Laws for the protection of the girl child against child marriage

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Background

Global human rights provisions, reiterated in regional human rights documents, prohibit early, forced and child marriages.1 Where child marriage is not expressly addressed by some of these provisions, it may be subsumed under all the forms of sexual abuse, discrimination and practices that are harmful to children2 which states are obliged to eliminate, amongst others by promulgating domestic laws.3 It is trite that recent law development in many jurisdictions in Africa and beyond point to attempts to eradicate child marriage through law.4 Global provisions for the protection of the girl child therefore hold the promise of the elimination of child marriage in Nigeria.5 Child marriage and sexual abuse are not unrelated since the definition of sexual abuse includes any form of forced, non-consensual sexual intimacy or intercourse between an adult and a much younger person.6 In the case of child marriage the much younger person is the girl who is often younger than 18 years.7 In terms of consent to the marriage union and the sexual intercourse which is ancillary to marriage, age and consent are key concepts.

They are also fundamental to the term “child marriage” in which case sexual intercourse with the girl bride is “forced” and “non-consensual” and ultimately constitutes sexual abuse.8 The increased occurrence of teenage pregnancies, early child bearing, sexually transmitted diseases, HIV/AIDS, maternal mortality and the particularly severe health condition vesico vaginal fistula (VVF) in areas where child marriage is prevalent,9 are all evidence of the early sexual intercourse and sexual abuse that take place within the institution of child marriage.10 Notwithstanding these terrible repercussions and despite international and regional prohibitions and domestic laws, the practice of child marriage persists.11 It is firmly embedded in a rigid conception of the attainment of adulthood in various cultures and societies, and is justified on the basis of arguments of a cultural and religious nature.12 Followers of the Islamic faith who support child marriage generally argue that Islamic marriages cannot adhere to the marriageable age prescribed by global standards because the same prescription does not exist in their religion.

13 They argue that in Islam readiness for marriage is not linked to chronological age but to the attainment of maturity or puberty.14 There are however a few Islamic activists who hold that child marriage is not an Islamic injunction as generally claimed,15 stating that it is a practice but not a law in Islam.16 Furthermore, they argue that there are opportunities for Islam to review its practices in the interest of the protection of vulnerable people and the development of society,17 and that marriageable age can be determined using sound judgement.18 The reference to Islamic law is very relevant to this discourse because it is proffered as an argument for the continuation and retention of the practice of child marriage, particularly in Northern Nigeria where Islam is the predominant religion.19 More importantly however, supporters of child marriage not only call on the relativism of Islam but are able to defend their position on the basis of certain secular laws and even the Constitution of Nigeria.

20 In reality, Nigeria is not ruled by Islamic law, or any other religious law for that matter,21 although Islamic law does form part of the legal system and sources of law in the country.22 This situation is not peculiar to Nigeria but is found in many plural legal systems where the practice of child marriage, with its inevitable non-consensual sexual intercourse and attending repercussions, has resisted many legal efforts to eradicate it.23 The lack of enforcement of existing laws and the persistence of the practice in Nigeria are evidence of non-prioritisation and lack of political will on the part of government.24 Forty five percent of Hausa-Fulani girls are married off by the age of fifteen,25 and marriage for girls twelve years or even younger is not unknown.26 The fact that far more teenage pregnancies occur within marriage than outside marriage in Northern Nigeria is also indicative of the predominance of child marriages in that part of the country27 and other health repercussions are also rampant in the area.28 Child marriage continues to pose a danger to the lives of girls29 and inhibit the development of the region and Nigerian society as a whole.30 While law is by definition a rule of human conduct,31 a set of regulatory orders, instruction or rule, it is also an instrument for social engineering and change.32 As a country, Nigeria has been known to use legislation to correct or prevent many social ills. One example is the recently promulgated Lagos State Properties Protection Law of 2016 which prohibits the notorious practice of property and land hijacking that is rampant in the country.

33 In Kano, Governor Ganduje also signed the Kano Contributory Health Care Agency Bill of 2016 into law.34 Not to mention the fact that Nigeria promulgated a law prohibiting same sex marriages.35 In light of the current administration’s public admission that child marriage is a problem and its declared intention to eliminate the practice, the solutions proposed by this thesis, especially the recommended draft of a specific Child marriage prohibition legislation which provides a minimum marriageable age and criminalises the practice is of particular relevance.36 The thesis explores child marriage in Nigeria in terms of the provisions of law on marriage, family law, human rights, international law, constitutional law, jurisprudence and criminal law, particularly with respect to the issues of age and consent as they relate to capacity and consent to marriage and sexual intercourse. It is ironic that although forced, non-consensual sexual intercourse is usually associated with criminal liability, it is the inevitable experience of the girl child in a child marriage. 37 The marital relationship, which is considered to be private, has moved out of the sphere of private law into public law as a result of the criminal connotations raised in recent times.38

Table of Contents :

• Declaration of Originality
• Dedication
• Acknowledgements
• Abstract
• List of abbreviations

• CHAPTER ONE
  • Introduction
  • 1.1 Background
  • 1.2 Problem statement
  • 1.3 Thesis statement
  • 1.4 Research objectives
  • 1.5 Research questions
  • 1.6 Research Methodology
  • 1.7 Limitations
  • 1.8 Literature review
    • 1.8.1 Knowledge gap and contribution
  • 1.9 Chapter outline
• CHAPTER TWO
  • Theoretical framework
  • 2.1 Introduction
  • 2.2 Feminist theory
    • 2.2.1 African feminism
  • 2.3 Rights theory
    • 2.3.1 Universalism versus cultural relativism
    • 2.3.2 The theory of state sovereignty as it relates to the rights theory
    • 2.3.3 Monism and dualism
  • 2.4 Sociolegal theory
    • 2.4.1 Legal pluralism
    • 2.4.2 Federalism
  • 2.5 Theoretical synthesis and application
  • 2.6. Postulation
  • 2.7. Nigeria
  • 2.8 Summary and conclusion
• CHAPTER THREE
  • Child marriage in context
  • 3.1 Introduction
  • 3.2 Sexual abuse in context
  • 3.3 The girl child
  • 3.4 The institution of marriage
  • 3.5 Perspective on child marriage
    • 3.5.1 Understanding child marriage from within
    • 3.5.2 Child marriage: cultural, religious, both or neither
    • 3.5.3 Establishing child marriage as sexual abuse
    • 3.5.4 The issue of capacity in child marriage
    • 3.5.5 The issue of consent
    • 3.5.6 Forced intercourse within child marriage
  • 3.6 Unions similar to child marriage in other jurisdiction
  • 3.6.1 Ukuthwala in South Africa
  • 3.6.2 Kumpibira in Malawi
  • 3.7 The legal aspect of child marriage
  • 3.8 Child marriage in Nigeria: Prevalence and causes
  • 3.9 Case study of child marriages in Nigeria and the sexual experiences of the girl brides
  • 3.10 Effects of child marriage
  • 3.11 Sociolegal solutions to the problem of child marriage
  • 3.11.1 Child marriage eradication through cultural practices and/or cultural principles
  • 3.12 Summary and conclusion
• CHAPTER FOUR
  • Domestic laws for the protection of the girl child against child marriage
  • 4.1 Introduction
  • 4.2 The Nigerian legal system
  • 4.3 English law
  • 4.3.1 Statutory law and statutory marriage
  • 4.4 Customary law
  • 4.4.1 Customary marriage
  • 4.5 Islamic law
    
  • 4.5.1 Islamic marriage
  • 4.6 Judicial precedence
  • 4.7 Judicial institutions
    • 4.7.1 The superior courts
    • 4.7.2 The inferior courts
    • 4.7.3 The police
  • 4.8 The Constitution
  • 4.9 Legislative provisions
  • 4.10 The Constitution of Nigeria and its provision agaist child marriage
  • 4.11 The Marriage Act and the Matrimonial Causes Act
  • 4.12 The Child Rights Act of
  • 4.13 Criminal provisions on child marriage
    
    • 4.13.1 The Criminal Code
    • 4.13.2 The Penal Code
  • 4.14 The Trafficking in Persons (Prohibition) Enforcement and Administration Act
  • 4.15 The Violence against Persons (Prohibition) Act
  • 4.16 Policies relevant to the practice of child marriage
  • 4.17 Institutions that handle related issues apart from the Police and courts
  • 4.17.1 The National Human Rights Commission
  • 4.17.2 The International Federation of Women Lawyers (FIDA)
  • 4.17.3 The Isa Wali Empowerment Initiative
  • 4.18 Evaluating the protection against child marriage afforded by legal provisions
    
  • 4.19 Summary and conclusion
• CHAPTER FIVE
  • International framework for the protection of the girl child against child marriage
  • 5.1 Introduction
  • 5.2 State obligations under international human rights
    • 5.2.1 The responsibility to protect, to prevent and to defend
    • 5.2.2 Responses of international communities and citizens
    • 5.3 Related multilateral instruments on child marriage
    • 5.3.1 Global and regional human rights instruments with provisions on child marriage
  • 5.3.2 General treaties on capacity and consent to marriage
  • 5.3.2.1 The African Charter on Human and People’s Rights (ACHPR)
  • 5.3.2.2 The International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International  Covenant on Civil and Political Rights (ICCPR)
  • 5.3.3 Women specific human rights charters
  • 5.3.3.1 The United Nations Convention on the Elimination of all Forms of Discrimination against Women  (CEDAW)
  • 5.3.3.2 Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa
  • 5.3.4 Children specific human rights instruments
  • 5.3.4.1 The Convention on the Rights of the Child (CRC)
  • 5.3.4.2 The African Charter on the Rights and Welfare of the Child (ACRWC)
  • 5.3.4.2.1 Challenges relating to women and children specific treaties
  • 5.3.4.3 Marriage specific instruments
  • 5.4 Deductions for international and regional human rights provisions on child marriage
  • 5.5 Implementation of treaties by member states
  • 5.6 Domestication and applicability of treaties
  • 5.7 Emerging trends with respect to state obligations under international law to protect the girl child against child marriage
  • 5.8 Assessing the response of Nigeria to its obligation under human rights instruments
  • 5.9 Summary and conclusion
• CHAPTER SIX
  • Conflict of laws, legal challenges and legal solutions to the problem of child marriage
  • 6.1 Introduction
  • 6.2 Explaining conflict of law
  • 6.3 The general conflict of law among the three legal orders with regard to age of childhood as it affects capacity to consent to marriage and sexual intercourse
    
  • 6.4 Specific situations of conflict of law
    
  • 6.4.1 Conflicts of law within the same legal system
  • 6.5 Conflicts within Islamic law
  • 6.6 Conflicts within customary law
  • 6.7 Conflicts within the Nigerian Constitution
  • 6.8 Conflicts between domestic law and international law on the issue of child marriage
  • 6.9 Other legal challenges relating to the issue of child marriage
  • 6.9.1 Lacunae, vagueness, obsolete laws and other legal issues
  • 6.9.2 Expressed acknowledgement of child marriage
  • 6.10 The effect of conflicts of law and other legal issues
  • 6.11 Recent legal developments on child marriage in other jurisdictions
  • 6.12 Legal solutions to the problem of child marriage
    • 6.12.1 Specific legislation on child marriage
    • 6.12.2 Harmonisation or unification of laws
    • 6.12.3 Legal reform
  • 6.13 Summary and conclusion
• CHAPTER SEVEN
  • Conclusion and Recommendation
  • 7.1 Introduction
    • 7.1.1 Child marriage problem
      
    • 7.1.2 Thoughts on child marriage
    • 7.1.3 Child marriage in perspective
    • 7.1.4 Domestic legal framework on child marriage
    • 7.1.5 International legal framework on child marriage
    • 7.1.6 Conflicts of law, legal issues and legal solutions
  • 7.2 Thesis recommendation: Specific actions for the eradication of child marriage
    
  • List of cases
  • List of statutes, treaties and instruments
  • Bibliography
  • Comments, Observations and Recommendations
  • Internet searches
  • Appendix

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