Daily Law Tips (Tip 680) by Onyekachi Umah, Esq., LL.M, ACIArb(UK).

Introduction:
Marriage is for two consenting adults. Definition of adult has not been nationally defined by law, however, a child is a person that is below 18 years old. Nigeria has three (3) forms of legally recognised marriages; English/Statutory Marriage, Customary Marriage and then Islamic/Sharia Marriage. All the forms of marriages seem to allow child marriage. Child marriage is forced marriage, since a child lacks the power to agree to a marriage.

Unfortunately, the protections for a child under the Child’s Right Act of 2003 is not yet enforceable across all parts of Nigeria. Many states in the Northern part of Nigeria are yet to approve or enact the Child’s Right Act. Forced marriage is not limited to children, there are cases where even adults are forced into marriages.

This work reveals the new approach under the Violence Against Persons (Prohibition) Act/Laws which criminalize forced marriage in more states across Nigeria. It focuses on the Nature of Marriage, Marriage and Consent in Nigeria, Lawful Bypass to Consent, Forced Marriage in Nigeria, Forced Marriage and Human Rights, Offence and Punishment for Forced Marriage and then ends with a recommendation.

Marriage in Nigeria:
In Nigeria, marriage is a union of the opposite sex, it could be monogamous (one man and one woman) or polygamous (one man and more than two wives). Statutory marriage (marriage according to the federal law on marriage) is monogamous. Customary marriage (marriage according to native law and custom) is polygamous. Islamic marriage (marriage according to Islamic law and the Quran) is polygamous. All the three (3) forms of marriages are recognized and valid in Nigeria. By the way, same sex marriage is an offence in all parts of Nigeria.

Marriage and Consent in Nigeria:
If marriage is a union (agreement/contract) between a man and a woman, then it means that there must be a clear understanding and consent between the parties. Can there be an agreement /consent where parties do not agree?

Consent of all parties to a marriage is the bedrock of marriages and is required in all forms/types/classes of marriages in Nigeria. Since consent is important in any marriage, it is a requirement for a valid marriage in any of the forms of marriages in Nigeria. There cannot be a valid marriage, where there is no consent.

Lawful Bypass to Consent:
Consent is key to any agreement, including marriage. Children (minors/infants) are incapable of making agreements and contracting with any person. Minors can only contract in very rare circumstances, like in cases of survival, where there is need to purchase food, shelter and basic needs of man. Obviously, marriage is not a basic need of any human being. So, there is no room for a child to consent to marriage.

Above all, the welfare of a child must at all times be considered by the parents and guardians of the child. The parents and guardians of a child are the minds, hearts and conscience of the child. They are the decisions makers of the child and must always make decisions in the best interest of the child. At no time can child marriage be in the best interest of a child, rather it is always a selfish convenient maltreatment of a child, born out of greed, laziness, fear or desperation. No excuse is good enough for a child marriage, not even poverty.

The lawful and statutory gaps that seem to permit, justify and promote child marriage in Nigeria will be considered under two heading; “Under the English Marriage” and Under the Customary Marriage and Islamic Marriage”.

a. Under the English Marriage:
There is a shameful lawful bypass to the requirement of consent under the federal law in Nigeria. The Marriage Act is a federal law that regulates the celebration and commencement of statutory marriages in Nigeria. Surprisingly, the 1914 legislation allows a minor to be married where the minor is a widow or a widower ( a person already married but that has lost his/her spouse to death). It also allows a minor to be married, where the parent or parents of the minor gives a written consent. The age limit under the federal law is twenty-one (21) years old.

Since a child is fixed as a person that is less than eighteen (18) years old, it means that a person of 21 years old is not a child in states with the Child’s Right Laws. One wonders why the Marriage Act will allow an adult to be married even against his/her wish, so far as there is a written consent of a parent/parents of the adult.

Also, the Marriage Act allows a widow or widower to be married against her/his wish, so far as there is a written consent of a parent/parents of the minor. Since the form of a previous marriage of a widow/widower is not specified in the law, it means that a child that was married as a minor (like, 12 years old) under customary or Islamic marriage and later became a widow still as a minor (like at the age of 15 years old), can be legally married under the Marriage Act. This is shameful.

b. Under the Customary Marriage and Islamic Marriage:
Arguably, an interpretation of the constitution of Nigeria, seems to allow Islamic law and Customary law to coordinate and run their own marriage affairs independent of other laws; including the Child’s Right Act and the Violence Against Persons (Prohibition) Act. This seems to be the little window through which some scholars argue that child marriage and forced marriage is constitutional and allowable under customary law and Islamic law. After all, whatever a law does not condemn is never condemned in law.

The Constitution of Nigeria expressly stated that the Federal Government of Nigeria has no powers to make federal laws or mingle with issues relating to the formation, annulment or dissolution of marriages made under a Customary law or Islamic law. Such powers are rather rested on the state governments across Nigeria.

Quoting Braimah, “When a person marries a child under Islamic law in Northern Nigeria and is consequently in contravention of the Child Rights Act, such a person cannot be prosecuted because the federal government would be interfering with an Islamic marriage and would be in violation of Part 1 Section 61 of the 1999 Constitution. Therefore, in relation to child marriage, Part 1 Section 61 of the 1999 Constitution renders the Child Rights Act useless, as the 1999 Constitution serves as the supreme law of the land in Nigeria, overriding all other legislation.”

This is the statutory protection that promoters and beneficiaries of child marriage enjoy in Nigeria, across States where there are no Child’s Right Laws. Little wonder, why many states in the Northern Nigeria, has refused to adopt and enact the Child’s Right Act since 2003 even as child marriages increase.

Since 2003, only 25 states in Nigeria out of 36 states, have adopted the Child’s Right Act while 11 states have rejected the Child’s Right Act. The 11 states that have refused the adoption of the Child’s Right Act are Adamawa, Bauchi, Borno, Gombe, Jigawa, Kano, Katsina, Kebbi, Sokoto, Yobe and Zamfara states.

Forced Marriage in Nigeria:
Child marriage is forced marriage. Aside child marriage, forced marriage is also experienced by adults. There are cases of adults being forced, deceived or cajoled into marriages against their wishes, under the Customary and Islamic laws. Also, it is not impossible to find people that are forced into marriages under the English law, such persons may have granted their consents under duress.

Forced Marriage and Human Rights:
Consent obtained by force or deceit is not a consent. Rather it is a clear violation of fundamental human rights of the victim. Consequently, the victim and his/her supporters can seek legal remedies in court. Where there is a forced marriage there is also a violation of the following fundamental human rights; the Right to Dignity of Human Person, the Right to Personal Liberty, the Right to Private and Family Life and the Right to Freedom of Thought, Conscience and Religion.

Also, forced marriage often leads to further violation of other fundamental human rights, including; the Right to Life, the Right to Fair Hearing, the Right to Freedom of Expression and the Press, the Rights to Peaceful Assembly and Association, the Right to Freedom of Movement, the Right to Freedom from Discrimination and then, the Right to Acquire and Own Immovable Property anywhere in Nigeria.

Where there is a breach of any fundamental human right, the victim or his/her supporters can drag the violator to court. The court must be either a State High Court or the Federal High Court. It cannot be a Magistrate Court, Area Court, Sharia Court or Customary Court. The process of seeking for justice, for the violation of human right is very fast in most courts. It is about the fastest business you can do in a court in Nigeria, aside obtaining motions, affidavits and stamping documents.

Where there is a violation of fundamental human right, the court can award payment of huge monetary compensation against the violator. Read my earlier work on remedies/compensations for violation of human rights via this link; https://learnnigerianlaws.com/endsarsnow-compensation-for-police-brutality/

Offence of Forced Marriage:
Forced Marriage, aside being a violation of fundamental human rights of the victim, it is also a criminal offence. In 2015, the National Assembly (Nigeria’s federal legislature) made the Violence Against Persons (Prohibition) Act 2015 to discourage violence against human beings in the Federal Capital Territory (FCT) and to punish offenders. The said federal law for the FCT, listed forced marriage as a harmful traditional practice and declared such harmful traditional practice as unlawful and criminal.

The Violence Against Persons (Prohibition) Act 2015 is popularly known as the VAPP ACT, it is operational in the Federal Capital Territory (FCT) and many states across Nigeria, have adopted and enacted similar laws. So, there are now the Violence Against Persons (Prohibition) Laws in many states across Nigeria.

Punishment for Forced Marriage:
Since forced marriage is a crime, it has a punishment. Forced marriage is punishable with maximum of 2 years imprisonment or fine of N500,000.00 or both. Punishments for attempting such offence or assisting and aiding an offender is imprisonment for 1 year and or fine of #200,000.00.

Recommendation and Conclusion:
Above all, marriage does not suspend or restrict any fundamental human right in Nigeria. Married people are human beings and have human rights. Marriage does not make cases of violation of human rights to be mere civil (family/private) cases. Law enforcement agents can make necessary arrests, investigate and prosecute suspected offenders. Also, offenders can be taken to court for enforcement of fundamental human rights.

Kindly note that the law creating the above offence is operational in Federal Capital Territory, Abuja. Similar laws are now operational in Oyo, Ogun, Lagos, Osun, Ekiti, Edo, Anambra, Enugu, Ebonyi, Benue, Cross River, Kaduna, FCT, and Plateau states. Soon, more States will enact similar laws as we encourage states to do so and condemn violence.

The punishments stated in the VAPP Act should be made to be minimum punishments instead of being maximum punishments to avoid the release of offenders with mere slaps on wrists. Click this to read my earlier works on women rights in Nigeria <https://learnnigerianlaws.com/?s=women+rights>.

My authorities, are:

1. Sections 40, 42 (1), 45 and 46 of the Constitution of Federal Republic of Nigeria, 1999.
2. Section 18, 19 and 20 of the Marriage Act, 1914.
3. Sections 13, 47 and 48 of the Violence Against Persons (Prohibition) Act, 2015 and similar laws across states in Nigeria.
4. The judgment of the Supreme Court of Nigeria (that consent is need in all forms of marriage, whether monogamous or polygamous) in the case of Osamwonyi v. Osamwonyi (1972) LPELR-2789(SC).
5. Enyinna Nwauche, ‘Child marriage in Nigeria: (Il)legal and (un)constitutional?’ [2015] 15(2) African Human Rights Law Journal <http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200010&lng=en&tlng=en#back> accessed 20 October 2020.
6. TS Braimah, “Child marriage in Northern Nigeria: Section 61 of Part 1 of the 1999 Constitution and the protection of children against child marriage” (2014) 14 (474) African Human Rights Law journal 474 <http://www.scielo.org.za/scielo.php?script=sci_nlinks&ref=212755&pid=S1996-2096201500020001000001&lng=en > accessed 20 October 2020.
7. Deji Elumoye, “Adamawa, Bauchi, Gombe, 8 Other States Reject Child Rights Act, Says Minister” (ThisDay Newspaper, 15 October 2020) <https://www.thisdaylive.com/index.php/2020/10/15/adamawa-bauchi-gombe-8-other-states-reject-child-rights-act-says-minister/ > accessed 20 October 2020.
8. Femi Bolaji, “Urges Adamawa, Bauchi, Gombe to domesticate Child Rights Act” (Vanguard Newspaper, 16 June 2020) <https://www.vanguardngr.com/2020/06/unicef-urges-adamawa-bauchi-gombe-to-domesticate-child-rights-act/ > accessed 20 October 2020.
9. NAN, “Child rape ‘becoming alarming’ in Gombe – Human Rights Commission” (Premium Times, 19 October 2019) <https://www.premiumtimesng.com/regional/nnorth-east/358146-child-rape-becoming-alarming-in-gombe-human-rights-commission.html > accessed 20 October 2020.
10. Segun Awofadeji, “Non – domestication of The Child Rights Act By 11 Northern States Worries UNICEF” (ThisDay Newspaper, 24 November 2020) <https://www.thisdaylive.com/index.php/2019/11/24/non-domestication-of-the-child-rights-act-by-11-northern-states-worries-unicef/ > accessed 20 October 2020.
11. “States That Have Passed the Child’s Right Law In Nigeria” (PartnersGlobal) <https://www.partnersnigeria.org/childs-rights-law-tracker/> accessed 20 October 2020.
12. Onyekachi Umah, “Female Genital Mutilation/Cutting/Elongation, Breasts Ironing And Forced Marriage Are Now Criminal Offences In Nigeria” (Daily Law Tips [443]) <https://learnnigerianlaws.com/female-genital-mutilation-cutting-elongation-breasts-ironing-and-forced-marriage-are-now-criminal-offences-in-nigeria-daily-law-tips-tip-443-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 12 October 2020.
13. Onyekachi Umah, “Harmful Widowhood Practices (Traditions) Are Illegal In Nigeria” (Daily Law Tips [Tip 589]) <https://learnnigerianlaws.com/harmful-widowhood-practices-traditions-are-illegal-in-nigeria-daily-law-tips-tip-589-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 12 October 2020.
14. Onyekachi Umah, “Forceful Isolation/Separation Of Family Members/Friends Is Now An Offence In Nigeria” (Daily Law Tips [356]) <https://learnnigerianlaws.com/forceful-isolation-separation-of-family-members-friends-is-now-an-offence-in-nigeria-daily-law-tips-tip-356-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 12 October 2020.
15. “Approval For Marriage Of Female Officers/Staff Is Unconstitutional and Discriminatory”, Onyekachi Umah (Daily Law Tips [Tips 660]) <https://learnnigerianlaws.com/approval-for-marriage-of-female-officers-staff-is-unconstitutional-and-discriminatory/ > accessed 2 October 2020..
16. “Nigerian Women Say ‘No’ To Gender-Based Violence” Leone Usigbe (United Nations) <https://www.un.org/africarenewal/news/nigerian-women-say-‘no’-gender-based-violence > accessed 2 October 2020
17. “Human Rights Situation in Nigeria and Women’s Rights Concerns in Mauritania: Submission to the African Commission on Human and Peoples’ Rights” (Human Rights Watch, 27 April 2018) <https://www.hrw.org/news/2018/04/27/human-rights-situation-nigeria-and-womens-rights-concerns-mauritania > accessed 2 October 2020.
18. “Abolished Anti-Women Custom of Onitsha People of Anambra State, Nigeria” Onyekachi Umah (Daily Law Tips [Tips 522]) <https://learnnigerianlaws.com/abolished-anti-women-custom-of-onitsha-people-of-anambra-state-nigeria-daily-law-tips-tip-522-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 2 October 2020
19. “Citizen By Marriage Is Discriminatory and Against Nigerian Women”, Onyekachi Umah (Daily Law Tips [Tips 653]) <https://learnnigerianlaws.com/citizen-by-marriage-is-discriminatory-and-against-nigerian-women/ > accessed 2 October 2020.
20. “Abolished Anti-Women Custom of Yoruba People of Nigeria”, Onyekachi Umah (Daily Law Tips [Tips 653]) <https://learnnigerianlaws.com/abolished-anti-women-custom-of-yoruba-people-of-nigeria-daily-law-tips-tip-523-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 2 October 2020.
21. “It’s Not Freedom For Women in Nigeria as 23 States Hold Back Signing on the Violence Against Persons (Prohibition) Act”, Aderemi Ojekunle (Dataphyte, 15 June 2020) <https://www.dataphyte.com/gender/its-not-freedom-for-women-in-nigeria-as-23-states-hold-back-signing-on-the-violence-against-persons-prohibition-act/ > accessed 2 October 2020.
22. “Can a Married Woman Inherit Her Parents’ Property?”, Onyekachi Umah (Daily Law Tips [Tips 535]) <https://learnnigerianlaws.com/can-a-married-woman-inherit-her-parents-property-daily-law-tips-tip-535-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 2 October 2020.

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