Enforceability Of Age Limit For Marriage In Nigeria

Project and Seminar Material for Law

Enforceability Of Age Limit For Marriage In Nigeria


Abstract


Child Marriage is a topic which has raised so much public outburst and has caused a lot of controversies. It is a topic which comes with it a great deal of public emotions. Child marriage is tied to a number of factors including religion, traditions and customs. Child marriage usually refers to two separate phenomena which are practical in some societies. The first and most common practice is that of a young child being given out in marriage to an adult. In practice, it is almost always a young girl being married to a man. The second practice is a form of arranged marriage in which the parents of two children from different families arrange a future marriage. In practice, the individuals who become betrothed often do not meet one another till the wedding ceremony, which occurs when they are both considered to be of marriageable age.

Whether a marriage is to be condemned for falling within the meaning of child marriage depends on whether such marriage is between an adult and a child. In other words, a marriage is enforceable only when it cannot be said to be a child marriage. The question that this raises therefore is, “what is the age limit for a valid marriage?” the answer to this question appears to be uncertain. The law has made an attempt in this regard. For instance in Nigeria, some statutes provide a specific age as the minimum age for marriage. The problem however is that there is no uniformity of application of these statutes. Indeed the law on age limit for marriage in the Southern Nigeria is not uniform with the Sharia law as it applies in some Northern parts of Nigeria. Again, the customary laws of the regions appear to apply different standards for determining marriageable age.

This work attempts to examine the different enactments in force in Nigeria and how they apply with regard to marriageable age. It also attempts an examination of the customs of the three major ethnic groups in Nigeria namely Hausa, Igbo and Yoruba, and their practices on marriageable age with a view to determining the validity of theses customs based on the validity tests. The work also looks into the practices of other nations on child marriage and marriageable age. A solution on how uniformity of marriageable age can be achieved will be given at the end of the work.

This work is divided into five chapters. Chapter one deals with the general introduction while chapter two deals with the overview of the statutes that provide for marriageable age in Nigeria. Chapter three deals with marriageable age under the Customary law while chapter four deals with the enforceability of age limit for marriage in foreign jurisdiction. Finally, chapter five deals with the conclusion and recommendations.


Table of Contents


  • Title Page
  • Certification
  • Dedication
  • Acknowledgements
  • Table of Contents
  • Table of Statutes
  • Table of Cases
  • Abbreviations
  • Abstract

Chapter One:

Introduction

  • 1.1 Definition of Terms
  • 1.2 Types of Marriages in Nigeria
  • 1.3 Child Marriages in Nigeria
  • 1.4 Validity of Marriage in Nigeria

Chapter Two:

Overview of the Statutes Governing Marriageable Age in Nigeria

  • 2.1 Domestic Laws
  • 2.1.1 Marriage Act
  • 2.1.2 Matrimonial Causes Act
  • 2.1.3 The Constitution
  • 2.1.4 Child’s Rights Act
  • 2.2 International Laws
  • 2.2.1 African Charter on the Rights and Welfare of the Child
  • 2.2.2 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages
  • 2.2.3 Convention on the Rights of the Child
  • 2.2.4 Universal Declaration of Human Rights

Chapter Three:

Marriageable Age under the Customary Law

  • 3.1 Igbo Custom
  • 3.2 Yoruba Custom
  • 3.3 Hausa Custom

Chapter Four:

Enforceability of Age Limit for Marriage in Foreign Jurisdictions

  • 4.1 USA
  • 4.2 England
  • 4.3 India
  • 4.4 Cameroon
  • 4.5 An Evaluation of the Laws Governing Marriageable Age in the above Jurisdictions

Chapter Five:

Conclusion and Recommendations

  • 5.1 Conclusion
  • 5.2 Recommendations
  • Bibliography

Table of Statutes


Local Statutes

Age of Marriage Law, 1956

  • Section 3(1)
  • Section 4(1)
  • Section 6

Child Rights Act 2003

  • Section 21

Constitution of the Federal Republic of Nigeria, 1999

  • Section 12
  • Section 29(4)
  • Section 29(4) a
  • Section 29 (4) b

Criminal Code Act

  • Section 21
  • Section 361

Interpretation Act

  • Section 18

Matrimonial Causes Act

  • Schedule 1
  • Section 3

Marriage Act

  • Section 33(1)
  • Section 49

Native Authority (Declaration of Bill) Order NALN 9 of 1964

  • Section 1(a)

Native Authority (Declaration of Borgu Native Marriage and Custom) Order NALN 52 of 1961

  • Section 2(1)

Native Authority (Declaration of Idoma Native Marriage and Custom) Order NALN 63 of 1959

  • Section 2(1) a

Native Authority (Declaration Tiv) Order NALN 149 of 1995

  • Section 2(a)

Foreign Statutes

England

  • Marriage Act 1753

India

  • Hindu Marriage Act 1955
  • Section 5
  • Section 5 (iii)
  • Goa Civil Code
  • Bare Act 1909
  • AnandKarj Marriage Act 1909
  • Indian Penal Code, 1860
  • Section 375
  • Child Marriage Restraint Act 1929
  • Child Marriage Restraint (Amendment) Act 1978
  • Prohibition of Child Marriage Act 2006
  • Section 3
  • Section 4
  • Section 5
  • Section 6
  • Section 9
  • Section 10
  • Section 12
  • Section 15
  • Section 16

Cameroon

  • Cameroonian Penal Code, 1981
  • Article 52
  • Civil Status Registration Ordinance, 1981
  • United States
  • Mississippi Code of 1972
  • Section 93 (1-5)
  • Comoros
  • Comoros Penal Code, 1982
  • Section 299

International Statutes

African Charter on the Rights and Welfare of the Child, 1990

  • Article 2
  • Article 21
  • Article 21(2)

African Women’s Protocol

  • Article 6

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1964

  • Article 1
  • Article 2
  • Article 3

Convention on the Rights of the Child, 1989

  • Article 1
  • Article 3
  • Article 19
  • Article 24
  • Article 28
  • Article 29
  • Article 34
  • Article 36

General Recommendation No.21 of CEDAW Committee 1994

  • Paragraph 36

SADC Protocol on Gender and Development, 2008

  • Article 8(2)

Universal Declaration on Human Rights, 1948

  • Article 16(1)
  • Article 16(2)

Table of Cases


  • Court on Its Own Motion (Lajja Devi) v State (2012) 6 AD (Delhi) 465
  • Emeakuana v Umeojiako (Suit No. AA/IA/76 (unreported) High Court Awka, October 15 1976 p.61
  • Folata v Dowoma (1970) NWLR 105
  • Harrod v Harrod (1854) 1 K&J 469; (1854) ER 344
  • Labake v Labinjo
  • Okpanum v Okpanum (1972) 2 ECSLR 561
  • Omoga v Badejo (1985) NCNLR 1075
  • SondurGopal v SondurRajini (2013) 7 SCC 426
  • Osamwonyi v Osamwonyi (1973) NMLR 26

Abbreviations


  • ACERWC African Committee of Experts on the Rights and Welfare of the Child
  • ACRWC African Charter on the Rights and Welfare of the Child
  • AD Apex Decisions (India)
  • CEDAW Committee on the Elimination of Discrimination against Women
  • CRC Convention on the Rights of the Child
  • ECSLR East Central States Law Reports
  • ER English Reports
  • K&J Kay & Johnson’s Vice Chancellor’s Reports (England)
  • MCA Matrimonial Causes Act
  • NALN
  • NCNLR
  • NLR Nigeria Law Reports
  • NMLR Nigeria Monthly Law Reports
  • NWLR Nigeria Weekly Law Reports
  • SADC Southern African Development Community
  • SCC Supreme Court Cases (India)
  • UN United Nations

Chapter One


Introduction

1.1 Definition of Terms

1.1.1 Age

Age is defined as a span of years during which some event occurs. It is also defined as the number of years something has been alive or in existence. Age has also been defined as a period of time, especially one marking the time of existence or the duration of life.

1.1.2 Age Limit

An age limit is the oldest or youngest age at which you are allowed under particular regulations to do something. It is also defined as the age at which a person is allowed or not allowed to do something.

1.1.3 Child

This word has two meanings in law: (1) In the law of the domestic relations, and as to descent and distribution, it is used strictly as the correlative of “parent,” and means a son or daughter considered as in relation with the father or mother. (2) In the law of negligence, and in laws for the protection of children, etc., it is used as the opposite of “adult,” and means the young of the human species, (generally under the age of puberty,) without any reference to parentage and without distinction of sex. A child also means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.

1.1.4 Child Marriage

Child marriage is a formal marriage or informal union entered into by an individual before reaching the age of 18. It is also defined as any marriage of a child younger than 18 years old in accordance to Article 1 of the Convention on the Right of the Child. Child marriage, defined as a formal marriage or informal union before age 18, is a reality for both boys and girls, although girls are disproportionately the most affected

1.1.5 Marriage

The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of Husband and Wife in law for life, or until the legal termination of the relationship. Marriage is also defined as the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.


1.2 Types of Marriages in Nigeria

There are three types of marriages legally recognized in Nigeria.

  • The Customary Marriage
  • The Civil/Statutory Marriage
  • The Islamic Marriage
1.2.1 Nigeria Customary Marriage

There are various ethnic communities in Nigeria and the various ethnic groups have their different marriage customs. There are however some generally accepted customs common to most of them which will be discussed here.

Marriage under customary law creates a relationship not only between a man and woman but also between the two families involved. The wife is regarded by the members of her husband’s family as having been married not solely to her husband but into the family and therefore a member of their family. The husband on the other hand is not so regarded by his wife’s maiden family, even though there exist a continuing relationship with that family.

Marriage under Customary Law is largely polygamous. A polygamous marriage is the union of one man with several wives. There is no limit to the number of wives a man can marry under customary law.

After intentions to marry has been communicated between the two parties concerned and also between their respective families, discreet inquiries may be carried out by each of the families in order to discover facts about the parties. These facts may sometimes be based on the family’s social and health background as well as the character of the party. For example, investigations may be carried out to find out if the family concerned has any contagious or hereditary disease such as mental illness; whether the person concerned has bad habits such as stealing or lying; or whether the family concerned belongs to the system of outcasts known as Osu(amongst the Ibo’s). Some of the facts found may constitute bars to the proposed marriage.

The law insists on the payment of the bride price in other to have a valid marriage. However it doesn’t insist that the payment must be completed before the marriage can take place. But part payment must be made before a valid marriage can be performed. And in practice this is what happens. For some states and communities the payment of the bride price is in different stages and the man can do one stage and request to come back at a stipulated time or when he can to complete the payment of the bride price. And the woman will be considered married and they are allowed to start their lives as husband and wife.

In most states and communities in Nigeria, the bride price is payable to the father. In the absence of the father it is payable to the male head of his immediate family. In the absence of a male head, it is payable to a guardian.
In practice the customary marriage is referred to as the traditional marriage. The Yorubas call it the engagement.

The formal traditional ceremony is where the groom brings all that he’s been asked to bring in the bridal list he was given. And the elders of the bride’s family conduct the ceremony and accept the bride price. After which there’s a lot of eating and drinking.

The traditional marriage is compulsory. The paying of the bride price to marry a woman is the oldest ceremony for having a valid marriage. In Nigeria and as a Nigerian, without it, the society doesn’t consider you married even if you go to court to register your marriage and get a marriage certificate.

1.2.2 Nigerian Civil Marriage

Nigerian civil marriage also known as statutory marriage and popularly known as court wedding in Nigeria is where the couple registers their marriage under the Marriage Act of Nigeria and obtain a marriage certificate.

This type of marriage is in accordance with the Marriage Act which is a federal legislation which makes provisions for the celebration of marriages in Nigeria. It is clear that the Act is designed only for the celebration of marriage between a man and a woman, and the marriage has to be a monogamous one. A monogamous marriage has been defined in section 18 of the Interpretation Act as follows:

A marriage which is recognized by the law of the place where it is contracted is a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.

A civil marriage is compulsory because it offers security to the woman and her unborn children. The wife has rights under the law as legally married to her husband.

The civil ceremony doesn’t involve much and it takes very little time. You can get married within an hour and on any day of the week. All you’ll need are two witnesses, one for the bride and one for the groom.

1.2.3 Islamic Marriage

Islamic marriage like customary marriage is a polygamous one which allows the man to take up to four wives if he desires. It possesses most of the features of customary law marriage already discussed.

1.2.4 Other marriage ceremonies
Religious marriage – AKA White wedding

Religious marriage ceremony is simply to bless the marriage. For some doctrines however it is more than that. It’s especially to make the couple aware of the seriousness of the commitment they are making and remind them of the guidelines for a successful marriage as offered in the holy book, the bible.

Marriage after all is a divine institution. And there’s a standard set forth in the Holy Scriptures for its success. The religious marriage is optional. Many couples are doing without it.

The white wedding is supposed to be a combination of the religious marriage ceremony and the wedding reception party. But some are now having white wedding without the religious ceremony but instead have the court wedding and after have a reception party.

For a religious marriage to be legal it must be licensed and recognized by the state. Usually churches that conduct weddings need to get approval from the state. This way, a person having a religious wedding doesn’t have to go to the court to register and collect a marriage certificate; this is made available to them through the church.


1.3 Child Marriages in Nigeria

In Nigeria, particularly northern Nigeria has some of the highest rates of early marriage in the world. The Child Rights Act of 2003 sets the national legal minimum age of marriage at 18. To be effective, however, state assemblies must take necessary measures to implement the Act, and to date, only 23 of Nigeria’s 36 states have taken concrete steps to execute the minimum age of marriage.

While data shows a 9% decline in the prevalence of child marriage since 2003, action is needed to prevent thousands of girls from being married in the coming years.

To further complicate matters, Nigeria has three different legal systems operating simultaneously—civil, customary, and Islamic—and state and federal governments have control only over marriages that take place within the civil system.

Nationwide, 20 percent of girls were married by age 15, and 40 percent were married by age 18. Child marriage is extremely prevalent in some regions; in the Northwest region, 48 percent of girls were married by age 15, and 78 percent were married by age 18. Although the practice of polygamy is decreasing in Nigeria, 27 percent of married girls aged 15–19 are in polygamous marriages.

Consequences of Child Marriage
  1. Child marriage is a fundamental violation of human rights. Many girls (and a smaller number of boys) are married without their free and full consent. By international conventions, 18 years has been established as the legal age of consent to marriage. If the timing of marriage does not change, over 100 million girls will be married as children in the next ten years.
  2. Child marriage is closely associated with no or low levels of schooling for girls. In West and Central Africa, girls with three or fewer years of schooling are five times more likely than girls with eight or more years of schooling to marry before age 18. Poverty leads many families to withdraw their daughters from school and arrange marriage for them at a young age. These girls are denied the proven benefits of education, which include improved health, lower fertility, and increased economic productivity.
  3. Child marriage, in many instances, marks an abrupt transition into sexual relations with a husband who is considerably older. The younger a bride is, the more likely it is that she enters marriage asa virgin, and the larger the age difference between her and her spouse. Parents frequently arrange marriages for their daughters without their input or consent. In some settings it appears that the younger a girl is when she gets married, the less say she has in the choice of her husband.
  4. First births carry special risks for both mother and child. The vast majority of births to adolescent girls are first births that occur within marriage. The foremost risk first births carry is prolonged or obstructed labor, which can result in obstetric fistulas in settings where access to care is limited. First births also have elevated risks of pre-eclampsia, malaria, and infant mortality. Girls who give birth during adolescence require special attention because they are less mature and are simultaneously coping with their own and their baby’s physiological, emotional, and economic needs. Globally, adolescent mothers tend to be poorer, less educated, and less adequately nourished than older mothers; they also face greater social disadvantage.
  5. Married girls have distinct and in some settings substantial risks of acquiring HIV. Child brides typically experience high rates of unprotected sex; have significantly older (and thus more sexually experienced) spouses, and are largely unable to negotiate safer sex. In settings with generalized HIV/AIDS epidemics, these factors may leave married girls vulnerable to infection.

1.4 Validity of Marriage in Nigeria

The above topic will be discussed under the various types of marriages obtainable in Nigeria.

1.4.1 Statutory Marriage

Parties will be deemed to have the capacity to marry if they satisfy the marriage Registrar of the following requirements:

i. Age

The Marriage Act does not specify any minimum age limit. It merely states that unless a party is a widow or widower, there is need to obtain the written consent of either the parents or guardians where such person is under the age of twenty one years. The Act further provides in section 49 that whoever shall marry or assist any person to marry a minor under the age of twenty one years, not being a widow or widower, shall be liable to imprisonment for two years.

ii. Consent

Under statutory marriage, parental consents of both the male and female parties is a legal requirement but only in cases where either or both of the parties are under the age of twenty one years. The Marriage Act is silent in relation to the consent of parties themselves but the Matrimonial Causes Act (MCA), 1970 provides for the ‘real consent’ of the parties, that is, consent obtained without ‘duress or fraud’.

iii. Subsisting Marriage

Parties will lack the capacity to embark on a statutory marriage if either of them is already married under the Act to another person and the marriage has not been dissolved by any court of law. Also, section 33 (1) of the Marriage Act provides that no marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any other person other than the person with whom such marriage is had. It is therefore clear that unless the Registrar is satisfied that there is no subsisting statutory or customary law marriage on the part of any of the parties wishing to marry under the Act, he shall not issue them with a certificate to marry under the Act.

iv. Kindred and Affinity

Persons intending to get married must ensure that there is no impediment of kindred or affinity between them. The list of prohibited degrees of consanguinity and affinity applies to statutory marriages and it is provided in Schedule 1of the MCA. A Registrar will not issue a certificate to marry unless he is satisfied by reason of a sworn affidavit by the parties that there is no such impediment. A marriage between two persons who are within the prohibited degree of consanguinity or affinity is void. Under section 4 of the MCA, where persons are within the prohibited degrees of affinity and desire to marry, they may apply in writing to a Judge for permission to do so and if the Judge is satisfied that there are exceptional circumstances, the Judge may by an order permit the parties to marry one another.

Marriage under the Marriage Act may be celebrated in any licensed place of worship by any recognized Minister of the church, however before the Minister of the church celebrates the marriage, the couple shall have delivered to him the certificate of the Registrar of Marriages or the Registrar’s license authorizing such marriage. Alternatively, the couple may decide to celebrate their marriage in the Registry before a duly licensed Registrar appointed pursuant to the provisions of the Marriage Act.

1.4.2 Customary Marriage

Generally the following are pre-requisites for a valid customary marriage:

i. Betrothal

When the families concerned are convinced that there are no facts that could hinder the marriage, the betrothal, which is the formal engagement of the parties will now take place. The engagement usually consists of a formal process of agreement to marry between the prospective spouses, the giving of consents by their parents or guardians and the giving of gifts (in money and/or kind) by the man to the woman and her family. After the betrothal then actual marriage takes place.

ii. Capacity of the parties

Most of the customary laws in Nigeria do not prescribe any age for the solemnization of customary-law marriage. This lacuna in the rule of customary law has to a large extent encouraged a high incidence of child marriage, with all its attendant evils. In some areas, child betrothal is rampant but marriage does not in fact take place until the parties have attained the age of puberty. There is no doubt that there were a lot of child marriages under customary law because there was no law against child marriage (most of which occur in the northern part of the country) but since the passing of the Child’s Rights Act 2003, no marriage of persons below the age of eighteen is allowed under Nigerian Law.

iii. Consent of the parties and parents

The intending couple has to give their consent to a customary marriage. The Supreme Court in the case of Osamwonyi v. Osamwonyi, held that under Bini Native Law and Customs, the consent of the parties was necessary for a valid marriage under customary law. Parental consent is also necessary before a valid customary marriage can take place. In Okpanum v. Okpanum, the High Court of East Central State of Nigeria held that in order to constitute a valid customary marriage, there must be parental consent and mutual agreement between the parties.

Furthermore, under section 361 of the Criminal Code Act, it is an offence punishable with seven years imprisonment for any person who with the intent to marry a female person of any age or to cause her to be married by any other person takes her away or detains her against her will.

iv. Marriage consideration/bride price

Marriage consideration otherwise called bride price is one of the essential requirements of a valid customary marriage. The bride price includes any gift or payment in the form of money, natural produce or any kind of property given by an intending husband and his family to the parents or guardian of a female person on account of the marriage.

v. Solemnization of the marriage

Solemnization or celebration is an essential ingredient of a valid customary law marriage. It generally involves breaking kola, pouring libation, sharing drinks and other activities. The bride is invariably handed over to the bridegroom and his family. In the case of Omoga v. Badejo, the Court held that there must be a formal handing over of the bride to the groom in the presence of the two families and witnesses and the acceptance and taking away of the bride to her husband’s house for marriage under Yoruba Native Law and Custom, to be valid.

vi. Consummation of the marriage

Consummation of the marriage under Native Law and Custom is essential. Consummation simply means having sex, with a view to making a marriage complete. In traditional societies, the very night of the marriage is eagerly awaited by the groom’s family as he is expected to announce his exploits to his family and state if his wife was found intact or not.

1.4.3 Islamic Marriage

The principal requirements of a valid Islamic law marriage are:

i. Consent of the parties

The parties to Islamic law marriage must freely consent to the union. However, under the Maliki School of Islamic Law, a father has the right to conclude a marriage on behalf of his infant sons and virgin girls. The ceremony is called the Ijbar. The exercise of this right may be ameliorated by the fact that the child has the option to repudiate the marriage contract on the attainment of the age of puberty. However, a father loses his right of Ijbar where he allows his daughter to choose a husband from among her suitors.

ii. Parental consent

As in other systems of customary law, parental consent is necessary for the valid celebration of marriage under Islamic law.

iii. Payment of the Saduquat

Saduquat (Sadaki) or dower is the bride price received by the parents of the bride to be. It is the entitlement of the woman and not that of her parents, though it is paid through the parents.

iv. Solemnization

The marriage needs to be solemnized by a Mallam in the presence of at least two upright Moslem witnesses.


Chapter Five


Conclusion and Recommendations

5.1 Conclusion

It is important for any given country to have a minimum age of marriage as this legally protects children from abuse, harm, violence and exploitation (especially sexual exploitation). Article 2 of the African Charter on the Rights and Welfare of the Child (ACRWC) and Article 1 of the Convention on the Rights of the Child (CRC) define a child as a person aged below 18. Marrying off persons aged below 18 therefore amounts to child marriage and this is a harmful practice which must at all cost be prohibited, as it curtails children’s right to education, reduces their chances of survival by putting their health at risk, and hampers national development, among a myriad of other negative consequences.

As a harmful practice, child marriage is prohibited by international and regional standards. When the ACRWC was adopted in 1990, one of its unique features was the entrenchment of Article 21(2), which provides that ‘child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory’. Even though both girls and boys fall prey to child marriage, in most cases it is girls who are the victims. Thus, most societies adopt discriminatory practices by sending boys to school and giving girls into marriage. This is contrary to the protection provided by Article 21 of the ACRWC. To further ensure that girls are protected from such practices, the African Union in July 2003 also adopted the African Women’s Protocol, whose Article 6 sets the minimum age of marriage for women at 18 years and prohibits harmful practices. Similarly, Regional Economic Communities have also stressed the importance of having a minimum age of marriage that is not below the age of 18 as demonstrated by the 2008 SADC Protocol on Gender and Development which provides in Article 8(2) that ‘ legislation on marriage shall ensure that: no person under the age of 18 shall marry’. However, Article 8(2) of the SADC Protocol goes further to say that ‘unless otherwise specified by law which takes into account the best interests and welfare of the child.’ Such kind of provision is of course problematic as it leaves room for differentiated regulation regarding minimum age of marriage in different countries, and sometimes within the same regime, as is the case in some States like Nigeria, which is a Federal.

Within the UN, a notable document that clearly defines the minimum age of marriage as 18 is Paragraph 36 of the 1994 General Recommendation No. 21 of the CEDAW Committee, on equality in marriage and family relations.
In line with these standards, 32 African countries have set the minimum age of marriage at 18 for both girls and boys while in Algeria, Lesotho, Libya and Rwanda, the minimum age of marriage is above 18 for both girls and boys.
In 18 African countries, the minimum age is either discriminatory or below 18, with Sudan having the lowest minimum age of marriage at 10 for boys and puberty for girls for Muslim marriages (which are the most prevalent) and 13 for girls and 15 for boys for non-Muslim marriages.

In Africa, three different legal approaches have been adopted in so far as child marriage is concerned. There are those countries which criminalize premature, early or child marriages; those which ban or invalidate marriage below the legally prescribed minimum age; and those which merely prescribe a minimum age of marriage without expressly criminalizing or banning it, even though the consequence may be the same as express prohibition of child marriage.

One of the major challenges in enforcing minimum age of marriage legislation is that this is a practice embedded in beliefs associated with cultural and sometimes religious norms, which are not easy to change. Consequently, early marriage is not viewed as a criminal offence, as families view it as a culturally legitimate practice. Addressing attitudes and customs that promote or condone the practice is vital to changing the legally acceptable minimum age of marriage.

Sometimes this is also perpetuated by the prevalence of plural legal systems pertaining to marriage, of which many societies tend to opt for the traditional system as traditional norms relate to the lives of the citizens. This is the state of affairs in Nigeria. This challenge has often been cited by the United Nations Committee on the Rights of the Child (UN Committee) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), as a major challenge in the fight against child marriages.

Another challenge is that there is a lack of national monitoring and enforcement mechanisms for those who flout the law. This is also further compounded by the fact that not all countries have specialized justice systems with Children’s Courts and Child Protection Units across all regions. It is therefore not easy to access child-friendly mechanisms to enforce violations of protection from child marriage. In addition birth registration systems are not effective in most African countries hence it is not possible sometimes to determine the actual age of a person claiming to be old enough to marry.

Furthermore, in some cases, there are no provisions for legal consequences for those who contravene the minimum age of marriage legislation. In such instances although the legislation may provide that child marriage is either invalid or prohibited, there is no penal element, or sanction associated with such an act, which therefore adversely affects the enforcement of minimum age of marriage provisions in national legislation.

International and regional standards are very important in protecting children from child marriage. Eighteen years is the internationally and regionally established minimum age of marriage as per the African Charter on the Rights and Welfare of the Child and other instruments. All countries which have ratified these instruments have an obligation to take legislative and other measures to implement the provisions of those instruments.

There is no value in countries ratifying Conventions if they do not align their legislation and policies with the international and regional standards.


5.2 Recommendations

Specialized courts are needed. Children who marry under customary law should be able to seek recourse through the formal justice system. Child marriage may in most cases not infringe the customary law under which the child was married unless the law specifically provides for a specific minimum age for those who marry under customary law, and that minimum age of marriage under customary law has been infringed, in which case, the marriage may be nullified and damages may be claimed by the girl (but this is very unlikely). Therefore, the best recourse for the child is the formal justice system where the child may claim compensation in the form of damages, or where the ‘partner’ may face criminal sanctions in systems where child marriage has been prohibited and criminalized. For example, in the Comoros, where the minimum age of marriage is 18, Section 299 of the Comoros Penal Code (1982) provides that ‘whoever, when it comes to consummation of a marriage under the traditional law has done or attempted to perform the sexual act on the person of a child under 13 years of age or immature will be punished by two to five years imprisonment’. Thus, while recognizing traditional marriages, the law provides for special protection for children aged below 13, such that it is not a defence to claim that one has been married to the child under the customary law regime. This form of legislation should be incorporated in both the Criminal Code and the Penal Code.

If all African countries respect and meet their obligations under the ACRWC, first of all to take legislative measures by setting 18 years as the minimum age of marriage; secondly to take other measures by ensuring that systems are in place for protecting children from entering or being forced to enter into marriage; and thirdly, to submit periodic reports to treaty bodies on how they are actually ensuring that children are protected from marriage, the rate of child marriage would be significantly reduced and societal attitudes would easily be changed to understand that it is a violation of children’s rights to allow or force them to get married before the age of 18.

In compliance with the above Charter and the UN Convention, the Child’s Rights Act 2003 was enacted by the National Assembly. Section 21of the Act provides that “No person under the age of 18 years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void and of no effect whatsoever.

The Child Rights Act of 2003 is in conformity with the universally accepted age of marriage and it has taken into consideration the best interest of the child in all aspects like right to health, education, dignity and right to protection from sexual abuse. The incidence of VVF which is common in the Northern part of Nigeria could be prevented if this law is domesticated by all states of the Federation.

Nigeria being a member of the United Nations Organization and African Union, we have a duty or obligation to respect conventions and charters ratified by our National Assembly or government.


Enforceability Of Age Limit For Marriage In Nigeria


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