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Follow @okeyfredeniamazon.com/Okey-EniCONFLICT OF LAWS AND CHILD MARRIAGE PART 1
There are three types of laws governing marriage in Nigeria, and each of them varies in it’s stipulation on the marriageable age of a female child. The first type of law that obtains in marriage is the statutory law, also known in some quarters as the general law. This law includes, statutory enactments on marriage which are, the marriage act and the matrimonial causes act. It also includes case law as it is in other common law countries. Item 60 of the second schedule of the 1979 constitution, gives the federal government the exclusive legislative right over marriage act and matrimonial causes act, which regulates the dissolution of statutory marriage is also a federal enactment.
However, some incidents of this form of marriage such as legitimacy and legitimation, effect of marriage on proprietary rights, succession both testate and intestate are governed by state enactments. The High Court of Nigeria has original jurisdiction in matrimonial causes arising out of marriages contracted under the marriage act. The marriage act and the matrimonial causes act made no provision for the minimum age for marriage.
The second type of marriage obtainable in Nigeria is the customary marriage, which is governed by native law and customs, also known as customary law. This law is largely unwritten and varies from one tribe to another, although it is identical in its nature. Marriageable age of a female child is fixed at puberty in customary law which is around twelve years old. However, betrothal can occur earlier than that and in some cases, marriage can also occur before the attainment of puberty, but consummation of such marriage can only happen at the attainment of puberty of the girl child. Customary law is within the legislative competence of the state government. It is administered by the Area Courts/Customary Courts, and the Customary Courts of Appeal, with final jurisdiction resting on the Supreme Court of Nigeria.
The third type of marriage obtainable in Nigeria is the Islamic marriage, which is governed by the Islamic Law. The marriageable age of the female child is the age of puberty, which is twelve years. Marriage can occur for a female child at an earlier age but consummation of such marriage is not expected to take place until the girl-child reaches puberty. This of course is not observed in practice as many female children married before attainment of puberty do have sexual intercourse with their grown up husbands. Islamic Law is within the legislative competence of the state government. It is administered by the Area Courts/Shariah Courts, and the Shariah Court of Appeal, with final jurisdiction resting with the Supreme Court of Nigeria.
The British colonial legacy bequeathed to Nigeria, and indeed all other former British colonies and protectorates is the unfortunate dual legal system and jurisprudence, especially in the law of personal status. We have just enumerated the three types of laws operating in Nigeria which regulates marriages, however customary and Islamic laws are usually lumped together as one, and they are both classified as customary law. This is because Islamic law is more or less the customary law of Arabs with religious undertone. According to David Pearle,
“Islamic law is customary law because it is the custom of the Arabs
In Mohammad’s time reduced into writing by the holy prophet.”
Writing under the same vein, Justice A.P. Anyebe has this to say,
“Islamic law has itself been heavily soaked in Nigerian local
Customary law. Consequently, in Sokoto, Oyo, Kano, Lagos, Bauchi or Borno, Islamic law wears different gowns but under the imposing umbrella of Muslim brotherhood.”
The import of the above is that the custom of the Arabs has mingled with the different indigenous customs of Nigeria in what we know today as Islamic Law. Nevertheless, Islamic law and customary law agree on the marriageable age of the female child. Also section 2 of the High Court law, laws of Northern Nigeria 1963 provided that Islamic law should be treated as customary law.
This unfortunate dual legal system has drawn some comments from various writers, in the words of Lloyd Fallers,
“Among the long list of intractable problems faced by new independent states of Africa, by no means the least severe is that of creating national legal systems out of the welter of indigenous and introduced bodies of law with which they came to independence. Bodies of customary law have survived and in some cases have even been strengthened during the period of colonial administration.”
In every state of the Nigerian federation, there exists side by side, two distinct systems of law. One system comprises of rules derived from the cultures and traditions of the local communities as in the southern states, or from the religious tenets of the people as in most northern states. The other systems consists of common law, rules, doctrines of equity and statutes received from the one time British rulers of the country, and statutes made by local legislators at various times.
This dual legal system has resulted in the ineffectiveness of the statutory law as there is no point of reconciliation, between the statutory law and the customary law in all aspects of marriage and inheritance. In the present topic of the marriageable age of a female child, both laws sing discordant tunes.
The marriage act provides the age of consent at 21 years, but was silent on the marriageable age of the parties to a marriage. The matrimonial causes act, makes a marriage void where the parties are not of marriageable age, but was silent on what constitutes the marriageable age of parties to the marriage.
It can therefore be assumed that the statutory law made the age of 21 as the marriageable age of both male and female child in the absence of a direct pronouncement. Besides, the Infant Relief law confers contractual capacity at the age of 21.
There are other statutes protecting the girl-child such as Children and Young Persons Law, Criminal Code, Penal Code, Infant Relief Law, and Labour Law. Also the constitution itself is equally a statute protecting the girl-child. S.39 of the 1979 constitution guarantees freedom from discrimination and equality under the law for a child. S.17(5)(F) of the same 1979 constitution, protects a child from any exploitation whatsoever and against moral and material neglect. All these are excellent provisions by the statutes to safeguard the rights of a girl-child, but are they strictly adhered to? The answer is an obvious no. Certainly, if they are enforced, there will be no more incidences of early and forced marriages in Nigeria.
The main reason responsible for the non-enforcement of these statutes is the other side of the law regulating marriages in Nigeria. That is the customary law and the Islamic law. The other half of the dual legal system and jurisprudence. A female child can be betrothed right from the time she is in her mother’s womb. There are incidences of betrothal even when the female child is yet to be conceived. This happens when the would be husband approach the parents of the girl-child before she is conceived, with a proposal, that if the mother happens to bear a female child when she gets pregnant, the child is betrothed to him. Then marriage itself can take place right from the age of 8.
Under customary and Islamic law, the father of the girl-child has the right to give her out in marriage to whomever he pleases. This of course is manifestly against the provision of the statutes. Although the marriage act makes parental consent compulsory for the marriage of under 21 years old girls, there is no provision whatsoever for matrimonial constrint in the statutes. It is quite obvious that the dual legal system breeds conflicts and contradiction instead of complimenting each other. How then can the statutes be enforced? A father who has condemned his daughter to an early marriage or one who has banished his daughter away to one of his friends has committed no offence under the law. The criminal code provided that having carnal knowledge of a girl below the age of 13, and in some parts of the country below the age of 16, is a criminal offence known as statutory rape. However, a man that had carnal knowledge of his 8 years old wife has committed no offence under the law.
This conflict of laws has rendered our marriage laws useless. What we now have here in Nigeria is a jungle law that is based on the philosophy of ‘survival of the fittest.’ There are a lot of inhuman treatments being meted out to under-aged females, who have turned overnight into wives, and we just fold our arms watching, claiming that it is our custom, and that some of our religious beliefs allow it. For how long are going to live in a state of confusion and apparent lack of love for one another? The laws both religious and state are meant to protect and safeguard the rights of the not so strong in our societies. Humans have lived in an era of survival of the fittest and we were worst off for it, we can go down the memory lane of history, why are we in Africa still relishing lawlessness. The natives of Alaska, Canada and Greenland, the Invict, have a common saying that we do not inherit land from our ancestors, we borrow it from our children. Why do we leave our children unprotected in Africa?
The second problem posed by this dualism of our laws is the ignorance it pervades in our society. Most people are unaware of the provisions of our statutes protecting the girl-child from arbitrary marriage and sexual exploitation. What the generality of the people are aware of is the custom and religious dogma that allows them to marry under-aged females. As Martin Okany puts it,
“The second problem posed by this disturbing and unfortunate dualism of laws and courts is that neither system appears to have a clear idea as to what the other is or does. The man and woman in the village are blissfully ignorant of the general law of the land.”
The conflict of laws and the contradictory nature of these laws have made it impossible for people to understand it. Take an example of the penal code that operates in Northern Nigeria. S.282(1)(b) of the penal code makes it an offence for a man to have sexual intercourse with a girl under the age of 14. The same penal code in the subsequent sub-section, which is section 282(2) excludes the marital rape of a woman who has attained the age of puberty. We all know that the average age of puberty for females is 12 which is below the age of 14. Also S.39 of the penal code provided that children under the age of 14 are incapable of providing consent, including consent to sexual acts. Then section 285 of the same penal code provides that a child under the age of 16 is presumed incapable of consent to any act of gross indecency with an adult in a position of authority, such as a teacher or a guardian.
Then in Southern Nigeria, the Criminal Code which operates there comes with its own bags of inconsistencies and contradictions. S. 218, 221 and 222, prohibits statutory rape. Sexual intercourse with a girl under the age of 13 is punishable by life imprisonment, and sexual assault of a girl under the age of 13 is punishable by imprisonment of up to three years. Assaults committed against girls between the ages of 13 to 16, including statutory rape are punishable by imprisonment of up to two years. Also attempted statutory rape of a girl under the age of 13 is punishable by imprisonment of up to 14 years with or without canning. But a prosecution for statutory rape under the criminal code must be brought before the court within two months after the offence was committed. However, S. 6 of the criminal code excludes the marital rape of a woman who is married under our laws. These laws include customary and Islamic laws which recognize female child marriage.
However, it should be noted here that some states in Nigeria have enacted laws on the marriageable age of parties to a marriage. The Age of Marriage Law Cap 6 Sections 2-4 & 6 (Eastern Region 1956) which operates in the eastern states of Nigeria prohibits marriage contracts between parties under the age of 16, and such marriage in defiance of the law is declared as legally unrecognizable.
Also some sections of the 1985 constitution which was aborted due to the annulment of the 1993 presidential election and the 3rd republic, it was suppose to usher in, provided some succour to the girl-child. S.17(2)(b) provided for the sanctity of human person. S.31(1)(a) prohibits torture and inhuman and degrading treatment.
Mention should also be made here of the national policy on population and family planning. In 1988, due to the perceived adverse effects of the rapid growth in population, the federal government adopted the national policy on population for development, unity, progress and self-reliance. The main purpose of the policy is to decelerate the rate of population growth and improve standard of living.
The national policy on population seeks to achieve these targets.
1. Reducing the proportion of women who marry before the age of 18 by 50% by 1995, and by 80% by 2000.
2. Reducing the number of children a woman bears over her lifetime from the prevailing average of above six children to an average of four children.
3. Reducing the proportion of women bearing more than four children by 50% by 1995, and by 80% by 2000.
4. Reducing the present rate of population growth from about 3.3% per year to 2.5% by 1995, and to 2.0% by 2000.
5. Extending the family planning coverage to 50% of women of child bearing age by 1995, and to 80% by 2000.
6. Reducing the infant mortality rate to 50 per 1000 live births by 1995, and to 30 per 1000 live births by 2000
7. Reducing the crude death rate to 100 per 1000 by 1995, and to 80 per 1000 by 2000.
8. Providing 50% of rural communities with basic social amenities by 1995, and 75% by 2000, to stimulate and sustain self-reliant development.
9. Ensuring access to services for high-risk clients, including women under the age of 18 or over the age of 35, those with four or more children, or those with chronic illnesses that increase the health risk of pregnancy.
10. Expand family life education and programming to increase the use of family planning services by men and adolescents.
To achieve these set objectives or targets, the National Population Policy identified these strategies to meet its targets.
1. Embark on an aggressive information and communication campaign to educate individuals about the importance of maintaining a reasonable family size, both for personal and national welfare.
2. Encourage the use of family planning methods by raising the status of women and easing their employment burden.
3. Establishment of day care centers.
4. The promulgation of legislation to eliminate discrimination against women in education and employment.
5. Educational efforts to increase the age of marriage to 18 year
Also, the National Population Policy devoted an entire section to the implementation of the National Maternal Child Health Programming. The objective of this section is;
To reduce the current high childhood and maternal morbidity and mortality rates, especially in the rural and sub-urban areas.
The strategies to achieve these objectives include;
1. Increasing the emphasis on maternal child health care within the primary health care system.
2. The promotion of breast-feeding, nutrition, clean water, sanitation, immunization, birth spacing, fertility regulation and family planning services.
3. Reducing the incidence of high-risk births, which include births to women below the age of 18 or above the age of 35. Births at the intervals of less than two years and more than four births to one woman.
4. Promoting research into traditional health-care methods.
BY
OKEY ENI
COPYRIGHT (C) 2012 OKEY ENI
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