Given the emotional reactions to the retention of Section 29(4) b of the Constitution by the Senate and its implications on the legality of child marriage, it is perhaps necessary for stakeholders to approach the Supreme Court to seek judicial resolution. PAUL DADA writes
Since the Senate could not muster majority votes to delete Section 29(4)(b) of the Constitution, there has been much debate on the propriety or otherwise of child marriage.
The controversial clause reads: “Any woman who is married shall be deemed to be of full age.” Although this part of the constitution deals with citizenship matters, the clause, in the opinion of many, grants the liberty for an adult male to marry an under-aged girl who is less than 18 years.
The Senate had initially voted to delete the clause until Senator Ahmed Yerima said its his removal would be against Islam. Consequently, 35 senators opted for the clause to remain in the constitution. Hence, the senate could not get the required two-thirds majority to remove that constitutional provision.
Mixed reactions greeted this development, especially in the media and cyberspace. While some Nigerians have taken a moderate view of the development, others have insisted that Section 29(4)(b) must be expunged. There are those calling for Yerima’s head as they see him as the arrowhead of those in support of the clause. They also want Yerima prosecuted for allegedly marrying a 13-year-old Egyptian girl.
In a reaction by its national coordinator, Dr Abiola Akiyode-Afolabi, the Gender and Constitution Reform Network (GECORN), a coalition of women’s rights organisations across Nigeria said:
“The constitution of Nigeria is the supreme law of the country. While we hail the constitution review process led by the Senate and the House of Representatives, we reject the argument of Senator Yerima that the proposal for the deletion of section 29 (4)(b) which states that “any woman who is married shall be deemed of full age” is at variance with Islamic law.
“Section 29 of the 1999 Constitution particularly prescribed the procedures for Nigerians who wish to renounce their citizenship. 29 (4)(a) defines the character of a Nigerian who is capable of denouncing citizenship and clearly states that such person must be of full age – 18 years and above, which is in line with the Child Rights Act 2003. Our argument is that S 29 4(b) contradicts S 29 4(a) and can cause misrepresentation in law and practice.”
“We ask, is the Senate saying that a 13-year-old girl has the mental capacity to renounce her citizenship? Thus, we argue that Senator Yerima, basing his argument solely on child marriage, is treacherous and a deliberate attempt to misrepresent the intention of the 1999 constitution. Such misrepresentation is in our own view, what the Senate originally wanted to avoid by the (Senate Committee on the Constitution Reform’s report) proposal and its initial votes for the deletion of S 29 (4)(b).”
In her own reaction, a women’s rights advocate, Funmi Falana, who leads the non-governmental organisation, Women Empowerment and Legal Aid, (WELA), called on the Senate to review its resolution.
WELA also called on the 12 states that had not adopted the Child’s Right Act, 2003 to do so without further delay. The Act makes it illegal for anyone to marry or cause to be married a person who is not yet 18.
Falana said: “We call on the attorney-general of the federation and minister of justice, Mr Mohammed Adoke (SAN), to ensure that Senator Yerima is prosecuted for violating section 23 of the Child’s Right Act by marrying a 13-year- old Egyptian girl in 2010.
“It is pertinent to note that section 29(4)(a) of the Constitution defines “full age” to mean the age of 18 years and above. However, in recognition of child marriage, section 29(4)(b) of the Constitution states that “any woman who is married shall be deemed to be of full age.
“In rejecting the recommendation the Senators did not advert their minds to section 42 of the Constitution which has abolished discrimination on the basis of political opinion, places of origin, ethnicity, sex or religion. The Senate failed to appreciate that the Child’s Right Act, 2003 has prescribed 18 years as the minimum age of marriage in Nigeria in line with the provisions of the United Nations Convention on the Right of the Child which was ratified by Nigeria in 2001,” she added.
Apart from Enugu State, all the other states that have not adopted the Child’s Right Act are in the north. They are Sokoto, Kebbi, Zamfara, Katsina, Kano, Kaduna, Bauchi, Gombe, Yobe, Borno and Adamawa. The Child’s Right law has been passed in Ebonyi, Kogi and Niger states but the laws are awaiting governors’ assent.
“Thus, by not adopting the Child’s Right Act, the aforementioned states have continued to promote child marriage, child labour, illiteracy and ignorance in the country,” Falana stated.
Nigeria, like most other countries, has ratified the United Nations Convention on the Right of the Child since 2001 and therefore had an obligation to give effect to the convention.
Mrs. Falana added: “From the investigation conducted by the Women Empowerment and Legal Aid (WELA), we found that protagonists of child marriage in Nigeria do not allow their children to engage in child marriage as they are in special schools at home and abroad when they are under 18 years of age.
“Apart from disrupting the education of the girl child, early marriage constitutes a danger to her health. It has been medically ascertained that incidence of Vesico Vagina Fistula (VVF) is prevalent among girl children forced into early marriage.”
Still kicking against child marriage a commentator on a news website, Elder Obawusi Obafemi, said: “At the end of the day, this underage marriage law is aimed at the talakawa (the poor) which is a way of perpetuating generational backwardness of this class of Nigerians in the north. Denying the female child the faculties to develop into a full independent adult also retards this individual’s social worth, income, and of course skills. In addition, this child-bride goes on to bear children, a child raising another child in brutal poverty with the savage gender barriers in an oppressively subterranean environment would only result in a distorted by-product: generational poverty.
“Diminishing the skills, independence and educational reach of ordinary northerners through the resistance of progressive national policies is not a game of chance. The northern elites had it elaborately worked out to the last detail.”
However, despite the controversy generated by the Senate’s decision, lawyers say there are still some legal issues to be resolved. they listed these thus:
* The constitution recognises the under aged married girl as an adult (Section 29(4)(b)
*The Child Rights Act, sections 21-24 renders marriage contracted with a person below 18 null and void and imposes a five-year imprisonment or a penalty of N500, 000 on anyone who makes this happen. However, 12 states are yet to domesticate this.
*The Sharia legal system adopted by some states in the north does not punish an adult who marries an under aged girl.
*The issue is that the constitution takes precedence over any other legislation which is at variance with any of its provisions. The constitution itself states:
*If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”- PART I – 1 (3); and
*If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall, to the extent of the inconsistency, be void- Part II – 4 (5) .