Marriage as a concept, while generally favoured as a private enjoyment of consortium, has not been exempt from socio-political sensitivities – like sister social constructs. Heterogenous settings like Nigeria usually foster communities with varying levels of appreciation of different concepts (marriage, inclusive) and this latitude bears permissible practices that dictate the nature, sometimes even the texture, of marital unions. For instance, a culture may permit the giving of children away in marriages – even to significantly older consorts – some other cultures might take a dim view of such an arrangement. While the emergence of more developed legal instruments and generally more enhanced levels of social enlightenment have attempted to provide a generally acceptable blueprint for the concept of marriage – particularly with regard to the rights of both parties to the marriage and the elimination of ‘child marriages’, amongst others. Of the many agitations, this paper addresses the query of whether there is a legally sanctioned age of marriage in Nigeria. This paper critiques the arguments that: (a) there is a general age of marriage which is 18 years, pursuant to the Child’s Rights Act; and (b) that Section 29(4)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the constitution”) implies that a “minor” could be regarded as an adult and consequently the constitution sanctions child marriages. This critique will serve to particularly challenge our insights into seeing that the agitation for a general age of marriage may well be another crocodile tears.
ADDRESSING THE MISCONCEPTIONS
There is no general age for marriage in Nigeria and even knowledge of this has not eroded the oddity. But, the unrehearsed arguments of a few lawyers and activists alike – from the genuinely impressive to the spectacularly sordid – who confuse their passions with the true position of the law, seem to do no good to the populace and probably only serves to make the socio-religious climate more tensed than it already is. The misconceptions will be treated one after the other.
- That the constitution supports child marriages under Section 29(4)(b).
The above section stated provides summarily that any woman who is married shall be deemed to be of full age and the definition of ‘full age’ is provided for under section 29(4)(a) of the constitution to be 18 years. What this section has been interpreted to mean by some women and human rights activists is that the constitution implies that even if 10 year old girl is forced into marriage, once married, she is deemed to be of full age and as such, the marriage becomes lawful. Indeed, the Nigerian Chapter of the Federation of International Women Association, (FIDA), on the 20th of June 2013, in the Saturday edition of the Guardian Newspapers, stated that:
“for Section 29(4)(b) to continue to remain in our constitution is a clear negation of Nigeria’s commitment to different international treaties such as The Convention on the Rights of a Child, The African Charter on the Rights of a Child all of which prohibit child marriages and protecting the rights of a child… the section does not deserve to be in our constitution and should therefore be deleted.”
First point: It is easier to forgive non-lawyers for this grievous interpretation. The writer admits that the misconception is also easy to assume, even for an entire eloquence of female lawyers; many more lawyers share this sentiment. The statement of FIDA wrongly confuses the essence of section 29 in general with what it believes to be an implied sanction of child marriages. The statement further progresses backwardly as it assumes that for the purposes of marriage, 18 years is the limit. Perhaps, this second assumption was inspired by section 29(4)(a) of the constitution which provides that the term “full age” as used in the section means “18 years”. But this particular “18 years” only relates to renunciation of citizenship which is the hub and nub of section 29 in general. Renunciation entirely different from marriage and definitely, the restricted application of age 18 to cases of renunciation of citizenship cannot be stretched into marriage, especially not by virtue of section 29 of the constitution. So, if lawyers claim to be inspired by paragraph (a) of section 29(4) as justification for the argument that paragraph (b) sanctions child marriages, it would be doubly unfortunate.
Second Point: What then is the essence of a paragraph of the constitution which provides that “any woman” who is married should be deemed to be of full age? Why not delete it altogether or at least qualify the phrase “any woman”? – many have argued. The truth is, that paragraph of the constitution is simply a restatement of a universally held principle that marriage cloths the parties with a status over and above what he or she would have had as a single, unmarried party. Undeniably, marriage comes with additional sociolegal benefits and the constitution could not have been wrong to have imputed that paragraph because, for one, the same constitution has given the National Assembly the power to make laws relating to statutory marriages under item 61 of the Exclusive Legislative List in the Second Schedule to the Constitution. It is in coherence with this legislative power that the constitution NEVER provided by itself, any age for marriage (nor did it purport to make any provisions for the preconditions to a valid marriage whatsoever). What it did was limit the age of renunciation of citizenship to 18 years; renunciation obviously has no connection with marriage, section 29(4) should not even be in contention at all and, if after reading the whole of section 29, we disagree that the age of renunciation is even too limited or expansive, that is another filigree for a different argument entirely. It would be hypocritical to argue against that paragraph when the benefits of marital coverage, which the same paragraph guarantees, are simply enjoyed by all married people regardless of the age(s) at which they got married. For instance;
- A married woman can acquire Nigerian citizenship by registration if she is or has been married to a Nigerian – section 26 of the constitution. Here, no mention is made of age. Women benefit from this and it is simply universal.
- A widow or a widower does not need consent of the parents to re-marry notwithstanding that they are less than 21 years of age. This means that the fact that they have been married before at all, covers them from the requirement of consent in the next marriage even thought they are less than 21. One would ask; when then did they initially get married? A defensive activist who has erred under my preceding arguments may say “18” but common logic tells us that it could be 13. All that the law says is that if a widow or a widower, no extra consent for a new marriage. – section 18, Marriage Act.
Third Point: it may well be that the clamour for 18 years as a general marriage age stems from the belief that 18 years is agreeably the age of majority in Nigeria for all intents and purposes. Age 18 is not a magic haven and it is definitely not the general age of maturity. Under Nigerian Law, a 12 year old is legally allowed to be an apprentice. A 16 year old can be employed. A 12 year old could have criminal responsibility. That a 17 year old cannot validly vote does not make 18 years a cure-all. This writer has addressed this fully here.
Doubtless, 18 looks convenient but critically looked upon, it is not exactly different from 17, or 16 or even 15. The disparities are more arithmetic and biological than they are sociolegal especially in times like ours that have witnessed a mutative shift in the physical, mental and psychological growth of children in recent times. Precocity and quicker, sharpened experiences coupled with the ease of harnessing polysemous knowledge with technology have severely impacted on the underlying assumption that 18 years is a generally prepossessing age for marriage and that it should be abidden by. Granted, medical, physical and psychological considerations dictate that no girl should marry before puberty. Yet, people must consider sexual and social orientations, consent, ways of life, pace of sexual development, level of sophistication, and differing backgrounds before attempting to fix a uniform age for marriage in a multifarious nation like Nigeria. Before addressing the social aspects, it is apposite to consider the graver of the two misconceptions which border on law.
- That by virtue of the Child’s Rights Act, 2003, the age of Marriage in Nigeria is 18 years.
In a word of one syllable, the belief in the above misconception is not true; obviously, that is why it is a misconception. The Child’s Right Act, 2003 did well to cleanse the Augean stables and indeed, it addressed a lot of issues that confronted children rights. It is true that it pegged the age of maturity at 18, since it defines a child and a young person as anyone below 18. This notion is false because the Child’s Right Act is concerned with child welfare. Child welfare is not an item under the Exclusive or Concurrent Legislative List and the only way the National Assembly can legislate on a matter that would have catholic application to all states in Nigeria, is when the matter is in one of the lists earlier mentioned. Anything not contained in the list is a residual matter. Indeed, the National Assembly can make laws on residual matters but it will apply only to the FCT, Abuja which, by virtue of section 299 of the constitution, is considered as a state under the behest of the federal arms. So, while it is true that the Child’s Right Act provides age 18 as the maturity age, to equate it as general, is to ignore the constitutional arrangement of legislative powers and that cannot be good law. Or lawyering.
In truth, this Act has helped create some sort of enlightenment and many states have adopted the contents, thus having 18 years as the age of marriage. But, even if the entire 36 states attempt to reproduce the contents of the Child’s Rights Act which applies to the FCT, this writer argues further that there still will not be a general age of marriage. For clearer erudition, the arguments will be broken into paragraphs:
- The National Assembly is saddled with the responsibility of making enactments for “the formation, annulment, and dissolution of marriage other than a marriage under Islamic or native law” under item 61 of the Exclusive Legislative List of the constitution. In pursuance of this, the Marriage Act was promulgated. This Act is the only Act that could directly provide for matters relating to the conditions for a valid marriage but it sadly does not define the age of marriage nor does it specifically provide an age of marriage.
- Considering paragraph (a) above, a state cannot therefore purport to address the question of the age of marriage by hiding under its power to adopt the Child’s Rights Act since the latter Act is not even one that has any bearing on the question of the formation or dissolution of marriages, nor can it purport to provide the age 18 as a precondition to a valid marriage.
- The Marriage Act under section 18 provides that parties under the age 21 should seek the consent of their parents before marriage can be valid. This provision does not make age 21 the legal age for marriage and it certainly does not make age 18 either. The reason is simple: if a girl of 15 has the consent of her parents to marry, the marriage is valid. To make matters worse for the unversed, the same Marriage Act in section 33(3) provides that no marriage shall be void by reason only that the provisions of the Act were not complied with except the provisions relating to the elements that can render a marriage void.
- The marriage Act provides for factors that can void a marriage, sadly, the underage of a party is not an invalidating factor. Marrying under a false name is, marrying in a place not approved by Law is, but definitely not underage. This writer anticipates that some learned colleagues would cite Section 3(1) of the Matrimonial Causes Act which provides, in support of the Marriage Act, that a marriage is void if either of the parties is not of marriage age. However, that provision is useless because like its sister legislation, it fails to define what age is a “marriage age”.
- Lastly, let us assume that the Marriage Act defined an age for marriage. Would it apply to native law marriages? The answer is No. The constitution omits native law and Islamic law marriages from the type of marriages upon which the National Assembly can legislate. Indeed, native law and Islamic law marriages continue to relish in this latitude and there will always be a larger number of these marriages across Nigeria until God knows when?. For instance, in northern Nigeria, it is not rape if a man has sexual intercourse with his own wife forcefully provided she has attained puberty (section 282(2) of the Penal Code). The only law which attempted to constrain marriages under native law is the Age of Marriage Law, 1963 which pegged the age of marriage under native law at 16 but, unfortunately, the law only applied to states created out of the old eastern region. It has been honoured more in breach, with only one recorded conviction! This brings us to the question, why peg marriages generally at 18 years anyway?
From the ages, it has always been difficult provide a general age for marriage. At common law, the age of marriage was 12 and 14 for girls and boys respectively. In 1929, a flustered English parliament moved it to 16 for both genders under the English Age of Marriage Act until it became a matter of circumstances. Far back 1939, the Supreme Court of New Zealand has since declared the marriage of a girl below 16 to be unlawful but valid, to protect situations where marriages by minors are reasonable, hence to ratio shy party who might want to invalidate the marriage solely on the ground of the age at the time of marriage.
In the US, the concept of age in marriage was a huge problem until the US Supreme Court formulated the “mature Minor” rule to cater to circumstances where persons who are though “minors” are amenable to the incidents of marriage, in the case of Younts v St Francis Hospital & School of Nursing, 205 Kan 292,469 P.2d.
The message here is: Marriage remains a private affair and it must be largely treated as such since indeed, all persons have a right to their private lives. We deceive ourselves if we believe that a statutory provision can be courageously upheld to deter under age marriages. Customs, religion and conventions will infract, and what makes it different from other socially reprehensible constructs, is that if a girl who has attained puberty consents fully and freely to marriage can a law be said to be socially acceptable if it disallows such? How does the law regulate shotgun marriages arising from crass, illicit comingling? While this writer does not support marriages of young children who have barely formed independent opinions, this writer argues that our laws have not harmonized the question of age and while we await developments in this jurisprudence, the argument should move from the futile activist claims to amend the constitution (which is in itself a cumbrous organic legislation with a tedious amendment process) towards sensitizing against marrying off children with no consensual input from the parties. The government should cater to the socioeconomic factors that could constrain parents to consider marrying off children to reduce financial burdens. The realization that marriage is a contractual arrangement entered into by persons who believe themselves to be biologically, social and psychologically ready for it, makes it typically difficult to steamroll all marriages into an age bracket – these factors vary and the future already provides indicators that might resist any conservative nearsightedness. There is no virtue in absolutism.
Destiny Osayi Ogedegbe (Mr. Possible) is a Nigerian Lawyer who is a passionate advocate and public speaker with core interests in Disputes Resolution, Corporate/ Commercials and Entertainment Law. He can be reached at: 08075149946; firstname.lastname@example.org