By Jafar Danesi
Children are the hope of future regeneration and survival of any human race and the continued existence of the society. Therefore, whatever threatens the health, survival and normal development of the children also threatens the future regeneration of the human race and the society. It is in realization of this fact that the Nigerian government enacted the Child Rights Act of 2003. The aim of the Child Rights Act is to promote and protect the fundamental rights of children in Nigeria, with a view to ensuring their healthy and normal development.
In order to further demonstrate its commitment to protect the human rights of children in Nigeria, the Nigerian government also ratified the Convention on the Rights of the Child (CRC) on 16 April 1991, and the African Charter on the Rights and Welfare of the Child (African Children’s Charter) on 12 July 2001. Additionally, Nigeria took steps to domesticate both instruments in the form of the Child Rights Act (CRA).
However, irrespective of Nigeria’s passing of the CRA in 2003, the adherence to Islam and the application of Shari’a in the northern parts of Nigeria, where child marriage is practised, continue to violate the provisions of CRC, the African Children’s Charter and the CRA. The practice of child marriage is still prevalent among the Hausa-Fulani tribe (predominantly Muslim) who occupy Northern Nigeria and where Shari’a law is in force. Due to pressure exerted on children by their parents, it is estimated that in Northern Nigeria, 48 per cent of Hausa-Fulani girls are married by age 13, while 65 per cent of the girls are married by age 15 and 87 per cent are married by age 17.
Recently, it was widely reported in various daily Newspapers, a 14-year-old girl that was forced to marry a 35-year-old man in Nigeria. She made the news for poisoning and killing her ‘husband’ and two of his friends. Although it’s not right for her to kill her husband and his friends because of the wise saying that two ‘wrongs’ cannot make a right. However, my argument is that the issue is a little bit more complicated than a 14-year-old girl killing her ‘husband.’ In order to understand the situation that young girl found herself, it is important to explore the practice of child marriage in Nigeria, a bit more deeply.
Informed consent is a key element, amongst others, that is very vital in entering into any marriage with someone else. But, in a situation where the parents arrange a suitor for their girl child without her consent, it is deemed to forced marriage rather than marriage by informed consent. It is even more so, where the young girl was not given the opportunity to either accept or reject such parental arranged or forced marriage. My argument here is that even if the child gave her consent, children are not capable of informed consent. In order to give informed consent on any issue, you have to be fully aware of and have the capacity to understand what you are consenting to. Children do not have this ability. This is not to say that children are incapable of reason. But, they are not fully capable of always understanding the costs of their choices. This is why, when children do something horrid, we tend to judge them as children, and we do not hold them to the same standard as we hold adults.
Having argued that informed consent is key to a valid marriage and marital life, therefore any marriage to a girl child that is below 18 years of age is wrong and therefore void because it was consummated against Section 61, Part I of the 1999 Constitution of the Federal Republic of Nigeria. Aside from the Sharia law that permits marriage to underage girls, there are other factors within the context of the Nigerian society that help to promote child and forced marriage. A major problem with the CRA is its differing levels of acceptance. When the law was passed, it was not automatically enacted into law in each of Nigeria’s 36 states. Each state had to pass the Bill into their state laws for it to become enforceable in order to guarantee and protect the rights of children and, most importantly, to prevent child marriages. Since the CRA was passed in 2003, 12 states have yet to domesticate it. What this means is that children may have no rights in states which are yet to enact the law and, subsequently, if child marriage is practised, it is not an offence.
It is interesting to note that apart from the state of Enugu, the 11 states which are yet to domesticate the CRA are in the northern part of Nigeria and these have adopted a penal code which is based mainly on Shari’a law. It is not surprising that states in Northern Nigeria, inhabited predominantly by Muslims and with a culture and tradition heavily influenced by Islam, have objected to receiving and passing the CRA because it conflicts with the Islamic point of view, particularly in relation to the minimum age of marriage. While the law sets a child to be a person under 18, in Islam there is no age that marks childhood. A child’s maturity is established by signs of puberty such as menstruation, the growth of breasts and pubic hair. To further buttress the argument that age is a factor contributing to the reluctance of many northern states to pass the CRA, when one of Nigeria’s northern states, Jigawa, accepted the CRA, its state law did not adopt the age of 18 as the age of maturity as specified in the Act. Instead, it determined the age of childhood in relation to puberty.
Additionally, other than the age conflict between the CRA and Islam, the CRA creates a conflict between human rights and religion, which is arguably one of the other major reasons for its rejection by most Northern Nigerian states. For example, while the CRA is aimed at protecting the human rights of children, it also infringes the rights of freedom of thought, conscience and religion as provided for in section 38(1) of the 1999 Constitution.
One of the factors that promoted under age and forced marriage in Nigeria is the age-long cultural practice of collecting ‘bride price’. When a girl is getting married in Nigeria, her groom is expected to pay a certain price for her. This is because of the belief that a girl is the property of her family, her father to be more specific. In order to marry her, you have to pay a price for her. This has also provided a very huge motive for why child marriage as a practice has continued to persist. It further explains why girls from poor families are the most vulnerable to this practice. One other factor that contributes to the practice of child marriage in Nigeria is poverty. Parents’ especially poor parents usually see their girl child as a dispensable property that can be traded off to alleviate their financial problem and poverty situation.
Child marriage is both a cultural issue and also a social justice issue and a national health issue that need to be addressed to protect the fundamental human rights of the girl child in Nigeria. There is need for concerted effort to stamp out the practice of child and forced marriage in Nigeria. Anyone found to have married an underage girl should be seen to have committed a crime against the state and should be brought to justice irrespective of their status in the society.
•Danesi Executive Director, Policy Research