The Child-Bride Phenomenon

child

Constitutional, Religio-Historical and Developmental Facts

A Paper by the Research Departments of Save Nigeria Group (SNG) and the International Centre for Reconstruction and Development (ICRD) July, 2013


 

Content

  • The Issue
  • The Constitutional Backdrop
  • Prospects of a Homegrown Legislation on Child Marriage
  • Constitutional Window for a Homegrown Legislation on Child Marriage
  • Child Marriage in Islam
  • The Creed
  • The Creed on Child Marriage
  • The Aisha Precedent
  • Questioning this Precedent
  • Senator Yerima, Zamfara State, and a Legacy of Underdevelopment
  • Conclusion

 

The Issue

On Tuesday July 16 2013, the Senate of the Federal Republic of Nigeria went into a Committee of the Whole to consider and vote on the Report of the Committee on the Review of the Constitution of the Federal Republic of Nigeria (hereafter referred to as the 1999 Constitution). On the bill were 31 clauses including the six-year single tenure for president and state governors (Clause 10 amending Section 135(2)), financial autonomy for local governments (Clause 14 amending Section 165 (2)), Nigeria Police Force (Clause 21 amending Section 214), devolution of more powers to states (Clauses 25 and 26 amending Parts 1 and 2 of the Second Schedule on Legislative Powers), requirement of presidential assent to constitutional amendments (Clause 2 amending Section 9), among others. (See the constitutional amendment bill titled “A Bill For An Act To Further Alter the Provisions of the Constitution of the Federal Republic of Nigeria, 1999 and for other Matters Connected Therewith, 2013”).

Also on the bill was the proposed alteration of Section 29 on Renunciation of Citizenship. On the constitutional amendment bill, section 24(4)(b) of the 1999 Constitution was deleted on the grounds of “Child Protection/Rights”.

Section 24 of the Constitution of the Federal Republic of Nigeria reads:

“(1) Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship

shall make a declaration in the prescribed manner for the renunciation

(2) The President shall cause the declaration made under subsection (1) of this

section to be registered and upon such registration, the person who made the

declaration shall cease to be a citizen of Nigeria.

(3) The President may withhold the registration of any declaration made under

subsection (1) of this section if-

(a) the declaration is made during any war in which Nigeria is physically involved; or

(b) in his opinion, it is otherwise contrary to public policy.

(4) For the purposes of subsection (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.”

On initial voting, the two-thirds majority required to pass the proposed amendment of Section 29(4)(b) on the floor of the Senate was attained. However, as voting continued with the senators debating other clauses in the amendment bill, Senator Ahmad Yerima of Zamfara West Senatorial District returned the Senate to Section 29(4)(b), insisting that it was un-Islamic to delete it. He argued that in Islam when a woman is married, she is of age, and further based his position on the constitutional preclusion of the National assembly from making laws regarding marriage under Islamic rites. Eventually, after voting had been concluded on other matters, the Senate President, David Mark, conceded to Yerima’s call for a revisit in consideration of the “sensitivity of the matter as it concerns religion”. A second voting was called for the outcome of which fell short of the required two-thirds majority for amendment with 60 voting for the amendment and 35 voting against it. By this resolution “any woman who is married shall be deemed to be of full age” regardless of her age.

The Constitutional backdrop

In the 1999 Constitution the following provisions make direct reference to marriage or marital status:

1. Section 15(3) on political objectives of state policy

“For the purpose of promoting national integration, it shall be the duty of the State to:

(c) encourage inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic association or ties; …”

2. Section 26(2) on the registration of a person as citizen:

“(a): the provisions of this section shall apply to- any woman who is or has been married to a citizen of Nigeria;”

3. Section 29(4) on renunciation of citizenship:

“(b) any woman who is married shall be deemed to be of full age.”

4. Section 241(2) on appeals from a Federal High Court or a High Court to the Court of Appeal:

“(b)Nothing in this section shall confer any of appeal – from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; …”

4. Section 262(2) on the jurisdiction of the Sharia Court of Appeal:

“For the purpose of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide –

(a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;

(b) where all the parties to the proceeding are Muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;”

5. Section 277(2) on the jurisdiction of the Sharia Court of Appeal of a State:

“For the purposes of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide -

(a) any question of Islamic personal Law regarding a marriage concluded in accordance with that Law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;

(b) where all the parties to the proceedings are muslims, any question of Islamic personal Law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guarding of an infant;”

6. Second Schedule, Part 1, Executive Legislative List

Item 61: “The formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto.”

7. Fourth Schedule, Functions of a Local Government Council

“(i) registration of all births, deaths and marriages;”

8. Fifth Schedule, Part 1, Code of Conduct for Public Officers, General

“11. (1) Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter:

(b) at the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.”

Senator Yerima, in making his case against the deletion of Section 29(4)(2), relied upon Item 61 of the Executive Legislative List which empowers the National Assembly to make laws regarding “the formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law”.

Section 29(4)(b) does not relate directly to marriage nor does it legislate marriage to a non-adult female. Its excision from the constitution would only amount to admittance that marriage to a ‘woman’ below 18 years of age is marriage to an under-aged person and, as such, such a person cannot renounce her citizenship. Therefore, even if section 29(4)(b) were deleted from the 1999 constitution, without a law on age-limit for marriage, marriage to a woman below 18 would still not be prohibited. Nevertheless, Item 61 of the Executive Legislative List prevents the National Assembly from making any such law in so far as marriage is of civil category under “Islamic personal law” (See section 277(2) and section 244(1)). But even if such a law is passed, as is the case with the Child Rights Act 2003, the continued inclusion of section 29(4)(b) could constitute an obstacle to its implementation as it opens an additional window for proponents of child marriage to challenge the constitutionality of such law. Therein lies the gravity of section 29(4)(b) that is the current bone of contention.

Nevertheless the window provided by this contentious section to proponents of child marriage appears limited because the introduction to subsection 4 limits the application of section 29(4)(b) to the purpose of renunciation of citizenship. Once again, see sections 29 (1) and (4) below:

Subsection 1:  Any citizen of Nigeria of full age who wishes to renounce his Nigerian

citizenship shall make a declaration in the prescribed manner for the renunciation

Subsection 4: For the purposes of subsection (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.”

Perhaps it is due to this limiting clause in subsection 4 that Justice Maryam Uwais argues that the relation of section 29(4)(b) to child marriage is Senator Yerima’s personal interpretation of the provision (see Senator Yerima and Constitutional Review” by Maryam Uwais at http://saharareporters.com/article/senator-yerima-and-constitutional-review-maryam-uwais).

However, from the remarks on Clause 4 of the bill for constitutional review (A Bill for an Act to Further Alter the Provisions of the Constitution of the Federal Republic of Nigeria, 1999 and for Other Matters Connected Therewith, 2013), the rationale behind the proposed deletion of section 29(4)(b) is “Child Rights/Protection” indicating that the Senate considers this bill as relating also to child marriage contrary to Justice Maryam Uwais’ position. It is clear that the drafters of the 1999 constitution inserted section 29(4)(b) to make allowance for married under-18 females even though its application here is in relation to renunciation of citizenship thereby tacitly backing child marriage.

Prospects of a Homegrown Legislation on Child Marriage

A homegrown legislation as used here refers to a domestic enactment by the National Assembly that is not a domestication of a multilateral or bilateral treaty. Perhaps mindful of the limitation of the National Assembly to make laws relating to marriages under Islamic Law as articulated in Item 61 of the Executive Legislative List, Part 1, Second Schedule of the 1999 Constitution, the tendency is to place the burden of legislative enactment of an age-limit for marriage on experts in Islamic and Sharia law. It therefore appears that the greatest limitation to an enactment by the National Assembly for the prohibition of child marriage is Item 61, not section 29(4)(b) that is the current bone of contention. Nevertheless, it is pertinent to question this seeming helplessness of the National Assembly regarding the possibility of homegrown child-marriage legislation. Are the hands of the National Assembly really tied constitutionally on matters of child marriage even with Item 61 in force?

The existing law protecting the rights of the child is the Child Rights Act 2003. Under this act, child marriage and betrothal are prohibited in Part III, sections 21 and 22. In section 23, a person who marries a child or to whom a child is betrothed or who promotes child marriage or who betroths a child commits an offence and upon conviction is liable to a fine of N500, 000 or a five year-jail term or both. The Child Rights Act 2003 is the Nigerian domestication of the United Nations Convention on the Rights of a Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) which Nigeria signed in 1991 and 2000 respectively. By section 12 of the 1999 constitution, “no treaty between the Federation and any other country shall have the force of law except to the extent that any such treaty has been enacted into law by the National Assembly” and it “shall not be enacted unless it is ratified by a majority of all the House of Assembly in the Federation”. The National Assembly enacted the Childs Rights Act into law in 2003 and thereafter sent it to the State Assemblies. So far 24 states of the Federation have ratified it. 12 states including Enugu, Kaduna, Kano, Sokoto, Kebbi, Borno, Yobe, Gombe, Adamawa, Bauchi, Katsina and Zamfara are yet to ratify it.

It is noteworthy that Section 29(4)(a) of the 1999 Constitution is in compliance with Article 8 of the UNCRC which mandates state parties to protect the identity and nationality of the child having defined the child as any human being below the age of 18 years (in Article 1). It is also worthy of note that the UNCRC, unlike the Child Rights Act, does not expressly prohibit child marriage but mandates state parties to protect the child against sexual exploitation and sexual abuse (articles 19 and 34) and against separation from his or her parents against their will (article 9). It mandates full consideration of the best interest of the child in actions taken (Article 3) and mandates state parties to seek the development of the child (article 6).  It also protects the right of the child to express his or her own views in all matters affecting the child with the views of the child given due weight in accordance with the age and maturity of the child. Interestingly, the Convention recognizes the Kafalah system of adoption in Islamic law by which one can raise a child which is not one’s genetic child without that child becoming a true child of such adopter. Article 19(1) mandates state parties to protect the child against sexual exploitation by anyone including such adopter.

However, the ACRWC, the then Organization of African Unity (OAU)’s version of the Child Rights Convention, expressly mandates state parties to take appropriate measures to prohibit child marriage and betrothal and to enact legislation specifying 18 years as minimum age for marriage (Article 21). The ACRWC came into force in 1999 when the requisite signatures of 15 member states were obtained. Nigeria signed the ACRWC in 2000.

The following questions arise:

  1. How could the National Assembly enact the Child Rights Act 2003 containing the provisions prohibiting child marriage in spite of Item 61 preventing it from making laws relating to Islamic marriage?
  2. If a Senator Yerima had been present in the then Senate and had raised the same objection when the Child Rights Act was debated prior to its enactment in 2003, would such objection have prevented the domestication of the international treaties or would sections 21-23 of the Act have been deleted?
  3. If Item 61 does make the National Assembly redundant in relation to child marriage as asserted by Senator Yerima, does the same constitutional provision not render the Child Rights Act as passed by the National Assembly invalid ab initio?
  4. Before signing the UNCRC and the ACRWC, why did Nigeria not make reservations regarding the provisions of the treaties that expressly or tacitly prohibit child betrothal and marriage as provided for in Article 2(1)(d) of the Vienna Convention on the Law of Treaties?

By her signing and ratifying those treaties at the international level, Nigeria has an obligation under international law. Even though domestication is still in process, section 29(4)(b) of the 1999 constitution is clearly in contravention of Nigeria’s international obligation under these treaties as Article 18 of the Vienna Convention on the Law of Treaties obliges Nigeria to refrain in good faith from acts which would defeat the object and purpose of a treaty to which she has appended her signature and ratification (in this case the Child Rights Convention) while the domestication process is ongoing. The 1999 constitution came into force after Nigeria became a state party to the UNCRC. Therefore, in so far as section 29(4)(b) of the constitution actively or impliedly encourages or condones the derogation of the rights of the child which the UNCRC seeks to protect, its inclusion is in bad faith in relation to that treaty.

Nevertheless, as stated earlier and as asserted by Senator Yerima, the bigger constitutional obstacle to legislative prohibition of child marriage is Item 61 of the Executive Legislative List. Perhaps, the National Assembly succeeded in enacting the Child Rights Act in spite of these constitutional obstacles only in consideration of Nigeria’s international obligations and the pro-child-marriage legislators might have let it pass at the National Assembly only because they expected it would be hindered at the State Assemblies since it was merely an attempt to domesticate treaties (see section 12 of the 1999 constitution). Could constitutional experts therefore locate a constitutional window that empowers the National Assembly to legislate locally on this issue, which would then not necessitate assent by State Assemblies – a constitutional window that could bypass the Item 61 limitation – a constitutional window through which a bill to prohibit child marriage could be presented to and passed by the National Assembly independently of the domesticated international conventions?

Constitutional Window for a Homegrown Legislation on Child Marriage

The following constitutional provisions could provide such a window:

Section 38(1) of the 1999 Constitution provides for freedom of religion. It states,

“Every person shall be entitled to freedom of thought, conscience and religion…”

This is germane as, for instance, Senator Yerima’s claim to a right to child marriage under the grounds of its acceptability in Islam and Sharia law is in keeping with his right to freedom of religion as enshrined in Section 38. Indeed, Senator Yerima, in an interview with Al Jazeera in 2010 following the uproar over his marriage to a teenage Egyptian girl, described this right as “total and absolute”. Against the backdrop of this right protected by Section 38, Senator Yerima insists that the Child Rights Act 2003 is unconstitutional.

Nevertheless, in Section 45(1), the constitution declares:

“Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society

(a) in the interest of defence, public safety, public order, public morality or public health

(b) for the purpose of protecting the rights and freedom of other persons”

This proviso in Section 45(1)(a) that takes public health into consideration is noteworthy. Experts define public health as “the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals” (See “Public Health”, Wikipedia).

The health implications of early marriage on the girl child have been extensively documented. Medical problems associated with child marriage include versicovaginal fistula (VVF) which is a hole caused by the tearing of the tissue between the vagina and the bladder during labour leading to the constant dropping of urine; rectovaginal fistula (RVF) which is tear from the rectum to the vagina leading to stool leakage through the vagina; increased rates of stillbirths; the increase in risks associated with early labour for the born child; the increase in risk of maternal death with complications of early pregnancy and childbirth being the leading cause of death in girls between 15 and 19 years of age; the psychological and sociological effect these have on the girl child as she is ostracized in addition to being hindered from educational pursuit which then relates to the broader definition of health, viz a viz social and mental health according to the World Health Organization. Thus, child marriage clearly poses a danger on public health.

Therefore in the interest of public health, with scientific evidence that child marriage poses such gravity of medical risks, without a direct focus on marriage as it relates to Islamic rites, the National Assembly is mandated by Section 45(1)(a) of the 1999 Constitution to pass a law prohibiting child marriage. This mandate is further strengthened by Section 45(1)(b) as child marriage in multiple ways breaches the rights of the girl child including her right to life as enshrined in section 33 of the 1999 Constitution.  Constitutional and legislative experts must explore the possibility of effectively bypassing Item 61 on these grounds in relation to child marriage. Section 1(3), which subjects any other law to the constitution, and Section 10, which prohibits state religion, could provide additional constitutional support in that regard. Hence, the National Assembly may have no alibi upon which to refrain from enacting a homegrown legislation to prohibit child marriage.

Nevertheless, this is not disregarding the nuances of the matter at hand particularly the cultural and religious implications of any such legislative move which could prove very sensitive as admitted by the Senate president. Consequently, it is imperative to examine the religious and cultural elements in the child marriage controversy.

Child Marriage in Islam

Proponents of child marriage hinge their arguments on “Islamic rites”.  In their interpretation of Islamic jurisprudence child marriage is allowed in Islam and protected under Islamic law. To these persons, putting the age limit for marriage at 18 contravenes Islamic law. This is the crux of Senator Yerima’s argument in favour of child marriage.

Some of the outrage against this notion particularly on social media has been directed not only at the senator nor just at the practice itself but also at the religion that seems to condone and even promote such a barbaric act. This is particularly insensitive, as it could constitute a trigger-point for inter-religious conflict. It is presumptuous and culturally inappropriate for non-Muslims or persons who have never practiced Islam or who do not understand the Islamic faith nor have done any study in that regard to attack the faith while pursuing the rights of the girl child.

Indeed, considering the variegated nature of the Nigerian socio-cultural landscape, if nationalism and patriotism are goals to be pursued, it may be all the more necessary for non-adherents of a certain faith, without diluting the purity of their own faith, to, at least, understand the view point of adherents of the other faith and, if possible, the tenets of that faith particularly in relation to the common socio-economic and political landscape in which citizens coexist as Nigerians. This would foster the much-needed tolerance, and where necessary, would provide an informed standpoint to deal with social ills perpetuated in the guise of religion. It is noteworthy that Yerima in his interview with Al Jazeera said that if he were found in Islamic jurisprudence to have erred in his marriage to a fourteen year-old, he would reverse his position. It is therefore necessary to examine the Islamic creed on the matter of child marriage.

The Creed

Islam is a religion founded by Prophet Mohammed in 622 CE, the year of the Hijra, that is, the emigration from Mecca to Medina (622 CE = 1AH in Islamic Calendar, where AH is Anno Hejirae, the year of the Hijra). It was founded on revelations received in 610 CE which are articulated in the Quran, the sacred book of Islam. Hence, the content of the Quran is considered by Muslims to be the verbatim words of God. The articles of the Islamic faith are also contained in the Sunnah which prescribes the Islamic way of life as practiced and taught by Prophet Mohammed as well as interpretations of the Quran.

The Sunnah of Prophet Mohammed contains his specific words, practices, habits and silent approvals. Sunnah is used synonymously with Hadith which is a saying, an act or a tacit approval or disapproval attributed accurately or inaccurately to Prophet Mohammed and is considered to be weighty in Islamic jurisprudence. They are recorded oral traditions regarding the early history of Islam. During the 8th and 9th centuries Islamic scholars gathered collections of the Hadith.  The Hadith collections are classified as sahih (authentic), hasan (good) or da’if (weak). This is because Islamic scholars consider some of the content contestable. The strength of a Hadith is determined by the number of primary or secondary sources that corroborate it.

Different sets of Hadith collections are relied upon by the various branches of Islam including the Sunni and the Shia. The distinctions of these denominations are mainly based on the question of the first of the four Caliphs and successor to Prophet Mohammed as between Abu Bakr as-Siddiq (Mohammed’s father in-law) and Ali ibn Abi Talib (Mohammed’s son in-law and cousin). The Sunnis believe that Abu Bakr was the first caliph and that succession is by election while the Shias believe that Ali was the first caliph and that succession is by divine appointment. The majority of Nigerian Muslims (60 million) is Sunni while 4-10 million (predominantly in Kano and Sokoto States) are Shia. Shia Islam was non-existent in Nigeria until a syncretic blend of Shia and Sunni Islam was introduced in the 1980s by Ibrahim Zakzaky who gained a following among those who were discontent with the political and religious establishment. It was described as Shia because of its similarity with the traditions of Ayatollah Khomeini of Iran. Indeed, Iran is a stronghold of Shia Islam.

It is noteworthy that child marriage, apart from being encouraged in interpretations of Sharia law has been a tradition in the Arab culture. This is important in understanding the controversial endorsement of the practice among Muslims. It is necessary at this point to state that a growing number of Islamic scholars strongly oppose the practice and argue that it indeed contravenes Islam.

The Creed on Child Marriage

Muslims who oppose child marriage argue that the Quran distinguishes between the child and the person who has come of age. They assert that the Quran alludes to the fact that there is such a stage in one’s life at which one becomes marriageable and comes of age, that its language distinguishes between the girl as a child and the girl as a young lady (fataat) and that the girl child must reach ashuddah (full strength and growth) and adulthood. While it is the responsibility of Islamic scholars to clarify the creed especially in response to Senator Yerima’s challenge, a look at the historical facts is necessary as Yerima, like many other proponents, justify their position by Prophet Mohammed’s marriage to a supposed nine year old, Hazrat Aisha.

The Aisha Precedent

Traditional reporting of the marriage of Prophet Mohammed and Aisha put her age at nine and, because an action attributed to Prophet Mohammed is seen as permissible in Islam, this marriage is used to justify the practice of child marriage.

Aisha was Prophet Mohammed’s only virgin wife, and, as history tells it, his closest. All of his other wives, about 12 in number, were either divorced or widows. Aisha was the daughter of Abu Bakr who succeeded Mohammed as caliph. She was first betrothed to Jubayr ibn Mut’im, a pagan whose father was friendly to Muslims. She was suggested to Prophet Mohammed by Khalaw bint Hakim, a female companion of Mohammed and an early convert to Islam.

Aisha is said to have been the 4th biggest contributor to the Hadith because of her closeness to Mohammed and her consequent deep understanding of many issues relating to the religion. She is said to have been deeply scholarly and wise. Given that Prophet Mohammed died ten years after his marriage to Aisha, traditional sources therefore imply that she lived with him between ages 9 and 19.

Questioning this “Precedent”

A growing number of students of Islamic and Arabic history have questioned the age-nine narrative of Aisha’s marriage using certain historical assertions. (For instances of this position, see http://www.muslim.org/islam/aisha-age.htm and http://www.discoveringislam.org/aisha_age.htm). Some of their arguments are presented below:

  1. The source of Aisha’s age at the time of marriage is the Hadith, not the Quran, hence some Muslims insist that the age-nine narrative is flawed as the Hadith that provides the information belongs to the da’if or weak category. It was presented only by Hisham ibn ‘Urwah on the authority of his father. As earlier stated, the strength of a Hadith is based on how many other primary or secondary sources can attest to its authenticity. Scholars insist that an event as well known as this should logically have been reported by more than one, two or three people.
  2. More so, scholars also find it strange that Hisham did not report this throughout his stay in Medina where he spent 70 years but only after he relocated to Iraq in the later part of his life. Hence, his narratives on the matter of Aisha’s age at the time of marriage to Prophet Mohammed were reported by narrators in Iraq. None of his pupils in Medina, no matter how prominent, reported this. Malik ibn Anas, a prominent pupil of Hisham’s in Medina objected to this narrative of Hisham’s reported by Iraqi narrators.
  3. A book on the narrators of the traditions of Prophet Mohammed reveal that Hisham’s memory suffered badly at old age (which was when he was in Iraq) implying that he must have relayed incorrect information.
  4. Historical reports have it that Aisha accompanied Muslims in the Battle of Badr and Uhud which took place in 3AH according to Muslim calendar. No one who was under the age of 15 was allowed to take part in that battle. If this was so for men, it would be much more for women who were only allowed on the battlefield to help the men not to be a burden to them. History places Aisha’s marriage to Prophet Mohammed at 1AH or 2AH. She could not have been up to 15 one or two years after her marriage to Prophet Mohammed if she were nine when they got married.
  5. Scholars, computing from historical compilations the age of Aisha’s elder sister, Asma, who was ten years older than Aisha, say Asma was 28 in 1AH meaning Aisha was 18 or 19 at the time of marriage and must have been betrothed at 15.
  6. Aisha herself is reported to have said that she was a jariyah (young and playful girl) when the 54th chapter of the Quran was revealed and this was about 8 years before her marriage to Prophet Mohammed. The use of the term jariyah as against sibyah (infant) is noteworthy because if she married at nine she would have been a baby (sibyah) when the 54th Chapter was revealed not a jariyah (young lady).
  7. Finally, a historical report attributed to Ahmad ibn Hanbal, a prominent Islamic scholar and founder of the Hanibali school of Islamic jurisprudence states that when Khalaw bint Hakim suggested to Prophet Mohammed to remarry after the death of Khadijah, she adviced him to marry either a bikr (the Arabic word for an adult with no sexual experience) or a thayyib (a woman who had been married before). When Prophet Mohammed asked which bikr she had in mind, she mentioned Aisha who, at that time was already betrothed to Jubayr, indicating that she was of marriageable age even though a virgin.

Therefore, scholars, rejecting the Hisham narrative that puts Aisha at age nine at the time of marriage to Prophet Mohammed, say she was between 18 and 21 when she got married. Though conservatives debate these assertions, they could imply that the exposure of many girl-children to child marriage and the attendant social and health dangers might have been the result of a tragic historical misreporting.

In combating this social ill, the state, though constitutionally separate from religion, in its task of social engineering, must invest resources in relevant research into such religious, historical and cultural matters that impact on the socio-economic destiny of its citizens and must facilitate the creative deployment of such facts in national orientation. In the matter of child marriage, in addition to engaging Islamic scholars, creative communication channels that resonate with northern Nigeria where this practice is given religious endorsement must be employed to disseminate this progressive narrative and to debunk the traditional version that enslaves millions of girl-children. To this end film, music and media must be harnessed.

Senator Yerima, Zamfara State and a Legacy of Underdevelopment

It is hoped that this scorecard of Senator Ahmad Yerima in public office will turn the attention of proponents of child marriage to the weightier matters of governance.

Ahmad Yerima was governor of Zamfara State between 1999 and 2007 and thereafter became Senator representing Zamfara West Senatorial District. In 2001, he became the first governor to expand the scope of Sharia law beyond civil matters. At that time, even some Muslim scholars argued that it would be unrealistic to implement Sharia in such a poor and illiterate state where corruption is rife among public officials. At the end of his tenure as governor, the state’s poverty and illiteracy rate remained high with dismal state of infrastructural and human development.

According to the National Bureau of statistics (NBS), Zamfara State is one of the ten states in the country with above 70% poverty rate. By NBS figures, 70.8 percent of the population in Zamfara lives below the poverty line. Other sources place it at over 90%. Zamfara has the highest unemployment rate in the country with 42.6% unemployment rate.

2010 literacy rate statistics by NBS showed that 66.7% of the male population in Zamfara was illiterate while 81.2% of adult females was illiterate. Of the Senatorial Districts in Zamfara State, Zamfara West, which Ahmad Yerima represents as senator had the worst female literacy rate with 87% illiterate women. This placed Zamfara West as the 6th worst Senatorial District in terms of female literacy out of 109 Senatorial Districts in Nigeria in 2010.

Zamfara State, along with Jigawa, Katsina and Yobe States, has one of the worst maternal mortality rates in the country with about 7000 women dying annually from childbirth.

Recent Millenium Developmment Goals statistics places Zamfara State in sixth position on the list of states by infant mortality rates at 81 per 1000 births as well as sixth in under-five mortality rate at 129 deaths per 1000. At 3.8%, Zamfara State has the least percentage of doctors in the country giving antenatal care to women. It has the 11th highest adolescent birth rates with 100 adolescent births per 1000 women. In terms of access to family planning, Zamfara has the 7th worst access rate with only 1.1% having their need for family planning met. On HIV/AIDS awareness, Zamfara had the worst result in terms of the percentage of the population who even know about the existence of the disease. 83.7% of children of primary school age in Zamfara state are not enrolled in school making it 6th worst in this regard ahead of 5 other northern states.

Given the above records, Senator Yerima may have left a legacy of underdevelopment in Zamfara State. Reversing this situation will prove to be a more noble cause as a distinguished Senator of the Federal Republic of Nigeria than the defence of child marriage. Such an aggressive legislative drive for development would mark a reversal of the distinguished Senator’s scorecard as it appears from available Hansard of the Senate, which contains minutes taken verbatim during senate sittings, that, aside occasional substantive participation in debates, Senator Yerima, known officially as Senator Ahmad Rufa’i Sani, has made only minimal contributions to debates on the floor of the senate since the resumption of the Seventh Senate in May 2011 with over 90% of his recorded contributions being merely to second a motion for adjournment, to second a motion for the senate to discuss a matter on another day, to second a motion for a bill to be stood down or for it to progress to the committee stage after other Senators have debated it.  For a senator representing a district that suffers such socio-economic setback as presented in the above statistics, legislative office should be used for the pursuit of an aggressive developmental agenda rather than for the promotion of causes that will only perpetuate underdevelopment.

Conclusion

While the controversial Section 29(4)(b) tacitly endorses child marriage, it appears that the greatest constitutional obstacle to the prohibition of child marriage is Item 61 of Part 1 of the Second Schedule of the 1999 Constitution which precludes the Senate from legislating on the formation of marriages under Islamic law. The Child Rights Act, being the domestication of treaties, can only be enforced when enacted by all the State Houses of Assembly. This is being hampered by 12 states mostly of the north. However, Section 45(1) could provide a constitutional window by which the National Assembly may prohibit child marriage on public health grounds; this must be explored by constitutional experts. In view of the religious and cultural sensitivity of the issue, orientation and re-education is required. To this end, the body of knowledge in Islamic jurisprudence that presents Islam as unsupportive of child marriage will prove useful. Therefore, government must support relevant cultural and historical research and deploy creative strategies towards cultural reorientation. Senator Yerima and other proponents of child marriage need to redirect their energies to weightier matters of governance to stem the tide of underdevelopment in Zamfara State, northern Nigeria generally and Nigeria as a whole.

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