Islam and Today · Legal


     Little Faridah Hashimi had her whole life in front of her. She was beautiful, intelligent and the apple of her parents’ eyes. Whereas most people looked at her and saw a ten year old with a promising future ahead of her, one man saw in her a trophy to add to his matrimonial home. Alhaji Omar came to Faridah’s parents with a proposal of marriage to which they gladly consented. How could this monstrosity be committed? It is an enormous injustice against this little girl and a flagrant violation of her fundamental human rights!

     This is the sentiment that occupies most minds where the issue of child marriage is concerned. It is not borne out of a particular understanding of the subject matter, or an objective appraisal of the topic. No, these objections are mostly driven by linear reasoning, as well as ‘common sense’. And what is wrong with that, you may ask? Nothing really, except that it goes against every principle of human existence we know. We have been able to defy the law of gravity by developing machines that can keep us suspended in the air; against all odds, we triumphed over the historic disasters caused by epidemics like measles and smallpox by developing vaccines that could prevent them; and in this 21st century, every five-year old knows that the answer to ‘why?’ is ‘why not?’ These examples portray the human reasoning as a dual carriage way. Why should that be any different now? In reaching a conclusive point on the issue of child marriage, we must remove the blindfold and open our eyes to all the possibilities.
      A Pandora’s Box of controversy was unleashed on our dear country during the recent constitutional amendment undertaken by the federal legislature since July this year. One of the recommendations of the Senate Ad-hoc Committee on Constitution Review led by the Deputy President of the Senate, Senator Ike Ekweremadu  was the deletion of Section 29 (4) (b) of the 1999 Constitution of the Federal Republic of Nigeria. The purport of section 29 is to lay down the proper procedure for the renunciation of Nigerian citizenship for anyone who wishes to do so. Subsection (4) specifies the capacity in terms of age for the person who wishes to renounce, i.e. he must have attained 18 years or ‘full age’. The same subsection then creates an exception by providing that for the purpose of denunciation of citizenship, any married woman is deemed to be of full age. The Senate Committee advised that this exception be expunged from the constitution because it was gender discriminatory. If there was no differentiation in age between both genders in matters of voting, driving, education, etc, then why should there be one where citizenship renunciation is concerned?
    The whole brouhaha surrounding this issue erupted when Senator Ahmed Sani Yerima of Zamfara State objected to the intended amendment –after the first resolution- on the grounds of its incompatibility with Shari’ah law, because the shari’ah does not stipulate any age as marriageable age. Also, he strengthened his argument with the fact that matters concerning Islamic and customary marriage are not within the legislative competence of the federal legislature. On the first objection, it seems that the distinguished Senator completely relegated the opening phrase of Section 29 (4) which reads “for the purposes of subsection (1) of this section” This means that the entire import of Section 29 is based on renunciation of citizenship and not marriage. Consequently, his second argument need not be taken into consideration.  However, these statements misled an entire legislative house, because they eventually conducted a defensive election the second time around. Some voted for the expulsion because they felt it was legalizing underage marriage, while others voted against its removal because they believed it would marginalize their faith. Everybody voted based on sentiments, not the issue at hand, which was capacity to renounce one’s citizenship. This episode parts the curtain and offers us a view of the level of intellect possessed by this minority whom we have elected to represent our interests as a country.
    But even more confusing is the media kerfuffle which followed this misadventure. Newspapers, magazines, journals, talk shows, seminars, and a plethora of inciting comments covered this headliner. And how can we forget the famous ‘Child Not Bride’ campaign? All these efforts and awareness are very commendable, assuming there was a real cause. From the foregoing though, the whole propaganda was built on a misunderstanding of the subject matter. So many voices are calling for the deletion of the ‘pedophilic clause’. Do we forget that this particular clause has been in our constitution since 1979?  Removal of the clause only caters for married women less than eighteen years of age in matters of citizenship renunciation. It does not in any way tackle or prevent the marriage of females under eighteen years. I’m not citing this as a reason for it to stay, –in fact, based on the legal arguments of gender discrimination, I think it should go- it just amuses me how unperceptive the human consciousness could be. This is a constitution which we claim governs us as a people. Instead of devising a positive means of making it more efficient, we’re making a mountain out of a molehill that has existed thirty-three years running?
   Now that we have been able to dissociate the constitutional amendment fiasco from marriage in any form, the issue of child marriage shall now be examined critically. This will be discussed from the aspects of defining who a child is, the intricacies of the marriage institution, the influx of western standards and the impact on customary law and finally, the Islamic view point.
    There is no definition of a child in the 1999 Constitution of the Federal Republic of Nigeria. The Black’s Law Dictionary 8th Edition defines a child as “a person under the age of majority”. Wikipedia says a child is biologically defined as “a human between the stages of birth and puberty”. These are all ambiguous attempts at defining who a child is and one gets even more confused when Nigerian law is considered. While the Labour Act defines a child as a person under the age of twelve years and a young person as under fourteen, the Children and Young Person’s Act says that a child is someone under the age of fourteen and a young person is between fourteen and seventeen years respectively. In terms of criminal responsibility however the Criminal Code Act recognizes the age of responsibility as seven years. While an adult for the purpose of voting is eighteen years, a person cannot validly contract until the age of twenty-one. It seems that the definition of a child is largely centered on age. The United Nations Convention on the Rights of the Child is an international instrument which has been enacted into Nigerian law through the Child Rights Act 2003. Though the Act provides eighteen years as the general age of majority in all matters, it is not generally applicable throughout Nigeria because matters concerning children are within the legislative competence of the states. So, whereas a child is a person under the age of sixteen years in Akwa Ibom State, in other states, a child is under thirteen years. Thus, the perception of a child would largely depend on who is making the definition and the various contexts and cultural backgrounds.
    Under Nigerian marriage law, one of the necessary ingredients for a valid marriage is capacity of the parties. A marriage can be invalidated on grounds of capacity if one of the parties is not of ‘marriageable age’, though the Act does not go further to define what marriageable age entails. Note that Nigerian law recognizes three types of marriages in Nigeria –statutory, customary and Islamic marriages. It wasn’t until recently that the Childs Right Act stipulated eighteen years as the age of marriage or betrothal. However, parental consent is still required for the marriage of a person under twenty-one years. But it should be recognized that there are two other forms of marriage, which do not stipulate a particular age as ‘marriageable age’.  Section 1 of the same CRA provides that in every action carried out which concerns a child, the “best interests of the child” shall be the primary consideration. Of course the question which comes to mind is whether marriage at such an ear ly age portrays what is best for the child.
    The common notion of eighteen as the age of majority was brought on by the various international legislations which Nigeria has ratified. On the premise of marriage, Sections 21 and 22 of the CRA prohibit and punish the betrothal or marriage of a person less than eighteen years respectively. This is a largely foreign concept, as with most social issues promulgated by international instruments to which Nigeria is a party. The rapidity with which such legislations are enacted into our laws, without considering their impact on already existing domestic law is alarming. Also disturbing are the double standards pervading such laws, especially in the countries where they originate. Even though eighteen has been passed as the legal age for marriage, this has not reduced the rampant teenage pregnancies which embattle such countries. And instead of sourcing conclusive solutions to this obvious problem, the ‘proactive measure’ taken by the government in those countries is to make contraceptives more accessible –to ‘children’, who by their standards have not reached the age of majority. Where this affair is with an older lover, the sexually active ‘child’ can also take solace in the knowledge that it is the older partner who will be punished upon discovery.  It is as if they are saying, “Go ahead and have casual, underage sex. Just don’t formalize it by getting married”. Now, I’m not playing the attack the opponent game to make my stance seem more plausible. I’m simply canvassing an argument for the delisting of marriage from a particular age group. If we evaluate the heterogeneity of Nigeria in terms of culture and faith, alongside provisions of the constitution which guarantee every individual the right to freedom of expression and religion, we would acknowledge that ‘ageifying’ marriage when it contradicts another’s beliefs is not really constitutional. Perhaps it was in recognition of this factor that the Convention on the Rights of the Child provided “a child is a person below the age of eighteen years except in the law applicable to the child, the age of majority is attained earlier”. This definition has been adopted by the United Nations Children’s Fund (UNICEF) and domesticated into Nigerian law.
           Now, a final resort must be made to Islamic law because most of the heat has been embroiled in the peculiarity of the shari’ah. Some of the requirements for a valid marriage are mutual attraction; consent of the parents and the parties and of course…..marriageable age.  Under Islamic law, one of the contexts in which marriageable age is mentioned is giving orphans their wealth. The conditions given are reaching of marriageable age, and the proving of sound judgment. In Arabic, the term for ‘marriageable age’ can be used interchangeably with sexual maturity, which is determined by the attainment of puberty. This implies that one could reach marriageable age and not possess sound judgment, which is prevalent in our society of today. Senator Ahmed Yerima, in his interview of August 25th, 2013, with Kadaira Mohammed on Channels Television mentioned the essence of physical maturity in determining when a girl could get married. He however left out the mental capability of the parties to understand and appreciate the responsibilities that come with marriage. One cannot go without the other, or it becomes logically inconsistent with the guidance of the Qur’an. Physical maturity is closely linked to the subject of Vesico Vaginal Fistula (VVF) –a condition caused by a tear in the flesh between the vagina and the urinary passage, due to prolonged labor. This results in the uncontrolled excretion of urine or faeces from the body. Prolonged labor could be as a result of an underdeveloped reproductive system, reminiscent of physical immaturity.  Though, this is also largely credited to the poor health care system of the North.
     Islam is a beautiful religion and it leaves such issues which are not clearly defined –such as the age of marriage- to the experience, custom and context of the particular society, provided the prescribed guidelines are followed. In all situations however, the best interests of the child are paramount.  Considering that it is not a matter of compulsion in the religion to marry out children at young ages, perhaps all our energies should be put into securing a proper future for them. But hey, if you can produce a nine-year old child in present day Nigeria –and I sincerely doubt this- who is physically mature enough to withstand childbirth; who is psychologically competent enough to execute a marriage contract and understands its implications; whose marriage will not deter or impede his/her education in any way; and who can say “I do”, then why the fuss?



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