INFANTILIZING TEENAGERS IN NIGERIA AS UNFIT FOR MARRIAGE: A DOUBLE STANDARD By Musa Usman Abubakar, Ph.D
The author of this piece seeks to lend his voice in this debate over what some media houses dubbed ‘endorsement of underage marriage’ by the Nigerian senators. A couple of days ago when the senators were deliberating on renunciation of Nigerian citizenship in the proposed amendment to the 1999 Constitution, some people succeeded in hook winking Nigerians, through sponsored write-ups, to believe that the distinguished senators have endorsed child marriage by stealthy smuggling it in our constitution. As a result, the ever gullible Nigerian public believed them to the extent that some ‘seat- warmers’ among the senators thought they committed an abomination and were reportedly shading tears over what they consider as erroneous endorsement of underage marriage by them. It is declared here that the public has been misinformed of what actually transpired in the Senate. Most of the write-ups were embroiled with falsehood, insincerity and lack of objectivity in an attempt to set one segment of the community against the other. Those sponsoring such write ups are either mischief makers who would want to sensationalize the issue or are simply harbouring an ingrained pathological animus against the distinguished Senator for daring to make his religious leaning public. Perhaps, if it was any other person the matter could have sailed through the chamber unnoticed.
As reported in the media, there was never a discussion on child marriage before the Senate in recent time. The pre-eminence of our constitution makes it less likely for such issue to feature in it. Thus, legislators enact separate laws like the Marriage Act to deal with such issues What actually came before the Senate was a proposed amendment on renunciation of Nigerian citizenship under section 29 (4) of the 1999 CFRN (as amended). The section reads:
‘29.(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.
(2) The President shall cause the declaration made under subsection (1) of this section to be registered and upon such registration, the person who made the declaration shall cease to be a citizen of Nigeria.
(3) The President may withhold the registration of any declaration made under subsection (1) of this section if-
(a) the declaration is made during any war in which Nigeria is physically involved; or
(b) in his opinion, it is otherwise contrary to public policy.
(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.’
The question is whether the Constitution should retain section 29 (4) (b) which deems any married woman to be of full age. What this suggests is that irrespective of her age, a married woman may renounce her Nigerian citizenship as provided under this section. It is noteworthy that this provision has been in our constitution since 1979 and was never an issue but now when it was sought to be expunged. This prompted Senator Ahmad Sani Yerima to raise a point of order by referring his colleagues to the exclusive legislative list which only allows the National Assembly to legislate on statutory marriages and not marriages contracted under customary or Islamic law. Majority favoured the retention of the provision as it has been. Unfortunately, many misinformed human rights NGOs and individuals like Fani Kayode, Luke Onyekakeyah, Sulaimon Olarenwaju, etc condemned the Senate as promoting paedophilic tendencies by ‘making mothers out of children’ in utter disregard to the Nigeria’s international obligation.
For the purpose of clarity, let it be known that age of majority may not necessarily be the marriageable age. That is why under our laws there is always difference between voting age, age of criminal responsibility and age of sexual consent. If 18 years is the international threshold why not make all these uniform such that all under 18s are incapable of giving sexual consent, are not criminally responsible, have no voting right and are incapable of entering into marriage contract.
It must be stressed here that 18 years is not an internationally endorsed minimum age for marriage. The international community employ cultural relativist approach in negotiating any culturally sensitive international convention. Hence, none of the United Nations conventions stipulates minimum age for marriage. For instance, the CONVENTION ON CONSENT TO MARRIAGE, MINIMUM AGE FOR MARRIAGE AND REGISTRATION OF MARRIAGES, 1962 was the first attempt to secure the agreement of international community on minimum age for marriage but it did specify a particular age. Article 2 of this Convention requires state parties to specify in their laws minimum age that no marriage shall be valid below that age. Since 9th December 1964 when this Convention came into force only 55 countries ratified as at 25th January 2013 and Nigeria is not a state-party to it. On 1st November 1965 the UN General Assembly, via resolution 2018 (xx) recommended 15 years as minimum age for marriage, and which may be lowered in certain cases. Principle II of the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages reads:
‘Member States shall take legislative action to specify a minimum age for marriage, which in any case shall not be less than fifteen years of age; no marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.’
The move to stipulate 18 years as minimum age for marriage was also thwarted during the negotiation on the UN Convention on the Rights of the Child. When the Second Polish Draft on Child’s Rights Convention, which put 18 years as the age of majority, was debated, it was contended that given the divergent legal and socio-economic traditions of member states of the United Nations, and for ‘variable local adaptation’ allowance must inevitably be made to accommodate the differences. According to A M. Pappas: ‘The outlawing of ‘‘child marriages’’ is far from being a reality: quite a few States have no provision regarding an absolute minimum age for marriage, while several others expressly allow marriage ( with parental consent, etc,) at very young ages, particularly where girls are concerned. Compare Australia, Congo, Egypt, Greece, Kenya with China, Cuba, Israel, Norway, U. K and U.S.A. (see Pappas, A. M in Pappas, A. M (ed) Law and Status of the Child Vol.1 1983 edition, pp.xxvii-lx at p. Xl)
The Draft was thus rephrased to accommodate other cultures whose age of majority is lower than as contained in the Polish Draft. That is why there is neither minimum age for marriage in the United Nations Convention on the Rights of the Child nor any provision outlawing child marriage and child betrothal. Article 1 of the UNCRC reads:
‘‘For the purposes of the present Convention, a child means every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier.’’
Going through a document prepared by Hannah Cartwright for the Global Justice Initiative titled ‘Legal Age of Consent for Marriage and Sex for the 50 United States’ one realises that the Legal Minimum Age of Consent for Marriage is 18 in all the 50 states in the U. S. However the minimum age for marriage varies from one state to another, with most of them adopting 16 years, thus requiring parental or judicial consent to solemnise it. In fact, in some states it is even lower than 16. For instance, California (no age limits), Daleware (no age limits), Massachusetts (Male 14: Female: 12), Mississippi (no age limits) and New Hampshire (Male: 14 Female:13).
In the United Kingdom, child marriage is not unlawful as long as the necessary parental consent is acquired. Under section 2 of the Marriage Act, Cap 76 of England and Wales the minimum age for marriage is 16 years. (NB in Scotland a person aged 16 years does not need parental consent to marry). Section 2 of the English Marriage Act reads: ‘A marriage solemnized between persons either of whom is under the age of sixteen shall be void.’ Such marriage is considered child marriage thus requiring parent consent. Section 3 (1) of the Marriage Act provides:
‘Where the marriage of a child, not being a widower or widow, is intended to be solemnised on the authority of a certificate issued by a superintendant registrar under part III of this Act, the consent of the person or persons specified in subsection (1A) of this section shall be required.
One important lesson we should learn from this provision is that a child widow or widower is an independent entity. Therefore he or she needs no parental consent in solemnising a subsequent marriage. In the same token, for the purposes of renunciation of citizenship in Nigeria, a married woman is an independent entity capable of making such a decision herself.
Ironically, it is only under Article 21 (2) of the African Charter on the Right and Welfare of the Child that child marriage is considered a taboo and even classified as ‘Harmful Cultural and Social Practices’ which member-states must prohibit by pegging the minimum age for marriage at 18 years. One begins to wonder what the drafters of the Charter want to achieve by this imposition. Who are they imitating, the United States or the United Kingdom that colonised most of the African states? Why did African states like Kenya, Somalia, Sudan, South Africa, Zimbabwe, etc choose to ignore the Africa Charter and allow marriage under 18 years? Are the drafters of the Charter not overzealous in their approach to sensitive issues? Why is the Charter being observed more in breach than in compliance? Is this not the reason why the Nigerian Child’s Right Act, 2003 is being resisted in Muslim states when in fact the United Nations Convention on the Rights of the Child remains the most widely ratified convention since the formation of the United Nations?
Given the state of affairs in the United Kingdom, the United States of America and indeed most countries in the world, those calling our distinguished senators who voted for retaining section 29 (4) (b) as paedophiles may as well declare American and British legislators and indeed all the permanent representatives to the United Nations General Assembly as such. The simple fact is that in Nigeria we find pleasure in infantilizing our physically and sexually active teenagers by considering them unfit for marital life yet fit for pre-marital sex. By pegging the voting age at 18 years, we ‘childify’ them, belittle their intellect, delimit their capacity and disenfranchise them; but ironically use them in political thuggery and election rigging. Interestingly, despite all these incapacitations, we ‘adultify’ them as capable of committing crimes at the early age of seven.
In any case, any student of constitutional law knows retaining section 29 (4) (b) or expunging it will not invalidate marriages solemnised under personal laws. All that the removal will achieve is to depower women in deciding their citizenship status. After all, renunciation of Nigerian citizenship is rarely in vogue.
In the foregoing, it is clear that what was before the Senate has nothing to do with marriageable age. That the issue of marriage was grafted to possibly overheat the polity and make issue out of nothing. That 18 years has not been universalised as minimum age for marriage for Nigeria to be considered in breach of its international obligation. Indeed, child marriage is legally recognised in even the most developed countries in the world. Therefore those fanning the embers of discord should appreciate the relativity of cultural/religious orientation and that the essence of federalism as a political arrangement is to accommodate differences. So live and let live others.
Dr Musa Usman Abubakar Gusau,
Zamfara State, Nigeria
July, 26, 2013