the Prophet did.
He lobbied the Northern elites and some southern ones too and when a revote was done, it was not able to garner up to two – thirds of the votes needed in the Constitution to make a change. Though this does not mean that senators legalised child marriage but that clause in the constitution gave room for paedophiles to act under the umbrella of Islamic right.
Like senator Yerima did in the National assembly, paedophiles hide under culture or religion to justify child marriage and sexual relationships with minors. This same senator like others following his footstep whip up the religious card to defend their paedophilia actions and has on numerous occasions handicapped the federal government from acting on the rights of a child, and this has encouraged marriage to children, especially in the north.

Way Forward
Time and time again, people have used the religion card to prevent the senate from setting the marriageable age as 18 years for women in the 1999 Constitution without considering the social, economic and health implication of child marriage. Marriage is a commitment that should not be trivialised and a child as young as 9 or even 17 should not be getting married because this put an automatic end to any educational aspiration of such a child and forces the child to suddenly embrace many adult responsibilities that are beyond that child’s capabilities physically as well as emotionally. Other than the obvious health implications of such a marriage, there are psychological traumas that a child may endure which may affect and alter the child’s personality.

There are many Muslim majority countries like Algeria, Egypt, Morroco and Tunisia that have embraced an age limit for marriage because this countries promotion of Islam is geared towards the promotion of human rights, however this is contrary to what is on ground in Nigeria, a country that is not even an Islamic country but in a bid to satisfy their libido some old men have actively prevented the senate from protecting the right of a child.
Despite signing the Child Rights Acts in 2003, the Africa Charter on Human and People Rights (2005) and Convention on the Right of a Child by the federal government which have all stipulated the age of marriage of a child as 18, yet child marriage is thriving because many practitioners of the dastardly acts believe the proponents of the child rights want to rob them of their fundamental rights which does not even regard the fundamental right of their neighbour.

Nigeria has committed to eliminating child’s early and forced marriage by 2030 but the country still has a long way to go because of religious disparity. Every religious person, be it the leaders or the followers, should know that no religion supersede the other. If we are to play by religion, then Christians should not be found in court and all grievances should be directed to the church. Each religion has their tenets and until the constitution which is built on a secular ground to accommodate all religion rules out religion and focus on human development, Nigeria cannot get serious with protecting the rights of a child. The first responsibility of the government is to protect every individual human right and religion should be secondary.

Also Read: Africa and the Malady of Teenage Pregnancy

Every child in Nigeria should be protected by the law of the country and has the right to live free and receive education and every child has the right to make his/her decision on whom he/she wants to marry and not to be forced into the 21st century slavery in the name of marriage. Presently the constitution of Nigeria cannot do this because the constitution of Nigeria prohibits any law against Islamic law and paedophiles hide under this law, so tragically, it can be argued that Child Rights Acts is only for Christians and does not hold water for Muslims.

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