The Case Against Child Marriage

The Paedophilic Alhaji 

Last week, a photograph of an Alhaji purportedly from or in Kano and a girl who was said to be 11 years old, trended on social media. I thought he was her father or grandfather, until I read the caption that accompanied the photograph which read: “She is my choice. I married her because we love each other”. I was shocked that this kind of child abuse, is still happening in Nigeria of 2023. However, I later learnt that, like many of the fake things we see on social media that go viral,  the narrative of the photo was false. I saw another photo of the couple, and apparently, the young bride in the photo is 21, not 11 (while I couldn’t determine her age in the second photo, she certainly didn’t look like an 11 year old child in it).

This however, doesn’t detract from the fact that there are many sick men around, who are nothing more than paedophiles – a paedophile is a person who is sexually attracted to children; a person  who has absolutely no qualms about marrying a girl as young as 11. The caption in the fake photo claimed that an 11 year old child who has not reached the age of consent, let alone understand what romantic love is, was also in love with the Alhaji! Tah!

When I first saw the fake photo, I wondered how a man who was openly committing what can only qualify as a disgusting crime against a minor, can be openly celebrating his criminal activity? Even though it appears that Kano State is one of the two States left that has not yet domesticated the Child’s Right Act 2003 (CRA) which sets the age of consent at 18 years (Zamfara has not domesticated it either), the Penal Code Act (PCA) which is applicable in all the Northern States including Kano and Zamfara, sets the age of consent at the somewhat still tender age of 14, which would  have made the Alhaji’s marriage to an 11 year old child unlawful, if it had been real. 

Marriage Under Sharia Law (Nikah)

Those who commit this atrocity of marrying underaged girls in the North, use Sharia Law as their shield. But, it is impossible to agree that Sharia Law permits underaged marriage, considering the fact that Islam considers marriage to be the legalisation of a sexual relationship between a man and a woman in order to procreate, and one of the first laws of Islamic Marriage, is that the parties to the marriage must have the capacity to marry, and must both consent freely to the marriage. There must also be no legal impediment to the marriage. These three conditions (plus the ijab (proposal), qubool (acceptance), mehr (sufficient consideration) and sufficient number of witnesses) must all be fulfilled, for there to be a valid contract of marriage. 

Islam permits marriage upon puberty, and when the girl child can bear to engage in sexual activity. Biologically/physically, a girl child passes through five stages of puberty starting from Stage 1 between age 8-11 which cannot be observed by the naked eye (ovaries enlarge, production of hormones begin); to between Stages 2-4 age 9-16 when the breasts grow, pubic hair grows, menstrual period starts etc; to Stage 5 up to age 19, when the girl child becomes fully developed. How then, can anyone say that a child who is in the beginning stages of puberty at 11, or at age 14, has reached full puberty and is ripe for marriage? Is this not why many child brides suffer from the disease known as VVF, that is, Vesicovaginal Fistula, urinary incontinence caused by an abnormal opening between the bladder and vagina, when they are forced to have sex or bear children at an early age, before they are fully developed?

Age of Consent

Section 29(4)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution) defines ‘full age’ as 18 years and above. However, while some may argue that that definition of full age is restricted to only Section 29(1) of the Constitution, which concerns the renunciation of Nigerian citizenship, Section 27(2)(a) of the Constitution also refers to full age and capacity for the grant of a certificate of naturalisation. Can this be taken to mean that 18 is the general age of consent in Nigeria, or it is only for citizenship purposes? I submit that the Constitution needs to make a clear provision on the ‘full age’ of a Nigerian.

By virtue of various statutes, there seems to be a general consensus that the age of consent in Nigeria is 18 (also see Section 12(1)(b) of the Electoral Act 2022), so that one conclusion we can safely draw is that, under the law, the age of consent cannot be age 11. For the 34 States that have domesticated the CRA, the age of consent is definitely 18. Section 21 of the CRA provides  that a person under the age of 18 is incapable of contracting a valid marriage (also see Section 31(1) of the CRA). It is instructive to note that Senator Ahmed Yerima, former Governor of Zamfara State, who was the first to declare Sharia in his State in 2000, is famous for his penchant for taking younger girls as his brides, even being accused of marrying a 13 year old girl in 2009 (which would have been contrary to the PCA which is also applicable in Zamfara); and so, it is therefore, no surprise that his State, Zamfara, has failed to domesticate the CRA, since past Governors usually maintain a firm grip on their States long after they cease to be in office. Wouldn’t be so sad, if the children of a State are being denied the protection they deserve under the law, due to the perverseness of a few? 

Section 29(4)(b) of the Constitution goes on to provide that “any woman who is married is deemed to be of full age”. This implies that a 14 year old married girl, is deemed to be 18. Will she be deemed to be 18 only for the purposes of naturalisation and renunciation of Nigerian citizenship, or generally? In Orji v Dorji Textile Mills (Nig) Ltd & Ors (2009) LPELR-2766(SC) per Niki Tobi JSC, the Supreme Court held inter alia about the word ‘deem’ that: “….it means to treat a thing as being something that it is not, or as possessing certain qualities that it does not possess. It is a formal word often used to create legal fictions…..When a person, for example, is deemed to be something, the only meaning possible is that whereas, he is not in reality that something, the Act of Parliament requires him to be treated as if he were”. In the context of this discourse, it  means considering a married 14 year old girl to be 18 because she’s married, not because she’s 18 in reality. Just like Section 318 of the Constitution which equates a Primary School Leaving Certificate with a Secondary School Leaving Certificate, this is yet another falsehood crafted into the grundnorm, for the protection of paedophiles who marry little girls, for them to be deemed 18 in the eyes of the law, especially if the ‘full age’ of 18 in the Constitution is taken as general, and not just for citizenship purposes.

The capacity to consent and the age of consent, create the legal impediment to marriage in Nigeria, whether under Islamic or any other law. While Sharia Law and Customary Law constitute two of the sources of law in Nigeria, our legislated laws stand superior to all other sources of law and have the power to increase or decrease the scope of other types of law. Therefore, laws like the CRA and other legislation in that regard, will take precedence over Sharia and Customary Law.  And so, assuming without conceding that Sharia Law considers 11 to be the age of consent,  laws like the CRA, PCA etc say otherwise, thereby decreasing the scope of Sharia Law in that regard.  Section 7 of the Sexual Offences Act 2015 provides for the offence of defilement, to have sexual relations with a minor below the age of 18 and prescribes a punishment of life imprisonment upon conviction for the offence; while Section 23(5) Cybercrimes Act 2015 defines a child as one below the age of 18. Under the Penal Code which is applicable in the Northern  States, age 14 is the age of consent – see Sections 39(c) & 282(1)(e) of the PCA. Also see the case of Natasha v State (2017) LPELR-42359(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun JSC where the Supreme Court held that under the Penal Code, a child less than 14 years old is incapable of giving consent. 

Conclusion 

I urge the remaining States that have not domesticated the CRA, to do so immediately. Or can we argue that by virtue of Section 17(3)(f) of the Constitution which provides for the protection of children and young persons against any type of exploitation, and which is binding on us all by virtue of Section 1(1) of the same Constitution, the CRA can be considered to be a statute of general application since it concerns the protection of all children in Nigeria, and therefore, does not need special domestication to be applicable in a particular State? 

There must also be public education – that marrying a child under the age of 18 is unlawful. Section 22 of the CRA strictly prohibits Parents and Guardians from betrothing a child to any person, while Section 23 prescribes a punishment of N500,000 or five years imprisonment or both, upon conviction for betrothing or marrying a child. Parents and Guardians who are favourably disposed to giving their underaged daughters out in marriage, must also be educated on the dangers of engaging in such a vile act; that not only is it a crime, but that it is very likely to be physically harmful to the child, by way of VVF. Girls suffering from VVF are then shunned by society because of the odour that surrounds them, as a result of the constantly leaking urine caused by the damage to their bladders and vaginas. The psychological trauma inflicted on these little girls as a result of early marriage and sexual activity, is another matter. No one, especially helpless little girls, should be made to go through such inhumane treatment. At that age, they should be in school learning; it is unconstitutional to subject them to such (see inter alia, Sections 18(3)(a)-(c) &  34(1)(a) of the Constitution).