By Uju Okeke
The ongoing constitution amendment, particularly section 29 (4) (b), highlights a significant issue that has been begging for attention. It is girl-child marriage. To lay the matter to rest, there is a need to answer some questions raised by the section. These include–who is a child? What are the constitutional consequences of childearly marriage?
The Child’s Rights Act defines a child as a human being who is less than eighteen 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 ratified and domesticated. 18 years is the age of majority in Nigeria agreed, albeit implicitly, by some constitutional provisions. These include Section 29 (4) (a) which provides that ‘full age” means the age of eighteen years and above, though dealing with citizenship; Section 35 (1) (d) permits denial of right to personal liberty to a person less than eighteen years for education or welfare. Section 36 (4) (a) authorizes the exclusion of the public from courts/tribunals hearings for the welfare of persons who have not attained the age of eighteen years; and Section 77 (2)/ 112 (2) provides that to be eligible for registration as a voter for either national or state legislative house, a Nigerian must have attained eighteen years.
Children are generally excluded from activities like voting, driving, entering into a contract, because such activities demand physical, psychological and mental maturity. Children are believed to lack the capacity to enter into contracts. Marriage is a contract requiring the consensus of the parties involved. Marriage is also widely believed to be of adult concern as a child lacks the full understanding 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 of 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 conventions have 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, also guarantees fundamental human rights to the citizens.. These rights are divided into Civil /Political and socio-economic, rights with the distinction lying in the justifiability of Civil/Political rights. This articles 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. 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 criminalizing 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 (Pg. 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. 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.
ν Okeke writes from Lagos.