The recent ongoing constitutional amendment has brought about so much arguments as to the removal, retainment or inclusion of different clauses in the constitution. Some of this clauses have been misconstrued, misinterpreted and has thus led to various misconceptions. Evident in this respect is the most controversial section 29 which has been seen as some an evidence of gender gap in d constitution and interpreted by others to be a provision which in a way stipulates or implies a marriage age for a girl child. While some welcomed the removal of the clause and arguments were made based on religious reasons, others where against it and argued that removal will bring about child marriage as they had interpreted sec 29(4b) to be the marriageable age for a girl child. Nigerians home and abroad have commented on this issue, lawyers, celebrities and the likes has also had their fair share, bloggers have not failed to update on this issue and even ice d uniced cake with their mouth- watering articles and comments, some honest, some deceitful, all in the struggle to get a voice. I found the comment made by this Nigerian rather interesting, please read thoroughly and pay attention to details:
My opinion on Section 29 (4) (b) of the 1999 Constitution
“I was asked by many of my friends to give a “legal” opinion on the recent debate on the “age of marriage,” ignited by the attempt to amend section 29 (4) (b) of the 1999 Constitution by the senate of the Federal Republic of Nigeria. As a lawyer, I’m closely following the debate on different forums. I am disappointed that many of the people engaged in the debate did not actually understand the issues or the law. Those who are supporting Senator Ahmed Sani Yerima assumed that it is a plot against Islam and an attempt to impose western values on them. Those supporting the amendment believed that they are fighting to save young girls from the abuse and exploitation of “child marriage,” which they argue is promoted by Section 29 (4) (b) of the constitution. Both sides are wrong. The amendment is not about the age of marriage. Without understating the dangers of “child marriage,” which I am going to touch later, age of marriage is only used as a red herring.
What, then, are the issues? Section 29 of the 1999 constitution talks about the right of a Nigerian citizen of “full age” to renounce his/her Nigerian citizenship. “Full age” for the purpose of this section was defined as 18 years and above. But subsection 4 (b) made an exception for married women. According to the contentious clause in Section 29 (4) (b), “any woman who is married shall be deemed to be of full age.” Is this clause a good or a bad thing? Those who are supporting the amendment (deleting) of Section 29 (4) (b) in the senate argue that the section is discriminatory against women and promotes child marriage. In my opinion, this is a mischaracterization of section 29 (4) (b). It has nothing to do with regulating the age of marriage. It applies to women who are already married. In fact, one may argue that the clause actually is an empowerment to married women by giving them the power to renounce their citizenship, irrespective of their age, if they so wish.
Why is this issue so controversial? There are two possible explanations. First, the objection against the amendment of section 29 (4) (b) on the floor of the senate was made by Senator Ahmed Sani Yerima, former governor of Zamfara State, and the person who introduced Sharia in his state in 1999. Senator Yerima was criticized by many Nigerians in 2009 for marrying an Egyptian girl that was said to be below the age of 18 years. Some members of the senate and the public assumed that because it was Yerima that raised the objection against the amendment, he must have had a sinister motive of promoting child marriage. Secondly, Yerima didn’t help matters when he attempted to use religion to argue against deleting the clause. On this issue, the Senate was unfortunately divided along religious lines. Majority of the Muslim Senators from the North supported Yerima and majority of the Christian senators from the South supported the amendment. There are few senators who didn’t vote in this sentimental and polarizing way. What happened in the Senate was followed by heated debate on the social media. Many self-appointment scholars used the occasion to give religious justification to a matter that has nothing to do with religion. Haters of Islam also use the occasion to criticize Islam and Muslims.
I want to point out that the National Assembly has no constitutional power or jurisdiction over marriages conducted under Islamic law and customary law. Majority of the marriages in Nigeria were conducted under customary and Islamic law. According to item 61, Part 1 of the Second Schedule under the Exclusive List which listed matters over which the national assembly has legislative powers, the power of the national assembly is on “The formation, annulment and dissolution of marriages other than marriages under Islamic law and customary law including matrimonial causes relating thereto.” Whether this is a good or a bad thing is a separate debate. It is clear, however, that only states have the legislative power to enact laws on Islamic and customary marriages. That is why the Child Rights Act, which is against child marriage, passed by the National Assembly into law, is only applicable in states that have passed the Act into law. Majority of the states in Northern Nigeria are yet to pass the Child Rights Act into law. Unfortunately, even in states that have passed the Act into law, it is rarely enforced.
Now I will talk on age of marriage.
There is no uniform age of marriage in Nigeria, just like there is no universally accepted and enforceable age of marriage. Age of marriage remains one of the contested issues under the women’s rights and child rights discourse. Many countries have rejected any standard age of marriage on religious and cultural grounds.
In 1954 the British colonial administration in Northern Nigeria enacted a law that gave the Native Authority power to legislate on issues related to “regulating child betrothal” and “controlling the movement of children and young females from or within the area.” This obscure and unpopular law was used only in Biu, Idoma, Tiv and Borgu marriages. The marriageable ages laid down were 12, 13 and 14 respectively.
Under Nigerian family law, like many other countries, marriageable age is one of the preconditions for the validity of marriage. The Nigerian Marriage Act is silent on age of marriage. It is also unclear what marriageable age is under the customary and Islamic law — the two major legal orders that govern marriage in Nigeria. Neither the Marriage Act nor the Matrimonial Causes Act prescribes a minimum age for marriage in Nigeria. The Marriage Act, under section 3(1)(e) merely provides that a marriage will be void if either of the parties is not of marriageable age.
The only clear legal framework on age of marriage is the one provided by international treaties. Nigeria is a signatory to some of these treaties. If you are interested in understanding the provisions of international law on this issue, you should look at Article 16 of the Universal Declaration of Human Rights (1948), Article 1 (c) of Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956), Articles 1,2, 3 of Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1964), Articles 2 and 16 of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979), Article 12 of The International Covenant on Economic, Social and Cultural Rights (1976), and the Convention on the Rights of the Child (CRC) (1989). These treaties are not directly applicable unless they are domesticated by the national Assembly and in some cases by states.
Social reformers across the globe have acknowledged the limits of law in controlling cultural practices that are embedded in people’s way of life. I think law by alone cannot solve the problem without removing the underlying factors that lead to this babaric act. I find the following as effective (non-legal) means of addressing the problem of child marriage:-
1.Ensure enrollment, retention and completion of. girls in schools at least to secondary school level
2.Provide vocational training and continue education for married women
3.Engage teachers to help in halting early marriage—they can help explain the law to parents, importance of education and report violation to community leaders
4.Eradicate abject poverty which pushes many parents to remove their children from school ”
Education, education, education
Saturday at 23:46
By blessed onyewuchi
Another argument was that given by Maryam Uwais, see http://lindaikeji.blogspot.co.uk/2013/07/senator-yerima-and-constitutional.html?m=1
Now weighing the facts given by both sides, d opposing parties and the conceding parties 2 such amendment of this clause(deleting), I refuse to be torn between two walls or put on the horns of a dilemma, as the synopsis of what went on the floor of the senate is vague and also the intentions behind such amendment. It is said that nobody knows the intentions of man’s heart not even the devil is that smart, so it would be unfair 2 cast a stone on anyone as both the true intentions of the senate in considering such amendment and the intentions of the draftsmen in the inclusion of such clause can be reasonably deduced. However, it must be noted that section 29 which is the very bone of contention and which has led to the alleged passage of the child marriage bill, has always been a very controversial one as it has also been alleged to be gender biased as it derives married women from their rights to renunciation of their citizenship. I believe this issue arose as a result of the floodgate inferences and interpretations given by various people especially to the clause in this section due to the ambiguity present in its provision as put in by the draftsmen whose intentions are rather vague and the failure of the judiciary to give an explicit interpretation of that section.
Hence the silence of the legislators over the years on this section has led to floodgates argument on whether or not such full age given as 18yrs also refers to the acceptable marriageable age or whether it can be implied as such. This issue can only be accurately answered by the lawmakers and the judiciary who have in this case failed to give an interpretation of it over the years up until now, hence opinions and inferences has been given by people as to what they think it means.
Now this is my submission, it can be said that d clause have 3 interpretations, First that a person who is not up to 18yrs cannot renounce his citizenship, secondly a married woman cannot renounce her citizenship, thirdly that the marriageable age of a girl is 18yrs. The first and second interpretations are clear but the third is vague. A critical examination of that section will show that the marriageable age of a lady was never been stipulated. However going by the Child Rights Act , a girl will not be said to be of a marriageable age until she has attained the age of majority, a full age, which has been given by that section to be 18yrs. Hence the constitution of Nigeria never expressly stated the marriageable age of a girl, it has always been implied by people and read alongside the Child’s Right Act. Child marriage has always been in existence especially amongst Islams. Why such act has never been prosecuted or made a crime under the penal code or criminal code is another matter to be looked at separately. I believe that a custom or tradition of a people which is repugnant to natural justice, equity and good conscience should not be enforceable or condoned. This aspect again our law makers have given a blind eye to. Senator Yerima who said that such marriage will not be consummated until the girl has reached a full age was only trying to justify the barbaric act which he committed years ago wen he married an underage girl. How would we know he never consummated the marriage till she attained the age of majority. There was never a “Keeping up with the Yerima’s” or was there a video to prove that fact? The stories about child marriages are always the same, painful and annoying. The act is beastly, barbaric and repugnant to every aspect of natural justice and good conscience and should be criminalized in both codes(penal and criminal).
However, notwithstanding this fact I vote that the clause be amended(deleted) as it is in conflict to sec 42 of the same constitution which makes provision against discrimination of any kind, thus this clause is a discrimination against married women. I also suggest the inclusion of a provision that expressly provides for an acceptable marriageable age of a girl which should be when she has attained majority, a full age of 18 and such provision should be made binding on all states under the federal republic of Nigeria. Furthermore, criminalizing and penalizing of child marriage or underage marriage and stringent punishments of offenders should also be considered. It is a barbaric act worse than slavery and should not be seen in a developing country like Nigeria. Finally I am of a strong opinion that the whole constitution as amended be PRESENTED to the Nigerian people in an organized sovereign conference and a referendum conducted to ascertain their consent to such amendment, all the clauses as amended in the constitution before passed into law. Hence we can boldly say:
“We the people of the Federal Republic of Nigeria
Having firmly and solemnly resolve, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding:
And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people
Do hereby make, enact and give to ourselves the following Constitution:-
This is my humble submission
#United We Stand
Eko o ni baje o