Legal writers as well as various legislations have been in the ring for ages exchanging punches over this very controversial topic- marriageable age in Nigeria. These legislations provide different ages which throw the citizenry into perpetual confusion. Let us take a shallow look at the various municipal legislations regulating age of marriage in Nigeria.
Section 29(4)(a) & (b) CFRN 1999 (as amended) provides as follows:
“ (4) For the purposes of this subsection (1) of this section –
“full age” means the age of eighteen years and above;
Any woman who is married shall be deemed to be of full age.”
The bone of contention in the above provision is the definition ascribed to the phrase “full age” under subsection (4)(b) which provides that any married woman is deemed to be of full age. Proponents of this provision are of the view that the retention of the aforementioned subsection implies that the age of marriage can be thirteen or even less. Since section 29(4) recognises that any married woman shall be deemed of “full age”, it implies that if a girl marries at any age below 18, she is deemed to be an adult. In as much as a literal interpretation of Section 29 would reveal that the section deals solely with the mode prescribed by the constitution for the renunciation of citizenship, the intent of the lawmaker regarding definition of age limit for marriage is not hidden. But then this provision of the Constitution is not helpful since it merely vests married women with “full age” honour, and did not expressly and unequivocally provide for age limit for marriage in Nigeria.
The Marriage Act of 1914:
The Marriage Act does not lay down any minimum age for marriage. It merely provides that where either of the parties to a statutory marriage, not being a widow or widower, is under twenty-one years of age, he or she must obtain the written consent of the father, mother or guardian, state governor, High Court Judge as the case may be- Section 18-20, Marriage Act 1914. The combined effect of the aforementioned sections is that parental consent is required for the statutory marriage of either of the parties to a marriage who has not attained the age of 21 (twenty-one). The Act did not make any clear provision that twenty-one is the age it recognises as the minimum age for marriage. It merely stated that persons below this age can conduct a valid marriage once parental consent is obtained. See Agbo v. Udo (facts and citation available on request).
The Matrimonial Causes Act of 1970:
There is no stipulation with regards the minimum age for statutory marriage under the Matrimonial Causes Act 1970. It merely provides that a marriage that takes place after the commencement of the act would be deemed void where either of the parties is not of marriageable age- S. 3(1)(e) of the Act. This provision is not in any way helpful as it does not specify what marriageable age is. Therefore, this act cannot be relied on to determine the specific age for marriage in Nigeria.
The Child’s Right Act of 2003:
The Act provides that a child is a person below the age of eighteen years-S.18 CRA 2003. Presently, the Child’s Right Act 2003 in its bid to prohibit child marriage as one of the protection accorded children, provides in its Section 21 that “no person under the age of eighteen years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void and of no effect whatsoever.” This provision also extends to customary or Islamic law marriage. It must however be adopted and domesticated by the legislature of a state before it becomes applicable in that state.
Customary Law Rules Regulating Age of Marriage:
In Nigeria, most systems of customary law do not prescribe any age for the solemnization of customary law marriage. This stems from the fact that once a girl attains the age of puberty she can be validly given out in marriage. The age of puberty is itself uncertain. According to Itse Sagay, who cited the works of Elias in his book, the age of puberty amongst the Yorubas is fourteen for girls and seventeen for boys (ItseSagay, “Nigeria Family Law” (Lagos: Malt House Press Limited 1999) 822). Although this is rather higher than the ages of fourteen for boys and twelve for girls at common law .This discrepancy in the age for marriage has to a large extent propelled the incidence of child marriage. While it is correct to say that most systems do not have a specified age for marriage, some customary law rules have a specified age for solemnization of customary law marriage and this is often tailored to suit the customs of the people of a particular area.
Age of Marriage in the States of the Former Eastern Region
In Eastern Nigeria, the age for solemnization of customary law marriage is generally regulated by the Age of Marriage Law 1956. Prior to the promulgation of this law, the incidence of child marriage was prevalent in the region. This law stipulates that the minimum age required for contracting a valid customary law marriage is sixteen (Section 3 of the Age of Marriage Law 1956). In Cross Rivers State, the age of marriage is pegged at eighteen under the Cross River State Girl Child Marriages and Female Circumcision (Prohibition) Law 2000. Also a minimum age of sixteen is prescribed in Enugu State by Section 3(1) Customary Marriage (Special Provision) Law Cap.33 Laws of Enugu State 2004, and Bayelsa State in Section 2 Age of Customary Marriage Law Cap A5 Laws of Bayelsa State 2006. In Anambra, Ebonyi, Cross Rivers and Rivers State, the giving in marriage of a girl under eighteen years of age is prohibited. A breach of the prohibition constitutes an offence punishable with fine or imprisonment.
Generally, in the Northern Region of Nigeria, a marriage is deemed to be validly contracted once the party has ‘attained the age of puberty’. This is with respect to the girl child as the men are often much older when they marry. This is also applicable in Tiv. In some Northern states of Nigeria such as Bornu state, Benue state and Kwara state, the age of marriage for girls are fixed by various Declarations of Native Marriage Law and Custom Orders made in respect of these areas. In Borno state, the Declaration of Biu Native Marriage Law and Custom provides that the minimum age of marriage is fourteen years- Section 1(a) Native Authority (Declaration of Biu Native Marriage Law and Custom) Order 1964. In other states of Northern Nigeria, girls can be married at the age of thirteen or fourteen but men twenty-five- Itse Sagay, “Nigeria Family Law” (Lagos: Malt House Press 1999), 822.This is in contrast to the Yorubas who prescribe the ages of fourteen for girls and seventeen for boys. In Itsekiri, The age prescribed is sixteen for girls and twenty for boys.
For States in the Federation that have adopted and passed the important provisions of the Child’s Right Act as state law, the age of customary or Islamic law marriage is now 18 years.
Islamic Law Rules Regulating Age of Marriage in Nigeria
Maliki law governs the celebration of Islamic marriages in Nigeria. With regards Islamic law on the age of marriage, Islamic Jurists have opined that the Quran states that a child who has attained the age of puberty is of marriageable age. This provision poses a problem as the age at which puberty is attained amongst girls varies. It is obvious that this provision has in no way helped to reduce the incidence of child marriage in Islamic States rather it has to a great extent helped to foster it. Also, some other jurists suggest that a child experiencing wet dream (ihitlam) or experiencing monthly flow (menstruation/haidah) as stated in the Quran in relation to the age of marriage indicates the age of maturity. Also with the precedence of the Prophet’s marriage to Aisha when she was about 12 years old, it is unanimously agreed by the four sunni schools that there is no higher age a girl must attain before the age of marriage. Therefore, Islamic Law did not fix any age of marriage.
From the foregoing, it has been observed that only the Child’s Right Act 2003 (which is not applicable in states that have not adopted it) made provisions which specify the age of marriage in Nigeria and prohibits marriage of persons below that age. Furthermore, the present state of the systems of customary law which is inclusive of Islamic law reveals that there is non-uniformity in the prescriptions as to the age of marriage in Nigeria. These conflicting provisions bring confusion to the table and make enforcement of age limit for marriage impracticable. A lasting solution to child marriage would be attainable only through extra legal means. Some of the recommendations to the enforceability of age limit for marriage include:
Since the Marriage Act is applicable in all States, it behoves that the Act be revisited and amended to include a marriageable age. Also there should be codification of provisions to protect girls against child marriage in customary and sharia law
Educating and Mobilizing Parents and Community members:
The family being the major support system of every child, it is crucial to embark on interventions and attempts to influence their attitude towards the practise of child marriage by increasing their knowledge of the negative consequences associated with it.
Government should also work with traditional and religious leaders to create awareness of laws and policies on child marriage at the community level.
A system that provides incentives and rewards to girls who are unmarried before the age 18 should be created by the Government.
Mandatory Restraining Orders:
The Government can intensify efforts to end child marriage through the Magistrates by passing a protection order to restrain perpetrators from going through with the marriage.
The Legislature should embark on plans to achieve uniformity of laws pertaining to marriageable age.
Recommendations are quite unending. Until the conflict is resolved and uniformity achieved, enforceability of age for marriage remains problematic and almost impracticable.
Writer: Desmond C. Otikpa, Esq.
Facebook: Desmond C. Otikpa