Little Madam and the Road Not Taken

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

As I attain the of age 59 on Thursday, my last birthday in my 50s, I thank God for my life and His grace upon me. In this day and age where people are not so truthful about their age and credentials, I feel it necessary to celebrate mine openly when possible!

The Little Madam

A few weeks ago, I was travelling back to Lagos  via the terminal where chartered flights fly from. I sat alone in one of the little sitting areas, waiting for my flight to be called. At a point, I got up to stretch my legs, and when I returned, a teenager dressed in a hijab, who looked nothing more than about 16-17 years of age (17 being the outer limit in my eyes) had sat opposite me in the same sitting area with her two children. I estimated that her daughter would be about four years old, while her son was about two. I thought the children were her siblings, until I heard the children referring to her as their mother, and subsequently, two men waiting to board them onto a private jet referred to her as ‘Madam’! By the time our flight was ready for take off, the two men had gone off with the children, and so, little Madam was left alone with me. One of my co-passengers asked me how I knew the girl (because we were sitting together), and I explained that I didn’t know her, but in fact, contrary to what they believed, she is a married child, a little Madam who has two children. My co-traveller was shocked. 

Unfortunately, many have made the mistake of using Section 29(4)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) as the basis for elevating this married child to the level of a little Madam, because the provision purports to deem any girl who is married to be of ’full age’, which is defined as 18 years and above by Section 29(4)(a) thereof. The sum and substance of  Section 29(4)(b) of the Constitution is that if a 10 year old is unlawfully married off, by virtue of her marriage, she is deemed to be 18, even though in reality she’s 10 years old! How ludicrous! This ‘abracadabra’ provision is clearly nonsensical and perverse, and should be expunged from the Constitution. 

The first few points to be noted here are that, to have been travelling by private jet, the little Madam must be married to a man of means who should definitely know better than to have married a child – so, it isn’t only illiterates or the poor that engage in paedophilic behaviour. Secondly, to have a four year old child even at age 17, would mean that little Madam got pregnant when she was undeniably underage – 12 or 13; and, thirdly, even though she is literate, I wondered if her education hasn’t been cut short, now that she is a married mother. I felt bad. 

I had written about Child Marriage in March 2023, in a piece titled ‘The Case Against Child Marriage’, and I didn’t think I would have to consider this topic again, at least, not so soon. But, since this issue of early marriage keeps popping up like a recurring rash, it has to be addressed once more, particularly with the recently aborted attempt of the Speaker of the Niger State House of Assembly (NSHA) to marry off 100 girls in a mass wedding, an attempt that was truncated by the actions of the Minister of Women Affairs, Mrs Uju Kennedy-Ohanenye (the Minister). Even though the newspaper reports that I read didn’t state the ages of the girls, it is clear that the main bone of contention between the Minister and the NSHA Speaker, is that the Minister believes that the 100 girls or some of them may be too young to be married off, and their ages should be ascertained first. This is buttressed by the fact that, in his statement, the NSHA Speaker insisted that the girls were of marriageable age in Islam. If they were 21 years old and above, no eyebrows would be raised. 

Matters Arising

1) Enablement of the Cycle of Poverty

Let us examine the various matters arising, the most obvious one being that it is surprising that the NSHA Speaker, the Chief lawmaker of Niger State, is more interested in marrying little girls off, rather than ensuring that they achieve the mandatory educational goals set out in Section 18 of the Constitution. Why wasn’t the NSHA Speaker more concerned about rendering assistance to the girls’ families and orphans so that they could complete their education, complete secondary school at least, or even attend University, or learn skills post-Secondary to equip them for life? It almost seems as if there’s a conspiracy by those in high office, to ensure that the horrible cycle of poverty never ends. Instead of empowering the girls with education and skills in order to make them useful to themselves and their families and giving them a better standard of living, the NSHA Speaker prefers to marry off those who are yet to acquire good sustenance skills and obviously cannot afford to get married, and start to procreate in poverty, so that the cycle of poverty which ultimately leads to crime, continues. This conspiracy will always keep the masses down, while leaving those who are in high office unchallenged. 

2) Constitution’s Definition of ‘Full Age’

Secondly, Section 29(4)(a) of the Constitution defines full age as age 18. And, even though some have argued that full age of 18 in Section 29 (1) & (4)(a) is for citizenship only, a closer examination of this provision shows that Section 29(1) is a categorical provision that isn’t restricted to citizenship alone, as it states: “Any citizen of Nigeria of full age…..”. In Nigercare Development Co. Ltd v Adamawa  State Water Board & Ors (2008) LPELR-1997(SC) per Ikechi Francis Ogbuagu, JSC, the Apex Court held that in interpreting the Constitution or a statute, the Judge is enjoined to give it its grammatical and ordinary meaning, and not to ramble and distort its construction. Also see Bakare v Nigerian Railway Corporation (2007) LPELR-712(SC) per Aloma Mariam Mukhtar, JSC (later CJN). However, maybe it’s time that the ‘full age’ of 18 is included in its own stand-alone provision in Section 25 of the Constitution, for the avoidance of doubt and argument.

Section 1(1) of the Constitution emphasises the supremacy and bindingness of this document over all persons and authorities in Nigeria, while Section 1(3) thereof further provides that any law that is inconsistent with the Constitution is void to the extent of its inconsistency, and with all due respect, this includes Sharia and Customary Law provisions that may be inconsistent. So, Section 39(c) of the Penal Code Act 1960 (PCA)(applicable in the Northern parts of Nigeria and the Federal Capital Territory, Abuja) which sets the age of consent at the tender age of 14, appears to be null and void because it is a violation of Section 29(1) & (4)(a) of the Constitution. See however, Natsaha v State (2017) LPELR-42359(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC; Habibu v State (2023) LPELR-60351(SC) per Adamu Jauro, JSC, where in both cases which concerned the rape of a child, the Apex Court put the age of consent at 14 by virtue of the PCA.

This is another reason, why I stated above that Section 29(4)(b) of the Constitution should be expunged. Apart from the fact that it is repugnant because paedophiles in society attempt to use it as a basis to legitimise child marriage because of its deeming provision, it contradicts Section 29(1) & (4)(a) of the Constitution. The truth of the matter is that the PCA or any other law, custom or religion that permits marriage before the age of 18 in Nigeria has no leg to stand on, because by virtue of Sections 29(1) & (4)(a) and 1(1) & (3) of the Constitution, they are null and void and of no effect. If these laws are null and void ab initio, I submit that there is nothing for Section 29(4)(b) to deem. Also see Section 12(1)(b) of the Electoral Act 2022 (EA) and Section 7 of the Sexual Offences Act (SOA). One wonders why anyone would want to marry a child anyway, if it isn’t that they are suffering from some psychological disorder.

Section 21 of the Child’s Right Act 2003 (CRA) also sets the age of consent for marriage at 18, providing that an individual below the age of 18 is incapable of contracting a valid marriage. 34 States in Nigeria, including Niger State, have domesticated this law. Though Kano and Zamfara are yet to domesticate the CRA, for reasons that I have outlined above, they too are bound by the Constitution’s age 18. 

3) Wrongly Using Islam as an Excuse for Early Marriage 

The issue of trying to use Islam as an excuse for early or child marriage, cannot fly. In Islam, it is a religious duty to obey the law of the land. So, if the law of the land says age 18 is the age that an individual can get married or is lawful to have sexual relations, all Muslims are commanded to adhere to it. The Holy Quran commands thus: 

“O ye who believe! obey Allah, and obey His Messenger and those who are in authority over you” (Chapter 4:60). Prophet Muhammad (PBUH) said: “One who obeys his authority, obeys me. One who disobeys his authority, disobeys me”. 

Islam permits marriage at puberty and when a girl child can bear to engage in sexual activity. A girl goes through five stages of puberty, starting at Stage 1 between age 8-11 and ending at Stage 5, age 18-19. Growing breasts and starting menstruation between Stage 2 & 4 doesn’t mean a girl child is fully developed and ripe for marriage or sexual activity and child bearing, procreation being one of the reasons for marriage in Islam. 

Since the law of the land provides that the age of consent is 18, any true Muslim faithful has no option but to obey it. I didn’t say this, the Holy Quran did. See also the Holy Bible, Romans 13:1-2. See also Dina d’malkhuta dina “the law of the land is the law”, the principle in Jewish religious law which provides that the civil law of a country where a Jewish person resides, is binding on such person.

Conclusion 

It is obvious that marriage and sexual relations before the age of 18 in Nigeria, is unlawful, as 18 is clearly the legal age of consent. It is high time that people are stopped from committing crimes, using religion as an excuse. Clearly, the provisions of the religions that have been cited above, two of which are principal religions practiced in Nigeria, give no such instruction that faithfuls are permitted to break the law of the land, especially to satisfy sick, paedophilic sexual desires. It is particularly shameful that the NSHA Speaker, Hon. Abdulmalik Sarkindaji, a lawmaker, should have been the one in the forefront of promoting unconstitutionality and illegality, if indeed, any of those 100 girls he sought to sponsor to marry are below the age of 18.

P.S. N90 billion Hajj Subsidy? Really?

I hope it’s not true that the Tinubu administration intends to subsidise pilgrims going on the Hajj Pilgrimage to Saudi Arabia, to the tune of N90 billion. Even if it was to the tune of N90,000, Why? We thought the Tinubu administration came to correct some of the mistakes of the past made by previous administrations, and not continue with them. 

Section 10 of the Constitution is clear that, neither Nigeria nor her States shall adopt any religion as State religion; so, what business is it of Government to be subsidising religious pilgrimages, be it for the Muslims to travel to Saudi Arabia (Mecca & Medina) or for the Christians to go to Israel (Jerusalem)? None. Aside from the fact that this gesture offends provisions like Sections 10, 15(1) & 16 of the Constitution, it is discriminatory, as it elevates Islam and Christianity above all other religions, given their adherents advantages that faithfuls of other religions do not enjoy, contrary to Section 42(1)(b) of the Constitution. The truth of the matter also, is that the poorest of the poor cannot dream of going on any religious pilgrimage, so, again, this is a subsidy to make things easier for the middle class to go on the pilgrimage. 

The Hajj Pilgrimage is one of five Pillars of Islam, a journey that every Muslim is mandated to make at least once in their lifetime, provided that their health and finances permit it. By virtue of this proviso or caveat, it appears to be unIslamic for Government to subsidise Hajj pilgrims, particularly to the detriment of Nigerians generally, seeing as Nigeria is not in a good place financially and the Nigerian people are passing through extreme hardship. Why should a particular small group be singled out, over and above 200 million Nigerians, to be pampered using our scarce resources? Even if the Christians cannot go to Jerusalem this year because of the ongoing war, once they are able to go on their pilgrimage, they will also demand the same subsidy as the Muslims!. Going on a religious Pilgrimage is a sacrifice, made to develop an individual’s connection with God and see the religious sites. How do we expect those whom Nigeria is seeking loans from to take us seriously, if we are just going to turn around and spend the funds on unproductive things which they do not spend their money on in their own countries? 

Nigeria does not have a good welfare system, nor do workers earn a reasonable minimum living wage, nor do we have adequate public education and healthcare facilities (see Sections 16(2)(d) & 17(3)(d) of the Constitution, amongst other provisions) and yet, the issue of subsidising pilgrims can arise?! Methinks that Government should perish the thought. My dear Readers, what do you think?