The ongoing constitution amendment, particularly Section 29 (4) (b), highlights a significant issue that has been begging for attention: girl-child marriage. A lawyer and human rights activist working with the Centre for Mmadu (C4M), a non-governmental, human rights organisation, Uju Peace Okeke, writes that there is a need to answer some questions raised by the section, such as who is a child, should children engage in marriage and what is the constitutional consequence of child marriage?
The Child’s Rights Act defines a child as a human being who is less than 18 years of age. This is line with the provisions of the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (African Children’s Charter) which Nigeria has not only ratified but domesticated. That 18 years is the age of majority in Nigeria is favoured, albeit implicitly, by some constitutional provisions. These include Section 29 (4) (a) which provides that ‘full age” means 18 years and above, though dealing with citizenship; Section 35 (1) (d) permits denial of right to personal liberty to a person less than 18 years for education or welfare; Section 36 (4) (a) authorises the exclusion of the public from courts/tribunals hearings for the welfare of persons who have not attained the age of 18; and Section 77 (2)/ 112 (2) providing that to be eligible for registration as a voter for either national or state legislative house, a Nigerian must have attained 18.
Children are generally excluded from activities like voting, driving, entering into a contract, because such activities demand physical, psychological and mental maturity. Children are held to lack the capacity to enter into contracts. Marriage is a contract requiring the consensus ad idem of the parties involved. Marriage is widely believed to be of adult concern as a child lacks mens rea to comprehend fully what marriage is about. This is understandable because there is a time for everything, a time to be a child and a time to be an adult.
Experts’ have noted grave effects of girl-child marriage. These include susceptibility to the health risks associated with early sexual initiation like obstetric fistula. Their partially developed reproductive organs could predispose them to complications during childbirth, Vesico Vaginal Fistula (VVF), secondary infertility, maternal and infant mortality. Their Inability to negotiate safe sex increases their vulnerability to Sexually Transmitted Diseases and infections including HIV. They are victims of sexual and other forms of domestic abuse, social isolation and are deprived the opportunity to maximize their potentials in order to make meaningful contributions to their worlds, perpetuating gender inequality and female poverty.
It is little wonder that besides the Child’s Rights Act, a plethora of international and regional ratified and domesticated treaties like the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Protocol to the African Charter on Rights of women in Africa (Women’s Protocol) and the African Children’s Charter, specifically prohibit Child marriage.
The Nigerian Constitution, the grundnorm guarantees fundamental human rights to Nigerians. These rights are divided into Civil /Political and socio-economic, with the distinction lying in the justiciability of Civil/Political rights. This writing will not overstress the indivisibility of rights, the pertinence of making socio-economic rights enforceable or even Nigeria’s duty of upholding obligations voluntarily imposed on itself by ratification as was held by the African Commission in the case of CLO V. Nigeria. It focuses on the guaranteed fundamental rights provisions of Constitution and domesticated treaties in relation to child marriage.
Section 33(1), in guaranteeing right to life, provides that ‘every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court …’ When girls are forced into marriages, they begin procreation before the full development of their reproductive organs, predisposing them to complications of labor which could result in maternal mortality, a common occurrence in Nigeria. This death, not flowing from execution of court sentence is a violation of right to life. In the face of maternal mortality due to underage pregnancy, Nigerian girls cannot truly be said to enjoy right to life, the fulcrum of other human rights. One of the positive steps necessary for the prevention of this unintentional loss of lives and protecting right to life is criminalising girl-child marriage.
Section 34, in guaranteeing dignity as a human right provides that ‘ … no person shall be subjected to torture or inhuman or degrading treatment, … no person shall be held in slavery or servitude…’ Dignity entails that women should have a say in the choice of their life partners. Compelling young girls into marriages without consent is degrading. It is indeed painful to force a girl into marriage with a man, old enough to be her grandfather. In the case of Uzoukwu and 5 Ors, V Ezeonu II and 8 Ors, (1991) 6 NWLR (Pt. 200) 708, ‘torture was held to include …a mental torture in the sense of mental agony or mental worry … degrading treatment has the element of lowering the societal status, character, value or position of a person’. Many child-brides are withdrawn from schools for this purpose evidencing that girls’ aspirations are not as important as those of boys who are allowed to continue their education. This act, flies in the face of Articles 17(1) and 24 of the domesticated, African Charter on Human and Peoples’ Rights (African Charter) which provide for rights to education and satisfactory environment favorable to development. The interpretation of which will prohibit child marriage, a retrogressive practice creating unfavorable environments for women’s development. This is particularly so because education is one of the best strategies for promoting women emancipation, demystifying retrogressive customs and transforming attitude towards women. The act resonates lines in Agnes Dewenis poem ‘Tell me why as a woman, I have all these burden When God, the Constitution and the United Nations all tell me You and I are equal in all respects?’
Child marriage is a form of modern day slavery. News of maltreatments meted out on these children by their husbands and in-laws in the name of wife chastisement constantly inundate our media. These child-wives are compelled to engage in domestic tasks too tedious for their tender ages. Adult concerns like sex, is foisted on them with all its problems earlier noted. What other degrading treatment could be suffered by a girl whose underage pregnancy leads to VVF or secondary infertility? They are forced to raise children while they are themselves children, thereby making a lot of uninformed decisions. How can a mere child succeed in these tasks which many adults cannot cope with? Of course their children and the larger society will be the worse for it. Since women are their children’s first teachers, what will be the fate of students of an ignorant teacher?
Section 35 permits the violation of right to personal liberty of a minor only for the purpose of education or welfare. Forced marriage violates this right as is neither for education nor for the welfare of the girls.
One of the grounds for non discrimination as provided in Section 42(1) is sex. Discrimination could either be express or implicit, by the practical application of any law or practice. Child marriage is discriminatory as it applies only to girls, denying them right to be children and opportunity to grow to be better adults. If the customs applaud it, why are boys not compelled to marry women, old enough to be their grand-mothers who will also have the privilege of chastising them with minor assaults? This reveals the insincerity of the equality gospel, bringing to mind, Eleanor Roosevelt’s remarks
Where after all do universal human rights begin? In small places, close to home so close and so small that they cannot be seen on any map of the world. Yet, they are the world of individual person: the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.
In consonance with the above quotation, the Nigerian society ought to preserve the human rights of its girls, if it must move forward. In agreement, the United Nations World Conference on Human Rights in Vienna cleared every misconception, by specifically stating that ‘the human rights of women and of the girl-child are an inalienable, integral and indivisible part of human rights’. Indeed, article 18 of African Charter, provides for the protection of the rights of women and children as stipulated in international conventions and declarations while articles 60 and 61, empowers the African Commission to draw inspiration from international and regional human rights treaties and instruments. By the implication of domestication, Nigerian courts can rely on all ratified-but-yet-to-be-domesticated treaties. Inspiration drawn from CEDAW, the African Women’s Protocol and the African Children’s Charter will prohibit child marriage. The court as the last hope of common girls, must uphold this if the protection offered to Nigerian girls must go beyond paper/shelf protection.
It is observed that child marriage is many times shrouded in cultural, structural and religious systems. Undeniably, the African charter recognizes freedom of culture and religion in articles 8, 17 (2, 3) and 22. However, article 29 (7) qualified this by providing for the preservation of ‘positive cultural values’. The African Women’s Protocol, in confirmation, expressly provides for right to positive cultural contexts while calling for the elimination of harmful practices. Concurring, section 21 of the Constitution ‘protects, preserves and promotes only cultures which enhance human dignity’. Proper balancing of these interests will mean promoting positive culture that dignify women as women’s rights cannot be sacrificed at the altar of religious cum cultural practices.
The preamble to the constitution says ‘we the people of the Federal Republic of Nigeria…’ Nigerian girls, as part of the ‘we’ should be beneficiaries of the fundamental rights enshrined in the constitution. Little wonder section 17 (3) (f) provides that ‘the State shall direct its policy towards ensuring that…children, young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect…’
Seeing that child marriage violates guaranteed fundamental human rights and that progressive nations are judged by the way they treat women and children, it behooves our lawmakers to exhibit the necessary political will to protect our girls by removing the befuddling section 29 (4) (b) and similar discriminatory provisions from our Constitution.
