#ChildNotBride – Who Is Responsible? State, Parents or Both?

The recent Constitutional Review carried out by the Nigerian Senate caused agitation and uproar, when the Senate resolved to retain section 29(4)(b) of the Constitution of the Federal Republic of Nigeria (CFRN). Taken literally, this provision of the CFRN provides that for the purpose of renunciation of Nigerian citizenship, any woman is deemed to be of full age. After this resolution, Nigerians home and abroad began a campaign- #ChildNotBride- on the premise that the retention of this provision of the CFRN somehow endorses child marriage. I have written a seminal piece on this misguided premise, so I would spare you the details. It suffices to say that section 29(4)(b) CFRN does not endorse child marriage- if this provision is deleted, it still does not affect the fact that under Customary or Islamic Law, child marriage is not prohibited. It is shameful that while our neighbours like Ghana are planning to increase d marriageable age from 21 to 23 years, Nigeria is debating whether or not child marriage should be allowed. Simpliciter, child marriage is repulsive, reprehensible, appalling, abhorrent, etc. Sorry to disappoint those that signed the online petition to the United Nations (UN) which, in my opinion, is for the right cause, but was rather hasty and misguided. Unfortunately, it will not be considered by the UN because it seeks intervention in matters of a purely domestic concern and Article 2(7) of the UN Charter clearly states that the UN shall not intervene in such matters- it is an affirmation of the doctrine of non-intervention in international law, which is a corollary of the principle of sovereignty. If the UN had such competence, why has it not intervened in Saudi Arabia? Be that as it may, as an objective lawyer, this article is not about the condemnation of child marriage; it is about who should be held responsible? Who should the #ChildNotBride campaign be targeted at- National/State Houses of Assembly or the parents of the victims of child marriage? First, the CFRN safeguards a person’s right to religious freedom, which is also guaranteed by international instruments like Article 18, Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and Article 8, African Charter on Human and Peoples’ Rights. Nonetheless, this right to religious freedom is not absolute; it is subject to restrictions “in the interest of … public order, public morality or public health or for the purpose of protecting the rights and freedom or other persons” (s.45 CFRN). Further, Item 61 on the Exclusive Legislative List (ELL) in the CFRN prohibits the National Assembly (NASS) from legislating on matters involving marriages contracted under Islamic or Customary Law. As such, NASS may only restrict a person’s right to religious freedom in the context of legislating on a minimum marriageable age, if s.45 CFRN is satisfied. Second, if NASS is able to satisfy s.45 CFRN on grounds of public morality or public health or for the purpose of protecting the rights and freedom of children (as protected in the Child Rights Act (CRA)), before such legislation can be passed, Item 61 on the ELL has to be amended in order for NASS to have legislative competence over marriages contracted under Islamic or Customary Law. The procedure for amendment is rigorous (see s.9 CFRN) and considering that the main target of such law is Islamic marriages, it is debatable whether the Northern State Houses of Assembly would vote in favour of such amendment.