Constitutionalising the Violation of the Right of the Girl Child in Nigeria: Exploring Constitutional Safeguards and Pitfalls
The Senate of the Federal Republic of Nigeria, the highest legislative arm in Nigeria, is on the verge of enshrining the legality of child marriage. This is a direct implication of the voting pattern anchored by Senator Yerima (former governor of Zamfara State) refusing the deleting of Section 29 (4) (b) of Nigeria’s current Constitution. Nigeria’s 1999 constitution left open a possibility for the legality of girl child marriage: Section 29 (4) of the 1999 Nigeria Constitution provides that age of maturity is age 18. However, Section 29 (4) (b) includes an exception for girl children and proclaims that girl children reach maturity when they marry, regardless of the age of marriage. Thus, marriage arguably elevates even a ‘1 year’ old female child to the status of womanhood. Removal of the above section portends the inferred exclusion of child marriages.
Unfortunately, proponents of maintaining Section 29 (4) (b) base the argument on Islamic law. However, Nigeria is not a religious state and the constitution should be devoid of religious undertones. Indeed, instead of mere inference of rejection of girl child marriage there should be a literal and direct rejection of marriages of girls below 18 years of age.
Nigeria’s obligation under global and regional laws remains at variance with maintaining Section 29 (4) (b). Sec 21 and Sec 22 of the Child’s Right Act of Nigeria 2003 (CRA) prohibits the marriage of a girl child or support any such act by an individual. It further provides for punishment for anyone involved in its promotion (sec 23). In addition, Article 18 (3) of the African Charter on Human and Peoples Rights and Article 27 of the African Charter on the Rights and Welfare of the Child all prohibit girl child marriages. Article 16 of the Convention on Elimination of all Forms Discrimination against Women (CEDAW); Article 16 (2) of the Convention of the Rights of a Child (CRC) all abhor child marriages. The 1962 Convention of Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages also advocate for the stipulation of minimum marriage age of the girl child (Article 1 and 2).
The CRA (2003) of Nigeria is compliant with the right to life and health of a child as stipulated in Q2 V 233 (see ITM Kalamadeen; Rights of Nigerian Child under Shariah and The Child’s Right Act 2003). It is my inference that the reasoning of Kalamadeen can also be hinged on the dangers of early girl child marriage which includes but not limited to high risk of HIV/Aids, Cervical Cancer, other STD’s as inherent risks to the right to health and life of the child which Islamic Law upholds.
Instead of the entrenching a violation of human rights and an abuse of Nigeria’s obligation under global and regional human rights law, the protective clause of prosecuting any person involved in the promotion of early marriage for girls under the age of 18 should be activated and individuals involved in it be prosecuted according to the law. As it currently stands, Section 29 (4) (b) remains a significant roadblock to gender equality in Nigeria.
Azubike Onuora-Oguno A.C, LLB (Nig), BL (Nig), LLM (Pretoria), is currently an LLD candidate and Tutor in the Center for Human Rights at the University of Pretoria. His research interests are human rights and international law with a particular focus on minority rights (Indigenous People and Gender) and the right to education.