The Age of Marriage Question in Nigeria: How Far Resolved?

 

By Michael Attah Ph.D. (Benin), B.L, Senior Lecturer in the Department of Private and Property Law, University of Benin, Nigeria. E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Abstract

This article examines the subject of minimum age for marriage from the point of view of the broadly dual marriage system in Nigeria imposed by its Constitution. An examination of existing statutes indicates that there is no uniform age of marriage in Nigeria. Indeed, there is none for statutory (monogamous) marriage. Furthermore, it is shown that the Child’s Rights Act 2003 (CRA) is not a all-cure. As legislation on age of marriage, it is constitutionally limited in the priority of statutes. It suffers both substantive and territorial restriction in its application. Those coupled with the lack of uniformity in the age stipulation in many of the federating states regarding customary and Islamic law marriages leave the question of age of marriage presently unresolved in Nigeria. Statutory examples from other jurisdictions in Africa, Europe and Australia show that states generally prefer a flexible, non-hard-liner approach to the age of marriage question. Nonetheless, this paper is of the view that while it is possible to use Nigeria’s Bill of Rights as contained in the 1999 Constitution and the CRA and state equivalents to protect children from the vice of child marriage, their usefulness could be limited given that judicial application may be influenced by socio-cultural and religious preconceptions of judges. Child marriage often presents in customary settings because there is generally an indifferent attitude to the provisions of the law because, unlike statutory marriage, there is complete absence of intervening official assessment of the eligibility of potential celebrants. Therefore, it recommends the device of constitutional stipulation of a uniform minimum age of marriage. Such a stipulation should be made to apply to every type of marriage in Nigeria and provide a watch role for community custodians of customary law. These would send a positive message that marriage of minors is generally unacceptable.

 

Introduction

Since the passage of the Nigerian Child’s Rights Act 2003,[1] there has been much fervour over a country-wide minimum age for marriage. Lawyers, lawmakers, government functionaries, and even some legal academics are caught up in this euphoria. It is touted, and the CRA is quickly cited as authority, that the age of marriage in Nigeria is now 18 years. This article examines the subject of the minimum age for marriage from the point of view of the broadly dual marriage system in the country imposed by Nigeria’s Constitution. It appraises the important statutes[2] that affect this subject to show that there is no uniform age of marriage in Nigeria. Indeed, there is none for statutory (monogamous) marriage. Furthermore, it is shown that the CRA is not an all-cure. As legislation on the subject of age of marriage, it is constitutionally limited in the priority of statutes because of substantive and territorial restrictions in its application. Those coupled with the lack of uniformity in the age stipulation in many of the federating states regarding customary and Islamic law marriages leave the question of age of marriage presently unresolved in Nigeria. Statutory examples from other jurisdictions in Africa, Europe and Australia show that states generally prefer a flexible, non-hard-liner approach to the age of marriage question. Nonetheless, they provide safeguards against the vice of child marriage. This paper is of the view that while it is possible to use Nigeria’s Bill of Rights in the 1999 Constitution to protect children from the vice of child marriage, its usefulness can be limited given that judicial application may be influenced by socio-cultural and religious preconceptions of judges. Furthermore, child marriage often presents in customary settings where there is generally an indifferent attitude to the provisions of the law because, unlike statutory marriage, there is complete absence of intervening official assessment of the eligibility of potential celebrants. The tendency is to follow the customary conscience which is generally personal. Therefore, it recommends the device of constitutional stipulation of a uniform minimum age of marriage. Such a stipulation should be made to apply to every type of marriage in Nigeria and provide a watch role for community custodians of customary law such as traditional rulers of different cadres especially those that are closest to people in customary settings including community and clan heads. These would send a message that marriage of minors is generally unacceptable. Sections 2 and 3 below identify the constitutionally endorsed two broad systems of marriage in Nigeria to contextualize the issue of legislative jurisdiction on age of marriage. In section 4 we show that there is no age of marriage under the Marriage Act 1914 – the lex loci celebrationis for statutory (monogamous) marriage in Nigeria. In Sections 5 and 6 we examine the status of the CRA’s age of marriage stipulation and the applicability of age stipulations in existing state laws. Finally, in section 7 we show that laws in some other jurisdictions indicate some flexibility, nonetheless adequate safeguards are placed to protect minors from the vagaries of child marriage. While early marriage and some health hazards are loosely linked, an age stipulation sends a positive message about marriage and sexuality. 

 

Nigerian Marriage Law Background

Presently, there are two sets of marriage regimes existing in Nigeria even though they flow from the three systems of law operative in this jurisdiction.[3] They are customary law (including Islamic law) marriages on one hand and statutory marriage under the Marriage Act 1914[4] on the other. This categorisation is traditional[5]even though it seems that there is a distinction between customary law marriages and Islamic marriages.[6] For example, the 1999 Constitution distinguishes statutory marriages from “marriages under Islamic law and customary law.”[7] Apparently, the basis for grouping customary law and Islamic marriages together is that in relation to the MA, both marriages have the same status: apart from being classed together, the MA does not apply to them.[8]Often, parties contract marriages under the two systems of law and thus subject themselves to their incidents including potential polygamy[9] for the customary/Islamic marriages, monogamy for the statutory marriage[10]and divorce laws.  Whereas general capacity to contract commences at 21 in a number of states,[11]excluding those that passed the CRA as state laws,[12] the question of capacity (age) does not usually arise at the stage of betrothal in practical terms.[13]

 

Different Marriage Types: Who has Jurisdiction to Make Laws?

As noted above, there are two categories of marriage in Nigeria. The question of which legislative house has jurisdiction to make laws to regulate them must begin with an analysis of relevant provisions of the Second Schedule to the 1999 Constitution. It lists “the formation, annulment and dissolution of marriages other than marriages under Islamic law and customary law including matrimonial causes relating thereto”[14] as one of the matters over which only the National Assembly[15] has powers to make laws. This exclusive jurisdiction over statutory marriage includes stipulations as to minimum age for same. Where a state legislature makes a law on statutory marriage, it must not contradict the federal law on the subject otherwise it will be void to the extent of such inconsistency.[16]The above provision of the 1999 Constitution expressly preserves, recognizes and confirms the existence and place of customary and Islamic law marriages but promotes a policy of keeping these institutions independent. This means that generally, customary and Islamic law marriages are not within the legislative jurisdiction of the National Assembly. The Federal Legislature supports this separateness between customary/Islamic law marriages and statutory marriages. For example, the MA 1914 stipulates that parties to a statutory marriage are incapable of contracting a subsequent customary or Islamic law marriage.[17] Before issuing his certificate, a registrar of marriage must be satisfied by affidavit that neither of the parties to the intended marriage is married by customary law to any other person.[18] Where a person is already married under customary law or Islamic law, such a person cannot contract a valid marriage under the Marriage Act with a third party.[19] Where he does, because he suppresses or perjures the facts, such a marriage is illegal and therefore void.[20]On the other hand, the MA allows two parties to a customary law marriage to contract a subsequent monogamous marriage between them;[21] and it is this provision that has given rise to the existence of the so-called “double-deck" marriages.[22] On the whole, the MA recognises and validates customary law marriages, defines the priority of marriages, and preserves the segregation of the regimes.[23] Therefore state legislatures (and local government councils in appropriate cases) have jurisdiction to make laws affecting customary law or Islamic law marriage as a residual matter not listed in the Constitution for any of the legislative houses.  

 

The Marriage Act 1914 and the Question of Age

Item 61 of the Second Schedule and section 4 of the 1999 Constitution give the National Assembly exclusive jurisdiction to prescribe a minimum age for statutory marriage in Nigeria. The MA 1914 is the federal law regulating the formation of statutory marriage in Nigeria; and the only provision on age is contained in section 18. It provides that where any of the parties is less than twenty one years, that party must procure a written parental consent.[24] The consent may be given by other persons where the parents are unavailable to give the consent.[25]The prescription of the age of 21 as the age where parental consent is not required does not imply that it is the minimum age of marriage. Even though the parties are regarded as “minors” for the purpose of marriage, and are required to have written parental consents, they are nevertheless permitted to marry. Furthermore, failure to obtain consent does not invalidate the marriage or make it illegal.[26] The only ramification is criminal, but not for the parties or the marriage. Those who marry them or assist or procure their marriage may be guilty of a crime.[27]Another problem is that the MA appears to accept the marriage eligibility criteria set out under other regimes such as customary law. This is because apart from not specifically prescribing a minimum marriage age or prohibiting the marriage of “minors” it exempts a “widower or widow” from the requirement of obtaining parental consent even though such a widower or widow may be less than 21.[28] Of course, the first marriage of such persons would have been at a much earlier age and they would still be minors to fall under the “widower/widow” exception under section 18. This is an implied recognition that the age of majority for marriage may be different in other regimes such as customary or Islamic law. This remains good law in Nigeria and the provisions of section 29 of the 1999 Constitution does not affect this position. Indeed, it is in tandem with it. That section concerns renunciation of citizenship. It permits any Nigerian citizen of “full age” to renounce his/her citizenship by declaration in the prescribed manner. For the purpose of such renunciation, “full age” means 18 years and above and every married woman is deemed to be of full age. Properly interpreted, the section cloaks women married before the age of 18 with ‘full age.” Finally, even though section 3(1) of the Matrimonial Causes Act 1970[29]voids a statutory marriage where any of the parties is not of “marriageable age,” this expression is nowhere defined in the Act leaving it moot.

 

The Status of the Child’s Rights Act’s Age of Marriage

In 2003, the CRA was passed and it sought to prohibit child marriage as one of the protection rights accorded children.[30] Section 21 provides 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.”[31] It does not state the type of marriage the provision applies to. Therefore, the prohibition may have been intended to extend to all marriage types.[32] One view is that the CRA is applicable to the MA.[33]In other words, the age prescription must be read into it so that the CRA’s provision on age of marriage constitutes an amendment of the MA. However, this would be unfounded. In the first place, the CRA does not provide that section 21 constitutes an amendment to the MA. Indeed, the omnibus section 274 of the CRA on suspension and inconsistency does not mention the MA or even “marriage” as one of the subjects over which the CRA will have overriding impact.[34]. The MA represents Nigeria’s lex loci celebrationis in relation to statutory marriage. It spells out the essentials, the entire formal process and formal procedure for a valid statutory marriage. Were section 21 to be an amendment of the MA, the ramification will be that other related provisions of the MA will also require amendment. For instance, as noted in the preceding section, persons who are less than 21 years old are required to obtain written parental consent under the MA. That is an upper age compared to the CRA’s age; and the query will be what will happen to the consent requirements where, for instance,19-20 year-olds desire to marry. Would the registrar still be required to insist on obtainment of the requisite consents? The offence section of the MA on consent (section 48) will face the same problem. Finally, it will be incongruous that a miniscule of such a wide-ranging legislation such as the CRA will have a federal application while the bulk will not. Therefore, section 21 of the CRA cannot be read into the MA. That will amount to introducing through the backdoor an amendment that the National Assembly can competently introduce through front door by amending the MA itself!

The true position is that as laudable as section 21 is, it suffers important limitations. It is limited in its territorial application. This is because it does not cover a federal subject and cannot therefore apply directly in constituent states.[35] The subject of child rights is residual under the 1999 Constitution giving the National Assembly, States Houses of Assembly and even Local Government Councils jurisdiction to make laws over it in appropriate cases where the local authority has been empowered by a law of a House of Assembly.[36]The CRA applies directly only in the Federal Capital Territory (FCT).[37] Secondly, for the same reason (legislative jurisdiction), it is secondary in the priority of statutes in relation to statutory marriage. Given the provisions of Item 61 of the Second Schedule to the 1999 Constitution, any law on formation of (statutory) marriage must be federal and thus apply to the entire Federation and not a section of it. The MA represents the specific federal law on that subject, and it does not prescribe a minimum age for marriage. The CRA’s provisions on marriage cannot therefore override it. Parties contracting a statutory marriage must only comply with the MA.[38] This does not include meeting a requirement of age. This is true even in the FCT where the CRA applies. The section 21-prohibition must then be restricted to customary and Islamic law marriage celebrated in the FCT.[39]

While it is true that the National Assembly has powers to make laws with respect to matters in the Exclusive List (its federal jurisdiction) “for the peace, order and good government of the Federation or any part thereof,”[40] where it makes a law with respect to the FCT, it does so as if it were a House of Assembly of a State.[41] In that capacity, it cannot make a law on marriage formation that will be different from or inconsistent with the federal law applicable in other parts of the Federation.[42]

 

Age of Marriage in the States

A number of States in the Federation have adopted and passed the important provisions of the CRA as state law.[43] Again, in such states some imagine that the age of marriage question has been resolved in favour of 18 years where the state adopts the provision of the CRA wholly. This is hasty. The true position is that for such states, it may be safe to conclude that the age of customary or Islamic law marriage only is now 18 years. Of course, it is possible for a state legislature to depart from this standard minimum age.[44] Such minimum age is inapplicable to statutory marriage as the state legislature does not have jurisdiction over that matter under the 1999 Constitution. Nonetheless, the CRA has a positive effect on marriage age in those states.  The dual marriage culture may mean that parties will undertake the customary or Islamic law marriage first. In such a case, they must be at least 18 years old to have a valid marriage. This invariably will affect their age when undertaking the statutory marriage which can only be subsequent to the customary or Islamic law marriage. Finally, some states especially in the South-Eastern/Southern part of the country already had laws prescribing a minimum age for customary law marriage before the passage of their Child Rights Laws. Such laws are to be regarded as existing law under section 315 of the 1999 Constitution. Some other anti-gender discrimination or anti-violence laws also prohibit child marriage. In at least four states, entering into marriage of a girl under the age of 18 is prohibited.[45] In two other states, the minimum age of marriage is 16.[46] Native Authority (now Local Government Councils) bye-laws for some areas prescribe ages between 12 and 14 or puberty for marriage.[47] One last twist is where the CRL fails to expressly repeal an earlier age of marriage law. A sensible conclusion is that it does so impliedly. And where a Native Authority byelaw is inconsistent with the state’s Child’s Rights Law, the CRL will prevail. This is because 1999 Constitution recognises legislative authority for only the Federal and state governments.[48] The legislative powers of local government councils will derive from a state law.[49] This is the current state of the law on age of marriage in Nigeria. This however is not odd.

 

Curbing Child Marriage through Specific Age Stipulation

The arguments for a minimum age of marriage are protectionist. One scholar in Nigeria concludes that the absence of an age of marriage facilitates the “obnoxious practice of child marriage.”[50] This echoes the arguments of the Committees on Elimination of Discrimination Against Women and Rights of the Child on Harmful Practices (CEDAW/CRCHP) which regard child marriage as “forced marriage” and a “harmful practice.”[51] It is forced because it is said that the child is incapable (or limited in capacity) in law of giving full and free informed consent. It is harmful because of likely health challenges. In Malawi, the special Law Commission on the Review of the Laws on Marriage and Divorce in recommending the age 18 as the minimum age of marriage[52] expressed the view that marriage before 18 “is a health hazard...has negative development implications” (especially for the girl child) and may make the attainment of the2015 bound Millenium Development Goals for girl child education elusive.[53]Added to this, is psychological immaturity and inexperience. In England, Pearce J long ago expressed this thought in justifying the change in legal age of marriage which was hitherto 14 for boys and 12 for girls in England. He stated that modern thought considers it socially and morally wrong that young dependent persons should have the stress, responsibilities and sexual freedom of marriage and the physical strain of childbirth.[54]

Policy direction for protection will continue to change as nations move forward culturally, economically and scientifically. It is arguable that the absence of a minimum age for marriage is not necessarily responsible for child marriage since the drivers of “child marriage” are more socio-cultural and economic than legal.[55] Besides, it has been argued that a bench mark age of marriage ignores the issues of autonomy and agency of adolescents in relation to their sexuality and reproduction. This is in addition to the evolving capacity ideal.[56]Furthermore, such bench mark age may have little to do with attitudes towards sexual behaviour. It will then be incongruous to equate marriage with sexuality or reproduction. By social observation, the sexual behaviour of adolescents varies. Some choose to refrain from sexual intercourse because they subconsciously or mentally believe they are immature. This is an individual conviction that may be influenced by religion, culture or environment (parenting). The parentally-caged adolescent may desist because of fear of reprisals or rejection by parents on whom he/she depends economically. The parentally-independent adolescent (sometimes because of being out at school) exercises freedom of decision making regarding sexual behaviour. This could be one reason for the flexible approach in the law of age of marriage seen in a number of countries. Furthermore, such flexibility may be indicative that states appreciate that the marriage institution is complex in the social and cultural world. For example, with regards to consent, states permit a child’s incapacity to be supplemented or supported by that of a responsible adult. Another local reality is that decisions regarding marriage even for majors are often made on a family platform. Parents and relatives usually have a strong voice in the “eligibility for marriage” decision and their approval is sometimes critical. With regards to psychological immaturity or inexperience, states understand that marriage is an institution comprised of other persons beyond the two parties who often provide support.  Wealthy nations support the married with a well-developed social security system. While the health hazards are real, a rigid law on age of marriage may not prevent those. Health hazards are caused, not by marriage itself but by copulation and attendant results such as pregnancy. Law cannot control sexual behaviour since it is a usually private activity.[57] Lowe and Douglas note that while marriage by young persons has reduced in England, “sexual experience among [them] has increased enormously.”[58] This could also be said of other jurisdictions. Using just an age of marriage policy or law may likely be desultory particularly in customary settings where child marriage often occurs. It appears that states therefore prefer the law in this area to be flexible despite the strong human rights arguments against marriage by persons who are regarded as minors.[59]

Interestingly the CEDAW/CRCHP except “a marriage of a mature, capable child below 18 years of a marriage...in exceptional circumstances provided that the child is at least 16 years of age and that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the evidence of maturity, without deference to culture and tradition.”[60] This is a hypocritical but welcome position considering the extremely high figures of maternal morbidity and mortality rates they cite.[61] Again, the Malawian specification is made subject to section 22 of the country’s constitution which permits persons aged 15 to 18 to marry subject to obtainment of parental consent.[62] The change in the law in England only increased the minimum age for marriage to 16 nearly 90 years ago.[63] Even though Australia defines a minor as a person who has not attained the age of 18[64] and pegs “marriageable age” at 18[65] a Judge can authorise the marriage of a person aged 16where the circumstances are exceptional and unusual.[66]The law requires the obtainment of parental consent.[67]The New Zealand approach is more liberal. The age at which a licence to marry can be issued by the registrar of marriages is 16. However, neither does an infringement of that provision nor the failure to obtain parental consent void a marriage.[68]

Most states in the United States of America prescribe the age of 18 as the age where parental or other consent will not be required for a valid marriage.[69] However, exceptions have been created for special circumstances requiring parental or judicial approval for persons who are as low as 14 years of age and indeed any age at all.[70]Before 2015 in Spain, the Minister of Justice may remove the age impediment for a minor older than 14 to enable him marry.[71] This age has now been increased to 16.[72] Where the minor is “emancipated” he can marry.[73]The views on the position in Ghana are ambivalent. One view is that persons less than twenty one must obtain written parental consent except widowers and widows.[74] A contrary view holds that the Ghanaian Matrimonial Causes Act 1971 applies, leaving the present age of consent at 14 for males and 12 for females.[75] In South Africa, the Minister of the Interior may permit a boy under the age of 18 and a girl under the age of 16 to marry where he considers such marriage desirable.[76] For those between 18 and 21 years of age, parental consent is required; and where a parent refuses to give consent, the commissioner of child welfare may grant consent. Minors under this provision do not include divorcees, widows and widowers even if they are less than 21.[77]

In spite of the flexibility in age stipulations in these jurisdictions, there are safeguards through imposition of lower age boundaries in some cases and official intervention/evaluation in other cases; and marriage will usually be permitted only in exceptional circumstances. An important outcome in these jurisdictions will likely be that only older children (mature/emancipated minors) who can participate in marriage-formation decisions are permitted to marry. This is protectionist. The 1999 Constitution, section 17 (3)(f),mandates the state to direct its policy towards ensuring that children and young persons are protected against any exploitation whatsoever, and against moral and material neglect. Leaving the age of marriage law at large will create opportunities for abuses. Socio-cultural marriage practices could harm them: younger children may be subjected to the rigours of marriage to their detriment. This is particularly significant in Nigeria where the drivers of early marriage are socio-economic and cultural. It is therefore needed to implement the protection agenda of the 1999 Constitution in the marriage context. A mandatory uniform minimum age sends a message that child marriage is unacceptable. Such a message will be strengthened where the prohibition is accompanied by penal sanctions as the CRA has done. Apart from the problem of enforcement, an issue is how this prohibition can be achieved universally in a federal state with a large number of (sometimes, conflicted) ethnic, social, cultural and economic interests in the age of marriage question. Nwauche recommends a “negotiated consensus”[78]; but how will such consensus be reached?

There is little doubt that Children’s lives are to a considerable extent shaped and affected by social-legal policy[79]and the polity is recognizing that they have inherent value as individuals with separate legal policy identity in their own right;[80] and this should not be negated by subsuming them within the term “family.”[81]Nwauche contends, rightly, that absence of statutory protection of children is not fatal for their human rights protection since the extant Bill of Rights in Part IV of the 1999 Constitution can be utilized to protect them from child marriage.[82]While this approach is plausible and underpins a resolution of the age of marriage question, it represents a piecemeal approach and interpretations/applications may still be skewed by cultural and even religious preconceptions of high court judges who will have to deal with these provisions in the child marriage context. Such preconceptions may prevent the broader normative content of applicable human rights from being extended to the child marriage context. This writer believes that a better approach to achieve Nwauche’s negotiated consensus is through constitutional (as opposed to a statutory) specification.[83] While age of statutory marriage remains a federal subject within the legislative competence of the federal parliament, all local government units (and even sub-units) are represented in that institution – making for a viable forum for any “negotiation.” Such specification would bind all interests and should follow the Kenyan pattern under its uniform Marriage Act 2014 by identifying the various types of marriage to which the age limitation would apply.[84]Any constitutional age stipulation should not be rigid given that it is important, as rightly pointed out by Atsenuwa, to balance such stipulation with the “autonomy and agency of adolescents in relation to their sexuality and reproduction.”[85]There should be a corner for exceptional circumstances safeguarded for qualified children through official (judicial) intervention and evaluation of situations to determine whether the best interests of the child will be best served by allowing the child to proceed with the marriage.[86]

More importantly, the regime should provide a watch role for traditional institutions closest to the people such as community and clan heads. Child marriage often presents and has continued in customary settings because there is generally a carefree attitude to the provisions of the law due to the complete absence of intervening official assessment of the eligibility of potential celebrants unlike the case in statutory marriage. The tendency is to follow the customary conscience which is generally personal. There is evidence that traditional custodians of customary law often have a greater impact on peoples’ lives and cultural behaviour than bare stipulations of the law. Two examples will suffice. More than half a century ago, the Abolition of Osu (Caste) System Law 1956[87] was enacted. Nwogugu observes that the legislation “failed to alter the attitude of people in the areas where the Osu system existed”[88] There is evidence that this discriminatory attitude has continued in spite of the non-discrimination provisions section 42 of the 1999 Constitution.[89] Presently, certain community heads are issuing orders and proclamations against the institution and are becoming directly involved in enforcing the old law and this appears to be yielding the desired results.[90]Secondly, Edo State (a South-Southern state) recently passed an anti Land Speculation Law. The law had been preceded by a proscription of the unscrupulous activities of the so-called Community Development Associations by the Oba of Benin. The collaboration of state law and traditional institutions resulted in the arresting of these associations.

 

Conclusion

This paper has attempted an interpretation of laws in Nigeria which address the question of minimum age for marriage. Due to constitutional provisions, there are separate laws for different types of marriage. While the MA does not stipulate an age for statutory marriage, the view that the CRA has resolved the age question by prohibiting marriage by persons under 18 is untenable given that the CRA ranks lower to the MA in the priority of statutes in relation to the subject of marriage. The MA is the law on monogamous marriage and the 1999 Constitution assures this. The CRA’s impact on non-statutory marriage is significant; yet different states within the Federation could adopt different ages in their version of the CRA and this leaves the law in a maze.[91]While it is true that the generality of countries prefer a flexible approach in stipulating age of marriage, it is desirable to resolve the question to protect particularly younger children from abusive customs that may harm them in the marriage context. It is also desirable that the rights of older children to make decisions regarding marriage be protected. This article recommends a constitutional stipulation of age of marriage that provides a watch role for traditional custodians of customary law as the viable means to overcome the legal challenges posed by multiple marriage systems and Nigeria’s federal legislative structure and curb child marriage. The positive message to be sent by such an age stipulation will reinforce non-law efforts to achieve the 2030-bound child marriage aspect of Sustainable Development Goal 5.

 

 

 

 

 

 

 

References

Books and Chapters in Books

Ahwireng-Obeng F, Contemporary Principles of Family Law in Ghana (Typewell Ventures 2015)

Atsenuwa A, ‘Promoting Sexual and Reproductive Rights Through Legislative Interventions: A Case Study of Child Rights Legislation and Early Marriage in Nigeria and Ethiopia’ in Charles Ngwena & Ebenezer Durojaye (eds) Strengthening the Protection of Sexual and Reproductive Health Rights in the African Region through Human Rights (PULP 2014) 279

Attah M, Family Welfare Law in Nigeria (Ambik 2016)

Chianu E, ‘Age of Marriage and the Section 29(4) Constitution Debate: Dispelling Misconceptions’ in Council of Legal Education-Nigerian Law School (ed), Fifty Years of Legal Education in Nigeria (CSS Sterling, 2013), 347

Daniel P and Ivatts J, Children and Social policy (Macmillan 1998)

Harris-Short S, Miles J and George R, Family Law Text, Cases and Materials, (3 edn. OUP 2015)

Lowe N and Douglas G, Bromley’s Family Law, (11thedn, OUP 2015)

Nwogugu IE, Family Law in Nigeria (3rdedn, Heinemann 2014)

Offei WE, Family Law in Ghana (4th edn, Offei 2014) 70-71 123

Ogbu ON, Modern Nigerian Legal System (CIDJAP Press 2007)

Onokah MC, FamilyLaw (Spectrum 2003)

Osondu A, Modern Nigerian Family Law and Practice (Printable Publishing, 2012)

Tahirih Justice Centre, Understanding State Statutes on Minimum Marriage Age and Exceptions, 2-50

Ukwuoma A, Child Marriage in Nigeria: The Health Hazards and Socio-Legal Implications  (X-Raying the Human Rights and Development Issues in Early Marriage) (Lulu Press 2014)

 

 

Articles

 

Agbede IO, ‘Recognition of Double Marriage in Nigeria’ (1968) 17 ICLQ 735

Attah M, ‘Divorce in Nigeria’s Dual Marriage System: Did Jadesimi v Okotie-Eboh Rest the Issue?’ (2016) 2(1)  Lead City University Law Journal 1

Braimah TS, ‘Child marriage in Northern Nigeria: Section 61 of Part I of the 1999 Constitution and the Protection of Children Against Child Marriage’ (2014) 14 AHRLJ 481

Foster HH &Freed DJ, “A Bill of Rights for Children” (1972) 6 Family Law Quarterly (1972)  343

Godswill J, ‘Adolescents’ Sexual and Reproductive Health Challenges in Northern Nigeria: Road map to Effective Interventions’ (2014) 24 International Letters of Social and Humanistic Sciences doi:10.18052/www.scipress.com/ILSHS.24.1

Kaganas F and Diduck A, Incomplete Citizens: Changing Images of Post-Separation Children’ (2004) 67(6) The Modern Law Review 959

King M, ‘Children’s Rights as Communication: Reflection on Autopoietic Theory and the United Nations Convention’ (1994) 57(3) The Modern Law Review 385

Kolawole AKA, ‘Validity and Effect of ‘Double-Deck Marriages’ in Nigeria’ (2009) OOULJ 1

Nwauche ES, ‘Child Marriage: (Il)Legal and (Un)Constitutional?’ (2015) 15 AHRLJ 421

Olokooba SM, ‘Customary Law and Statutory Marriages Between Same Parties: Wither Nigerian Law’ (2010) 1(1) UBJPPL 303

Omobuwa O, Asekun-Olarinmoye EO and Olajide FO ‘Knowledge and Perception of Reproductive Health Services among in-School Adolescents in Ile-Ife, Osun State, Nigeria’(2012)3(7) Journal of Medicine and Medical Sciences 481

Osadolor FO and Enabulele AO, ‘Dual Marriage Status in Nigeria’ (2007) 109-160 IFL 13

Tolstoy D, ‘The Conversion of a Polygamous Union into a Monogamous Marriage’ (1968) ICLQ 721

Tom DF, ‘Dissolution of Customary and Statutory Marriage ‘by a ‘Single Stroke’’ (2002) 1(1) BSULJ 118

 

 

Cases

Amobi v Nzegwu [2014] 2 NWLR (Pt 1392) 510

Bassey-ItaOkon v. Administrator-General of Cross-River State [1992] 6 NWLR (Pt 248) 473

Ezeaku v Okonkwo [2012] 4 NWLR (Pt. 1291) 529

Hyde v. Hyde 1866 1 P & D 183

Jadesimi v Okotie-Eboh(1996) 35 LRCN 164; (1996) 2 NWLR (Pt 429) 128

Motoh v Motoh [2011] 16 NWLR (Pt 1274) 474

Ohochuku v Ohochuku (1960) 1 WLR 183, (1960) 1 All ER 253

Pugh v Pugh [1951] P. 482 at 492

Taiga v Moses-Taiga [2012] 10 NWLR (Pt 1308) 219

Udeze-Nwannia v. Udeze-Nwannia 2013 EWCA Civ. 725

Ugboma v Morah (1940) 15 NLR 78

Usman v Umaru [1992] 7 NWLR (Pt 254) 277

Williams v Williams [1987] 2 NWLR (Pt 54) 66

 

Constitutions

Constitution of the Federal Republic of Nigeria 1999

 

Statutes

Abolition of Osu (Caste) System Law 1956 Cap 1 Laws of Anambra State 1991

Abolition of Osu (Caste) System Law 1956 Cap 1 Laws of Enugu State 2004

Age of Customary Marriage Law Cap 5 Laws of Rivers State 1999 s 2(1)

Age of Customary Marriage Law, Cap A5 Laws of Bayelsa State 2006

Age of Marriage Act 1929 (England)

Age of Marriage Law 1956 Cap 6 Laws of Eastern Nigeria S

Child’s Rights Act 2003 Cap C50 Laws of the Federation of Nigeria 2011

Civil Code (Spain)

Compulsory, Free Universal Basic Education Act 2004 Cap C52 Laws of the Federation of Nigeria 2011)

Customary Marriage (Special Provision) Law, Cap 33 Laws of Enugu State

Girl-Child Marriages and Female Circumcision or Genital Mutilation Law No. 2 2000 (Cross-Rivers State)

Harmful Traditional Practices Against Women and Children Law No. 10 2001(Ebonyi State)

Infant Relief Act 1874

Marriage Act 1884-1885 Cap 127 Laws of Ghana

Marriage Act 1914 Cap M7 Laws of the Federation of Nigeria 2011

Marriage Act 1949 (England)

Marriage Act 1955 (NZ)

Marriage Act 1961, No. 25 of 1961 (South Africa

Marriage Act 2014 (Kenya)

Marriage, Divorce and Custody of Children Adoptive Bye-Laws Order 1958, W.R.L.N

Matrimonial Causes Act 1970 Cap M7 Laws of the Federation of Nigeria 2011

Matrimonial Causes Act 1973 (England)

Native Authority (Declaration of Biu Native Marriage and Custom) Order N.A.L.N 9 of 1964

Native Authority (Declaration of Borgu Native Marriage and Custom) Order N.A.L.N 52 of 1961

Native Authority (Declaration of Idoma Native Marriage and Custom) Order N.A.L.N 63 of 1959

Native Authority (Declaration of Tiv Native Marriage and Custom) Order N.A.L.N 149 of 1955

Reproductive Rights of Women Law No. 7 2005 (Anambra State)

Newspapers

Ezemalu B, “Nigeria’s Child Rights Act – Non Functional, Activists Say” PremiumTimes, (2012) available at https//www.m.premiumtimesng.com/news/161510 accessed 19/9/2014.

 

Reports/Instruments

 

Law Commission Report No. 16 (Malawi) 2015

UNESCO The State of Education in Nigeria (Excellence Systems 2000)

United Nations Statistics Division, Department of Economic and Social Affairs “Millenium Development Goals Indicators” available at www.unstat.un.org , accessed 25 August 2015.

UNICEF, “Child Rights and Participation” available at http://www.unicef.org/nigeria/children_1938.html accessed 19/9/2014

 

 

Websites

“Ending the Osu Caste System in Igboland” Vanguard (editorial) 19 November 2018 available at  https://www.vanguardngr.com/2018/11/ending-the-osu-caste-system-in-igboland/ accessed 8/2/19

 “Minimum Marrying Age in Spain Raised from 14 to 16” available at http://www.abc.net.au/news/2015-07-24/spain-raises-marriage-age-from-14-to-16/6645476 assessed 2/28/2017

 

 

 

 

 

 

 

 

 

 

 

 



[1] Cap C50 Laws of the Federation of Nigeria 2011(CRA)

[2] The Statutes include the Child’s Rights Act 2003 Cap C50 Laws of the Federation of Nigeria, 2011 (Section 5); the Marriage Act 1914 Cap M7 Laws of the Federation of Nigeria 2011 and the Matrimonial Causes Act 1970 Cap M7 Laws of the Federation of Nigeria 2011(Section 4) , Age of Customary Marriage bye-laws in some states and certain anti-gender discrimination and anti-violence laws in some states (Section 6)

[3] Nigeria operates a plural legal system. Apart from its federal structure consisting of the federal (central), state and local governments, it has a multiplicity of customary laws applicable to different areas of the country.

[4] Cap M6 Laws of the Federation of Nigeria 2011 (MA)

[5] IE Nwogugu, Family Law in Nigeria (3rdedn, Heinemann 2014) 4

[6]For differing views on this see ON Ogbu, Modern Nigerian Legal System (CIDJAP Press 2007) 91-92; Ajuzie Osondu, Modern Nigerian Family Law and Practice (Printable Publishing, 2012) 72-74

[7] The Constitution of the Federal Republic of Nigeria 1999 (CFRN), Second Schedule, Part I Item 61. Also see the distinction drawn by Bello CJN in Usman v Umaru [1992] 7 NWLR (Pt 254) 277

[8] MA 1914, s 35

[9] See Dimitry Tolstoy, ‘The Conversion of a Polygamous Union into a Monogamous Marriage’ (1968) ICLQ 721.

[10] Described as the “voluntary union for life of one man and one woman to the exclusion of all others”: Hyde v. Hyde 1866 1 P & D 183.

[11] Infant Relief Act 1874; Infant Laws of States created out of the former Western Region of Nigeria, s 2

[12] By 2012, 24 states had adopted the Act as state laws even though implementation has been slow: Ben Ezemalu, “Nigeria’s Child Rights Act – Non Functional, Activists Say” PremiumTimes, (2012) available at https//www.m.premiumtimesng.com/news/161510 accessed 19/9/2014. Also see, UNICEF, “Child Rights and Participation” available at http://www.unicef.org/nigeria/children_1938.html accessed 19/9/2014. These states include Abia, Akwa-Ibom, Anambra, Bayelsa, Benue, Cross-River, Delta, Ebonyi, Edo, Ekiti, Imo, Jigawa, Kogi, Kwara, Lagos, Nassarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Taraba. It appears that the list remains the same today. 

[13] Nonetheless, the CRA 2003, ss 22 and 23expressly prohibits and criminalises child betrothal: CRA, ss 22(2) & 23 Where the parties are of age, parental consent is unnecessary: Ugboma v Morah (1940) 15 NLR 78.

[14] The Constitution of the Federal Republic of Nigeria 1999 (CFRN), Second Schedule, Part I Item 61

[15] This is the Federal or central legislature comprising of two Houses: the Senate and the House of Representatives

[16] CFRN s 4 (3) and (5)

[17] MA ss. 35 & 47

[18] MA s 11

[19] MA ss. 35 & 39

[20] Matrimonial Causes Act 1970 Cap M7 Laws of the Federation of Nigeria 2011 (MCA) s 3(1)(a). Amobi v Nzegwu [2014] 2 NWLR (Pt 1392) 510 547; where a party requests a High Court to make a presumption of her customary law marriage by repute or cohabitation while the other party is also a party to a subsisting statutory marriage, the court is being asked to proceed on an illegality: Taiga v Moses-Taiga [2012] 10 NWLR (Pt 1308) 219 251; Ezeaku v Okonkwo [2012] 4 NWLR (Pt. 1291) 529; Motoh v Motoh [2011] 16 NWLR (Pt 1274) 474

[21] MA s 35

[22] For varying views on the relationship between the two marriages at the point of divorce see, I Olu Agbede ‘Recognition of Double Marriage in Nigeria’ (1968) 17 ICLQ 735; FO Osadolor and AO Enabulele ‘Dual Marriage Status in Nigeria’ (2007) 109-160 IFL 13; AKA Kolawole ‘Validity and Effect of ‘Double-Deck Marriages’ in Nigeria’ (2009) OOULJ 1; SM Olokooba ‘Customary Law and Statutory Marriages Between Same Parties: Wither Nigerian Law’ (2010) 1(1) UBJPPL 303; DF Tom ‘Dissolution of Customary and Statutory Marriage ‘by a ‘Single Stroke’’ (2002) 1(1) BSULJ 118; Nwogugu (n 3) 81-83. Also see Ohochuku v Ohochuku (1960) 1 WLR 183, (1960) 1 All ER 253; Jadesimi v Okotie-Eboh(1996) 35 LRCN 164, (1996) 2 NWLR (Pt 429) 128; and see generally, Michael Attah, ‘Divorce in Nigeria’s Dual Marriage System: Did Jadesimi v Okotie-Eboh Rest the Issue?’ (2016) 2(1)  LCULJ1 and the decisions in Bassey-ItaOkon v. Administrator-General of Cross-River State 1992 6 NWLR Pt 248 473; Udeze-Nwannia v. Udeze-Nwannia 2013 EWCA Civ. 725

[23] This disposition may be anchored on the recognition of the ethnic, cultural and religious diversity of the country. For example section 15(3) of the 1999 Constitution provides for the need to encourage “inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic association or ties; and promote or encourage the formation of associations that cut across ethnic, linguistic, religious and or other sectional barriers” as one of the fundamental objectives and directive principles of state policy. Furthermore the state is obligated to protect, preserve and promote the Nigerian cultures which enhance human dignity: s 21 of the 1999 Constitution.

[24] In order of priority the consent should be obtained from either a father, mother or guardian (where both parents are dead, of unsound mind or absent from Nigeria. Indeed the MA 1914, s 20 requires that the parent or guardian must be resident in Nigeria. 

[25] Namely a governor, judge of the High Court or any officer of or above the rank of assistant secretary may give consent.

[26] See MA, s 33(2) and (3)

[27] MA, s 48

[28] MA, ss.18 and 48

[29] Cap M7 Laws of the Federation of Nigeria 2011(MCA)

[30] The CRA is seen as Nigeria’s implementation of the United Nations Convention on the Rights of the Child 1989 (CRC). It therefore follows the CRC’s age of majority floor of 18 years.

[31] It further punishes child betrothal (s.22) and promotion of child marriage or betrothal: s. 23

[32] “Marriage” is not defined in the Act and the Act does not make any express distinction between different types of marriages. Furthermore, the context of the provisions in ss 21 -23 points to this interpretation.  They speak of “child betrothal.” This is a phenomenon known primarily to customary law in practice.

[33]Nwogugu (n 5) 38, 158

[34] The affected subjects are (a) children; (b) adoption, fostering, guardianship and wardship; (c) approved institutions, remand centres and borstal institutions; and (d) any other matter pertaining to children already provided for in this Act. (2) In the least, this provision is moot and at worst unconstitutional because it tends to rob state legislatures of their jurisdiction over matters (as listed) they are entitled to make laws: see s 4 of the 1999 Constitution.

[35] Emeka Chianu ‘Age of Marriage and the Section 29(4) Constitution Debate: Dispelling Misconceptions’ in Council of Legal Education-Nigerian Law School (ed), Fifty Years of Legal Education in Nigeria (CSS Sterling, 2013), 347, 351-352; Enyinna S Nwauche ‘Child Marriage: (Il)Legal and (Un)Constitutional?’ (2015) 15 AHRLJ 421, 422; Tim S Braimah ‘Child marriage in Northern Nigeria: Section 61 of Part I of the 1999 Constitution and the Protection of Children Against Child Marriage’ (2014) 14 AHRLJ 481This represents a second or opposite view. This later view is shared by this writer and accords more with the provisions of Nigeria’s federal constitution. 

[36] CFRN 1999, s 7(1)

[37] CFRN 1999, s 299. The FCT is the Capital of the Federation and the seat of the Government of the Federation. It is not one of the 36 federating states. Accordingly, it does not have a governor or a House of Assembly. Instead, the executive and legislative powers are vested in the President and the National Assembly respectively: CFRN 1999, s 299 para a

[38] MA 1914, ss.7-27

[39] Section 6 below will deal with the applicability of the CRA 2003and state versions of same in the federating states

[40] CFRN s 4 (2)

[41] CFRN s 299

[42] CFRN s 4 (5)

[43] For a list of these states, see n 12 above

[44] In at least one state (Jigawa), the state legislature declined to retain the age 18 under its CRL preferring “puberty” as the “age” of marriage. See Ayodele Atsenuwa ‘Promoting Sexual and Reproductive Rights Through Legislative Interventions: A Case Study of Child Rights Legislation and Early Marriage in Nigeria and Ethiopia’ in Charles Ngwena& Ebenezer Durojaye (eds) Strengthening the Protection of Sexual and Reproductive Health Rights in the African Region through Human Rights (PULP 2014) 279 296

[45] Reproductive Rights of Women Law No. 7 2005 (Anambra State) s 3; Harmful Traditional Practices Against Women and Children Law No. 10 2001(Ebonyi State) s 3; Girl-Child Marriages and Female Circumcision or Genital Mutilation Law No. 2 2000 (Cross-Rivers State); Age of Customary Marriage Law Cap 5 Laws of Rivers State 1999 s 2(1)

[46] Customary Marriage (Special Provision) Law, Cap 33 Laws of Enugu State, ss.3 and 5; Age of Customary Marriage Law, Cap A5 Laws of Bayelsa State 2006 and the old Age of Marriage Law 1956 Cap 6 Laws of Eastern Nigeria See Nwogugu (n 5) 60-61

[47] See for example, Marriage, Divorce and Custody of Children Adoptive Bye-Laws Order 1958, W.R.L.N of 1958, s 7, applicable in the States created out of the Former Western Region of Nigeria; Native Authority (Declaration of Idoma Native Marriage and Custom) Order N.A.L.N 63 of 1959; Native Authority (Declaration of Tiv Native Marriage and Custom) Order N.A.L.N 149 of 1955, s 2(a); Native Authority (Declaration of Borgu Native Marriage and Custom) Order N.A.L.N 52 of 1961; Native Authority (Declaration of Biu Native Marriage and Custom) Order N.A.L.N 9 of 1964: s 2(1)(a)

[48] CFRN 1999, s 4

[49] CFRN 1999, s 7. Braimah identifies the conflict between the practice of Islam (protected by s 38 of the 1999 Constitution) and outlawry of child marriage under the CRA. However, based on s 45 of the Constitution, he resolves this conflict in favour of the CRA: “…for the sole purpose of protecting the rights of children against a social evil such as child marriage, it is justifiable to restrict the freedom to practise a component of Islam such as child marriage, which infringes the rights of children…. The Islamic practice of child marriage inhibits children from making independent decisions about marriage, which may lead to their emotional, physical and psychological harm. Therefore, if such a practice may harm a child, the right to freedom of religion becomes limited.” Braimah (n 35) 481-482. We agree.

[50]Margareth C Onokah, Family Law (Spectrum 2003) 124.

[51] See the Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, 14 November (2014) 7

[52] See the Marriage, Divorce and Family Relations Bill No. 5 2015 s 14

[53] Now, 2030 Agenda for Sustainable Development (comprising of 17 Sustainable Development Goals including quality education: Goal 4 – “Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all”). See Law Commission Report No. 16 Published 30th January 2015 reproduced in Malawi Gazette Supplement, Marriage, Divorce and Family Relations Bill 2015 Memorandum, B. No. 5  iv. The education argument may hold little water in Nigeria. Basic education (education up to junior secondary school - Compulsory, Free Universal Basic Education Act 2004 Cap C52 Laws of the Federation of Nigeria 2011) is now usually completed by 12 to 14 years of age and senior secondary school (high school) by 16 years of age. This is for those ready and able to attend school. For many, education is a far cry. The 6th July 2015 indicators released by the United Nations show that the literacy rates of young persons aged 15-24 years stood at 66. 4 percent by 2008; and the percentage of pupils reaching the last grade of primary school was 65.7 percent by 2010: United Nations Statistics Division, Department of Economic and Social Affairs “Millenium Development Goals Indicators” available at www.unstat.un.org , accessed 25 August 2015. Furthermore, the problems identified in UNESCO The State of Education in Nigeria (Excellence Systems 2000) remain.

[54] Pugh v Pugh [1951] P. 482 at 492

[55] See Atsenuwa (n 43) 279 for a conceptual exposition of early marriage. Braimah also identifiies the impact of poverty, culture (seen and used as a method for preserving the virtue of girls, protecting girls from promiscuity and preserving family honour).and religion: Braimah (n 34) 483-484

[56] Ibid, 292-293

[57] See O Omobuwa, EO Asekun-Olarinmoye and FO Olajide ‘Knowledge and Perception of Reproductive Health Services among in-School Adolescents in Ile-Ife, Osun State, Nigeria’(2012)3(7) Journal of Medicine and Medical Sciences 481, 485 ( in a study of 392 unmarried in-school adolescents  aged 14 (122) and 15 (270), the authors found that 39.5 percent were in a relationship, 18 percent of the 14 year olds had had sexual intercourse experience  and nearly a third (28.9 percent ) of the 15 year olds had experienced sexual intercourse. The authors reported that “a third of respondents did not see anything wrong with pre-marital sex because they perceived it as normal, simply fun or that it [did] not matter.” See also, James Godswill ‘Adolescents’ Sexual and Reproductive Health Challenges in Northern Nigeria: Road map to Effective Interventions’ (2014) 24 International Letters of Social and Humanistic Sciences doi:10.18052/www.scipress.com/ILSHS.24.1

[58] Nigel Lowe and Gillian Douglas, Bromley’s Family Law, (11thedn, OUP 2015) 44-45

[59] It is worth mentioning that Kenya’s recent uniform law on marriage and matrimonial causes took a rigid approach to the age of marriage question. Under s 4 of the Marriage Act 2014, “A person shall not marry unless that person has attained the age of eighteen years.” The rule applies to the five categories of marriages recognized under s 6 of the Act: Christian, Hindu, Civil, Customary and Islamic.

[60] See the Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices (November 2014) 14 7

[61] According to the Committee, pregnancy-related deaths are the leading cause of mortality for girls between 15 and 19 years of age. See also, Armstrong Ukwuoma, Child Marriage in Nigeria: The Health Hazards and Socio-Legal Implications  (X-Raying the Human Rights and Development Issues in Early Marriage) (Lulu Press 2014)

[62] See the Law Commission Report (Malawi) 2015 iv

[63] Marriage Act 1949, ss 2 & 3; originally enacted by the Age of Marriage Act 1929 ; Matrimonial Causes Act 1973, s. 11. See Sonia Harris-Short, Joanna Miles and Rob George, Family Law Text, Cases and Materials, 3 ed. (OUP 2015) 66 74

[64] Marriage Act 1961, s 5

[65] Marriage Act 1961, s 11

[66] Marriage Act 1961 s 12, see Lowe & Douglas, 44

[67] Marriage Act 1961, s 13

[68] Marriage Act 1955 (19 August 2013 Reprint) ss 17 & 18

[69] Except Mississippi (21) and Nebraska (19)

[70] See, Tahirih Justice Centre, Understanding State Statutes on Minimum Marriage Age and Exceptions, 2-50 (Based on compilations of state laws on marriage age by the National Conference of State Legislatures, September 2015. Verified, expanded and updated by the Tahirih Justice Center (www.tahirih.org) with pro bono assistance from Hogan Lovells US LLP, November 2016)

[71] Civil Code (Spain) art 48. This is so even though the legal age is 18 years.

[72]“Minimum Marrying Age in Spain Raised from 14 to 16” available at http://www.abc.net.au/news/2015-07-24/spain-raises-marriage-age-from-14-to-16/6645476 assessed 2/28/2017

[73] Civil Code (Spain) art 46. Emancipation could be by concession (by parents) through a public deed or by a judge. applies to a minor who is up to 16 years

[74] See Frederica Ahwireng-Obeng, Contemporary Principles of Family Law in Ghana (Typewell Ventures 2015) 73-74 Citing Marriage Act 1884-1885 Cap 127 Laws of Ghana s 59.

[75] William E Offei, Family Law in Ghana (4th edn, Offei 2014) 70-71 123

[76] Marriage Act 1961, No. 25 of 1961, s 26(1)

[77] Ibid, ss. 24 & 25

[78]Nwauche (n 35) 421

[79] P Daniel and J Ivatts Children and Social policy (Macmillan 1998)  1.

[80] Ibid, 8-9

[81] HH Foster & DJ Freed “A Bill of Rights for Children” (1972) 6 Family Law Quarterly 343, 347; M King Children’s Rights as Communication: Reflection on Autopoietic Theory and the United Nations Convention’ (1994) 57(3) The Modern Law Review 385, 388; F Kaganas and A. Diduck ’Incomplete Citizens: Changing Images of Post-Separation Children’ (2004) 67(6) The Modern Law Review, 959

[82] He points particularly to ss 34 (respect for the dignity of person and freedom from torture or to inhuman or degrading treatment); 35(1) (right to personal liberty); 37 (right to private and family life); and 40 (right to peaceful assembly and association) as veritable provisions to protect children from child marriage: at 426. This is opposed to Braimah’s views that “…children may have no rights in states which are yet to enact the law and, subsequently, if child marriage is practised, it is not an offence.”: Braimah (n 35) 481. He however examines other regional instruments such as the African Charter of the Rights and Welfare of the Child 1990 which if domesticated will be useful in protecting children against child marriage: Braimah (n 35) 476-479

[83] Braimah makes this recommendation but only for women: Braimah  (n 35) 487

[84] see n 59 above

[85]Atsenuwa (n 44) 279

[86]  s 1 of the CRA introduced the Best interest of the child (BIOC) ideal  in the form used in international children’s rights instruments. Hitherto, it had been consistently applied in divorce situations in Nigeria under Part IV of the MCA 1970 in the form of “interest of children as paramount consideration” -  s 71.  Williams v Williams [1987] 2 NWLR (Pt 54) 66; or as “the welfare of the child as the first and paramount consideration”: s 24 of the Infant Laws of some states. See generally Michael Attah Family Welfare Law in Nigeria  (Ambik 2016)

[87] Cap 1 Laws of Anambra State 1991; Cap 1 Laws of Enugu State 2004

[88]Nwogugu, Family Law, 65

[89] Ibid 72. The section provides that “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.” (previously, s 39 of the 1979 Constitution)

[90] “Ending the Osu Caste System in Igboland” Vanguard (editorial) 19 November 2018 available at  https://www.vanguardngr.com/2018/11/ending-the-osu-caste-system-in-igboland/ accessed 8/2/19

[91] This flexibility is also seen in the attitude to age of majority (civil and criminal responsibility) for different areas of law. `Chianu gives eleven examples from different laws to demonstrate that the “singsong age of eighteen is not of catholic application” when it comes to age of majority. Some of the subject matters include membership of company (any age), acquiring interest in land (any age), apprenticeship – 12 years; criminal responsibility -12; termination of family head’s obligation to provide necessaries – 14; termination of a master’s obligation to provide basics for apprentice -16; employment – 16; voting -18, contract – 21; contract for necessaries (any age): Chianu (n 34) 350-351