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memri
August 12, 2013 No.
5403

Nigerian Women's Rights Activist Funmi Falana Slams Senate For Not Taking A Stand Against Child Marriage

Recently, the issue of child marriage was in the headlines in Nigeria, following a Senate debate on a series of constitutional amendments proposed by the Constitution Review Committee. One of the proposed amendments concerns Section 29 of the constitution, which deals with the renunciation of citizenship. The section states that a citizen must be of full age in order to renounce his or her citizenship, and clause 29(4)(a) clarifies that "full age" means 18 years or above; however, clause 29(4)(b) adds that "any woman who is married shall be deemed to be of full age." The Review Committee recommended striking the latter clause as discriminatory against women.

The Committee's recommendation to remove the clause was initially approved by the Senate by 75 to 14 (constitutional amendments require a majority of two thirds, namely 73 votes). However, Deputy Minority Leader Ahmed Sani Yerima protested that the removal of the clause implied that 18 years was the minimum age for marriage, which contravened the Islamic shari'a. He said: "Under Islamic law, any woman who is married is of age, and if you say 18 years is the minimum age for marriage, then you are going against Islamic law."[1]

Following a debate, the committee's amendment was put to a revote, and this time it was backed by only 60 senators, thus falling short of two-thirds. As the NGO "Girls not Brides" points out, "This does not mean that senators voted to legalize child marriage in Nigeria. The contentious clause has been part of the [Nigerian] constitution since 1979, and its scope has always been limited to the question of renunciation of citizenship. However, the senators' decision to retain the clause, particularly in view of the arguments that convinced them to do so, has been considered by many as an implicit legitimization of child marriage."[2]

Senator Yerima is well known for his Islamist views. During his time as governor of Zamfara State in 1999-2007, he was the first governor to implement shari'a law in his state, prompting 11 other governors in northern Nigeria to do the same.[3] Several years ago, he sparked controversy by marrying a 13-year-old Egyptian girl.

It should be noted that the Child Rights Act, passed by Nigeria in 2003, sets the minimum age of marriage at 18; however, only two-thirds of Nigeria's 36 states have endorsed it. As a result, in some parts of the country the minimum age of marriage can be as low as 12.[4] According to a UNICEF report, 39% of Nigerian brides in 2000-2008 were under 18.[5]

The Senate's retaining of the clause defining married girls as adults sparked heated reactions in the Nigerian press and among civil society organizations, which launched an online campaign to raise awareness of the issue of underage marriage in Nigeria. One such reaction came from attorney and women's rights activist Funmi Falana. In an article in English titled "Senators, Go On, Delete It!," she wrote that Section 29(4)(b) must be removed from the constitution because it implicitly legitimizes underage marriage, and thus contravenes not only the Child Rights Act but also Section 42 of the constitution, which bans discrimination on the basis of gender, as well as the United Nations Convention on the Right of the Child, which was ratified by Nigeria in 2001. Noting that underage marriage is associated with severe social and health problems, such as poor education levels among women and a high incidence of stillbirth and maternal death, she urged Nigeria to follow the example of Muslim coutires such as Morocco, Tunisia, Algeria, Egypt, Somalia and Yemen, which have set 18 as the minimum age for marriage. Falana also stated that Yerima's position reflects a poor understanding of Islam, which does not mandate underage marriage for girls.

The following are excerpts from her article.[6]

Reviewing The Constitution Of The Federal Republic Of Nigeria

"It is common knowledge that the [Nigerian] National Assembly[7] has commenced the process of reviewing the 1999 Constitution of the Federal Republic of Nigeria... Last week, the Senate resolved to amend Section 29 of the Constitution pertaining to Renunciation of Citizenship. The said section provides as follows:

29(1) Any citizen of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation...

(4) For the purposes of sub-section (1) of this section.

a. "Full age" means the age of eighteen years and above.

b. Any woman who is married shall be deemed to be of full age

"...Section 29(4)(a) of the Constitution defines 'full age' to mean the age of 18 years and above. However, in recognition of child marriage, section 29(4)(b) of the Constitution states that 'any woman who is married shall be deemed to be of full age.' During the campaign for the review of the Constitution, a strong case was made by the human rights community for the deletion of the objectionable Section 29(4)(b) of the Constitution."

"Having Married A 13-Year Old... Senator Yerima Had The Temerity To Lobby The Senate Not To Delete Section 29(4)(b)"

"Consequently, the Constitution Review Committee of the Senate rightly recommended that the clause be removed from the Constitution, as citizenship has no bearing on gender. However, in his contribution to the debate on the matter on the floor of the Senate, Senator Ahmed Sani Yerima argued against the deletion of the clause on the ground that it is against the religion of Islam. The Senator led his colleagues to believe that once a girl child is married she automatically metamorphoses into an adult, to the extent that she is capable [of making] an informed decision on [the] renunciation of her citizenship.


The #ChildNotBride hashtag was launched by Nigerian civil society groups in a campaign to define a minimum for marriage in the Nigerian constitution (Image: 360nobs.com)

"Surprisingly, the Senate agreed with the misleading contribution of Senator Yerima and proceeded to vote against the recommendation that the controversial clause be deleted from the Constitution. Having married a 13-year old Egyptian child in 2010, in contravention of the Child's Rights Act [of] 2003, without any sanction, Senator Yerima had the temerity to lobby the Senate not to delete section 29(4)(b) of the Constitution, which recognizes child marriage.

"In rejecting the recommendation, the Senators [ignored] Section 42 of the Constitution, which has abolished discrimination on the basis of political opinion, place of origin, ethnicity, sex or religion. The Senate equally failed to appreciate that the Child's Right Act [of] 2003 has prescribed 18 years as the minimum age of marriage in Nigeria, in line with the provisions of the United Nations Convention on the Right of the Child, which was ratified by Nigeria in 2001..."


Posters circulated as part of the "Child Not Bride" online campaign (Image: 360nobs.com)

"All The States That Have Refused To Adopt The Child's Right Act Are In The Northern Parts Of [Nigeria, Which Are Predominantly Muslim]"

"The Child's Rights Act, which is applicable in the Federal Capital Territory, has been adopted in 24 states. Apart from Enugu in the South, all the other States that have refused to adopt the Child's Right Act are in the northern parts of the country... Section 15 of the Child's Right Act has imposed a duty on the government to provide free and compulsory education, from primary to junior secondary school, for every child. Thus, by not adopting the Child's Right Act the aforementioned States have continued to promote child marriage, child labour, illiteracy and ignorance in the country.

"Looking at Section 29(4)(b), [we find] that the judicial interpretation of that section goes beyond [the issue of] child marriage. Regrettably, the interpretation of that section is that any girl child who is married is deemed to be an adult and can therefore be presumed to have criminal liability, contractual liability, right to will, [and] capacity to sue and be sued since she is presumed to be of full age!!

"Senator Yerima and his ilk have argued, although with little understanding of Islam, that underage marriage is an acceptable practice [for] Muslims and that the law will not prevent an individual from practicing [his] religion. Generally, the Law will not interfere with religion unless it is found to be repugnant to the rule of natural justice, equity and good conscience. A comprehensive understanding of the practice of Islam reveals that it is not mandatory that girls must be married off as minors.


Senator Yerima is said to have married Mariam Maged M. Eladly, from Cairo when she was 13. This image has been circulating on the social networks (image:
urbanpostng.com)


Cartoon showing Senator Yerima marrying a child (Image: ournaira.com)

"Many Islamic scholars have therefore risen up to challenge this trend, especially in the face of the challenges confronting [girls] and women all over the world: illiteracy, poverty, violence and the prevalence of vesicovaginal fistula... and rectovaginal fistula [dangerous medical conditions usually resulting from prolonged labour]... As rightly observed by [Nigeria NGO Isa Wali Empowerment Initiative Chair] Mrs. Maryam Uwais, 'the northern part of Nigeria has continued to throw up Nigeria's poorest indices on matters relating to healthcare, nutrition, education, empowerment and productivity. Consequently, unemployment, insecurity, violence and poverty remain rife in that region. Statistics have it that 2/3 of the 102 million poor people in Nigeria live in the North. Extreme poverty in the North translates into extreme vulnerability to the effects of climate change, food [in]security and so much more. Incidentally, over half of the women in the North are married off by the age of 16 and [give birth] within the first year of marriage. 70.8% of young women aged 20-29 in the North West zone are unable to read or write due to the fact that these girls are deprived of education so early in life. Statistics also show that still births and deaths are 50% more likely in babies born to mothers younger than 18... Each day, 144 women die in childbirth in Nigeria, with the North East alone having 5 times the global rate of maternal mortality.

"Countries with a high Muslim population, such as Morocco, Tunisia, Algeria, Egypt, Somalia, Yemen and Bangladesh, have set a minimum age for marriage as 18, in the appreciation of the above-listed serious social, physical and mental health risks associated with child marriages. So for our Honourable Senator Yerima to keep insisting that this practice must remain sacrosanct is bizarre, even under the Shari'a.'[8]


From a YouTube video[9] by Nigerian-British video blogger Ikenna Azuike that mocks Yerima for fighting against justice and reason and protecting the rights of Nigeria's "over-50 males who think it's OK to marry a 13-year-old girl."

"Nigeria Has An Obligation... To Annul Customary Practices Which Justify Discrimination Against Women"

"Nigeria, like most other countries, has ratified the United Nations Convention on the Right of the Child since 2001. Therefore, Nigeria has an obligation to give effect to this Convention. Nigeria can not derogate from it by making contradictory municipal laws. It is in line with the obligations imposed on Nigeria as a member state of the United Nations that many courts have continued to annul customary practices which justify discrimination against women. Practices such as [the] 'Nnaeto' custom [of] Igbo[10] native law, which preclude a woman from giving evidence in land matters, were declared unconstitutional...[11] The 'Nrachi' [custom],[12] which enables a man to keep one of his daughters perpetually unmarried [in order] to raise children for him; and [the] 'ili-ekpe' custom, which allows only male children to inherit their fathers' property, have [likewise] been declared illegal and unconstitutional...[13] In the same manner, we state that child-marriage is inconsistent with our various laws and conventions relating to the rights and welfare of the child which have been ratified... by Nigeria.... The law will definitely interfere with and prohibit any religion and customs that are harmful to individuals and the community. Child-marriage falls into the category of such illegal practices...

"It is high time those who hide under [the cover of] religion [and try] to destroy the future of the children of the poor and disadvantaged are challenged to justify their hypocrisy and selfishness.

"It is common knowledge that there are some bills that have not been passed into law, such as the Violence Against Persons Bill, the Gender Equal Opportunity Bill, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[14] and all other Bills that have to do with the rights of girls and women. The National Assembly should pass such Bills without any further delay.

"In conclusion, retaining section 29(4b) will be unlawful and illegal, as it constitutes a derogation from Nigeria's obligation to international and regional conventions. It should also be noted that making socio-economic rights justiciable under our Law in Nigeria will go a long way to reduce the level of poverty among the less privilege[d].

"In the light of the foregoing, we call on the National Assembly and the various Houses of Assembly of the States to vote for the deletion of Section 29(4)(b) from the Constitution."

 

 

Endnotes:

[1] Sunday Trust (Nigeria), July 28, 103

[3] Nigeria's Muslims, who consist about 50% of the population, are concentrated in the north of the country.

[6] This Day Live (Nigeria), July 30, 2013. The original English has been lightly edited for clarity.

[7] The National Assembly, Nigeria’s bicameral parliament, consists of the 109-member Senate and the 360-member House of Representatives.

[8] http://omojuwa.com, July 20, 2013

[10] The Igbo people are an ethnic group of southeastern Nigeria

[14] The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.