The last time the Nigerian Constitution was in the news like this, the spotlight was on Section 145. And, that was in 2010.
It took the Senate President, David Mark’s ingenious “Doctrine of Necessity” to resolve the matter. Three and half years later, it’s Section 29 that’s in the news.
This is what happened last week. The Senators, having previously voted, as part of the ongoing constitutional amendment, to expunge Section 29 Part 4b (S29(4)b), which introduces an element of ambiguity into the age at which a female is considered old enough to be able to renounce Nigerian citizenship, succumbed to the opposing arguments of Senator Ahmed Yerima (ANPP/APC; Zamfara West), and repeated the vote.
At this second vote, those in support of the deletion failed to muster the required two-thirds majority; meaning that the clause will now stay in the amended constitution.
This is what that controversial section says:
S29(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.
S29(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.”
S29(4)b is therefore to be interpreted to mean that a female who less than 18, and who wishes to renounce her Nigerian citizenship, shall be able to do so, as long as she is married. Senator Yerima’s stance is of course connected to the fact that he believes that on the basis of his religion, Islam, he is allowed to marry a girl of any age. In 2010, he married, in Abuja, a 13-year-old Egyptian girl.
The controversy throws up a number of interesting issues:
One. S29(4)b is primarily to do with the conditions under which a person can renounce their citizenship of Nigeria. It was not intended by the Constitution to prescribe anything relating to marriage or marriage age. Looking at it again, S29(4) starts out by restricting the scope of its interpretation to S29(1) – renunciation of Nigerian citizenship. In other words, it does not expect to be applied outside of the consideration of the conditions under which a person can renounce their citizenship of Nigeria.
Two. That section of the constitution was written at a time when it was permissible in Nigeria for a person younger than 18 to be married. Now that there is a Child Rights Act in place which clearly states that, “No person under the age of 18 years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void and of no effect whatsoever”, S29(4)b has been rendered irrelevant, and should indeed have been deleted. The failure of the Senate to delete it is no doubt worthy of condemnation, and suggests the worrying possibility that a good number of our lawmakers are wallowing in ignorance of the laws of the land.
Three. Interpreting what happened in the Senate last week to mean that underage marriage is now legal or authorised in Nigeria does not seem to me an accurate, useful, or insightful response.
The Nigerian Constitution, apart from investing the Sharia Court of Appeal with the “(competence) to decide any question of Islamic personal law regarding a marriage concluded in accordance with that law”, does not by itself prescribe any minimum age of consent for marriage.
What it does is recognise, via S29(4)b, the possibility that the minimum age for marriage could be less than 18 (In England, Wales and Scotland for example, the minimum age is 16 – England and Wales have parental consent requirements for persons younger than 18; Scotland doesn’t, which means that 16 and 17-year-old English and Welsh youths can circumvent their home laws by travelling to Scotland to marry without parental consent).
The refusal of the Constitution to stipulate a minimum age of marriage is in my opinion an acknowledgement of the fact that there should be other laws whose duty is to deal with such matters as marriage. I do not think it is the duty of the Constitution to descend to the level of enacting rules for matters of human relationships that can and should be taken care of by specialised laws.
In the case of a minimum age for marriage, such a specialised law exists. In 2003, the National Assembly passed the Child Rights Act which is unambiguous in its prescriptions, and is intended to clear the confusion arising from the profusion of laws relating to the minimum age at which a person can be married in Nigeria.
According to Sections 21 to 24 of the Act:
21. No person under the age of 18 years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void and of no effect whatsoever.
22.—(1) No parent, guardian or any other person shall betroth a child to any person. (2) A betrothal in contravention of Subsection (1) of this section is null and void.
23. A person—
(a) who marries a child; or
(b) to whom a child is betrothed; or
(c) who promotes the marriage of a child; or
(d) who betroths a child commits an offence and is liable on conviction to a fine of N500,000 (five hundred thousand naira) or imprisonment for a term of five years or to both such fine and imprisonment.
Now, this is where the problem starts. The Child Rights Act does not automatically apply across Nigeria. It has to be “domesticated” on a state-by-state level. State Houses of Assembly have to adopt the legislation in their states. Alas, in the decade since the law was passed at the Federal level, up to 12 states have failed or refused to adopt it. (You will realise that the list of Senators who voted against the deletion of S29(4)b significantly coincides with the states that have yet to adopt the Child Rights Act. That tells you where the problem lies). Meanwhile, a state like Lagos is already working hard to further strengthen the provisions of the Act – the state House of Assembly is currently debating stiffer penalties for sexual abuse of children.
So, what is the way forward?
This is what I think. We should be putting pressure on the Houses of Assembly and governors of the states that have refused to adopt the Child Rights Act; and on the judiciary and law enforcement agents to ensure the implementation of the law in every state in which it’s already in force.
We should also put pressure on the Nigerian government to sign up to the United Nations’ Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, which compels signatories to “take legislative action to specify a minimum age for marriage” and empowers such a legislation to supersede all “customs, ancient laws and practices” inconsistent with it.
Now that the Senate – through the decision of Senate President David Mark to revisit an already settled matter – has done its worst, all concerned citizens, irrespective of religion, class or ethnic group need to immediately shift the battleground to the state Houses of Assembly in the 12 or 13 states that have yet to adopt the legislation.
And this is where First Lady Patience Jonathan ought to step in. The Office of the First Spouse, if there is any of such, exists, in my opinion, for a time as this, to bring its considerable influence to bear on matters that affect the lives and welfare of society’s most vulnerable.
And this controversy ought to provoke some soul-searching amidst us, regarding our attitudes towards child labour. It is the height of hypocrisy to condemn the Senate for what just happened, whilst we ourselves are keeping and maltreating 11-year-olds in our homes in the name of “house-help”. Standing up for children’s rights means standing up for all the rights of a child – not just the right to not be married off, but also the right to be given an education, and to be treated with dignity and respect.
Finally, in a secular state like Nigeria, politicians need to stop using religion as a political tool (Yerima seems adept at this; recall he kick-started the Sharia controversy in 1999).
In ending this, let me also just point out one interesting fact: Available statistics indicate that Zamfara State, the state where Yerima was governor for eight years, and is now a Senator, has the second-lowest school attendance rate in Nigeria. But the man isn’t losing any sleep over that disgraceful scenario.
The only thing capable of making him stay awake at night, it seems, is any attempt to get him to see the impropriety of insisting on marrying teenage girls. Who needs a Senator like that?
By Tolu Ogunlesi
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