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Matters Arising From The Seeming Decision Of The Nigerian Senate To Endorse ‘Child Rape’ Legislation By Ijabla Raymond

July 22, 2013

Following the recent brouhaha caused by the failure of the Nigerian Senate to delete Section 29 (4b) of the 1999 Constitution last week, it has become necessary to dissect and present the issues in a simple concise manner and highlight the far reaching consequences of that decision. Please bear in mind that I am not a lawyer; therefore certain depth and breadth may be lost in this article but I hope that overall, its contents are as factual as possible.

Following the recent brouhaha caused by the failure of the Nigerian Senate to delete Section 29 (4b) of the 1999 Constitution last week, it has become necessary to dissect and present the issues in a simple concise manner and highlight the far reaching consequences of that decision. Please bear in mind that I am not a lawyer; therefore certain depth and breadth may be lost in this article but I hope that overall, its contents are as factual as possible.

Sections 25-32 of the 1999 Constitution cover issues of citizenship and Section 29 in particular deals with renunciation of citizenship. It is reproduced here.

29. (1)Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation.

(2) The President shall cause the declaration made under subsection (1) of this section to be registered and upon such registration, the person who made the declaration shall cease to be a citizen of Nigeria.

(3) The President may withhold the registration of any declaration made
under subsection (1) of this section if-
(a) the declaration is made during any war in which Nigeria is physically involved; or
(b) in his opinion, it is otherwise contrary to public policy.
(4) Forthe purposes of subsection (1) of this section.
(a)"full age" means the age of eighteen years and above;
(b) any woman who is married shall be deemed to be of full age.

The Nigerian Senate voted and removed Section 29 (4b). Senator Yerima became irate asserting that the deletion amounted to contravention of Sharia Law (which he affirms supersedes the Nigerian Constitution) and he demanded a re-vote. He managed to marshal enough support from mainly his fellow Muslim senators to re-instate Section 29 (4b). This was seen by the public, which had hitherto been oblivious of the existence of this clause, as an endorsement of Child Marriage leading to great media excitement.

Now, one can argue, and sensibly too, that deleting Section 29 (4b) actually diminishes the rights of women in that it takes away their right to renounce citizenship. However, it is doubtful that Yerima and his friends were fighting to protect the rights of women. This appears to be a smokescreen and it is important to tease out substance from this smokescreen. Our senators have in fact, unwittingly endorsed Child Marriage, and missed an opportunity to debate the rights of children.

Before we go any further, it is important to highlight some of the dangers of Child Marriage. Typically, girls as young as 9 years are given away in marriages to older men e.g. men in their 50’s and 60’s. These are children and therefore cannot give any informed consent. Usually, they are not given any formal education and are locked up at home as baby-making housewives. They get pregnant and develop prolonged obstructed labour, which results in vesico-vaginal fistula. This causes them to smell strongly of urine and faeces leading to social ostracism. Their husbands who decide they can no longer cope with the malodor abandon them and soon look for another child bride. As they have not been given any formal education and have depended on their husbands for sustenance, life suddenly becomes an enormous struggle for survival for both them and their many young children. These girls suffer untold medical, emotional, financial and social trauma and it appears that no one cares to speak up for them.

Let me now try and explain the legal challenges to overcoming these practices. I believe that Sharia and the Child Rights Act are key to understanding what happened during the constitution amendment in the Senate last week. The definition of a ‘child’ varies in different articles of Nigerian law (1,2). The Child Rights Act defines a child as one who is below the age of 18 years (3,4). The Federal Government of Nigeria domesticated the Child Rights Act in September 2003, and its provisions supersede all other legislations that have a bearing on the rights of the child (1,3-5). The Act prohibits Child Marriage and Child betrothals (3,4). Having been enacted at the national level, the states are expected to formally adopt and adapt the Act for domestication as state laws. This is because issues of child rights protection are on the residual list of the Nigeria constitution, giving states exclusive responsibilities and jurisdiction to make laws relevant to their specific situations. State laws inimical to the rights of the child are also to be amended to conform to the Act and the Child Rights Convention (1,2,6). Ten years since the Federal Government domesticated the Act, the following states are yet to adopt it: Adamawa, Bauchi, Borno, Enugu, Gombe, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe and Zamfara (3,7). With the exception of Enugu (and possibly Adamawa) state, all of these states have adopted Sharia Law. The Nigerian Constitution (1999) makes provision for Sharia law (sections 275 –279).

The Federal Government, not the state governments, makes law on citizenship. Therefore, fighting to retain Section 29(4b) is not only self-serving for Yerima and his friends but it also prevents conflicts with Sharia Law. Yerima has maintained that in the event of conflicts, Sharia Law supersedes the Federal Constitution (8); this position, in my opinion, is untenable for a senator of the Federal Republic of Nigeria. Nonetheless, this has gone unchallenged by the Government. Some, especially moderate muslims, insist that the senator’s interpretations of Sharia are wrong and that he uses the Islamic law for his political and selfish personal agenda. We shall leave the Sharia experts to debate the veracity of this claim and the different interpretations of the Sharia Law but it is curious that Yerima has gone largely unchallenged by these experts and the muslim community in general (8). It is easy to see why skeptics view this as an endorsement by muslims.

Therefore, this brouhaha goes beyond the renunciation of citizenships. At its very heart is the defense of religious law, which has been made to supersede federal law. Now, here is a personal opinion,which I hope does not distract from the bigger picture. Sharia may have been perfect for an Arab society 1400 years ago but our society has evolved greatly and is now far too complex and advanced to be guided by an 8th century religious manual. Yet, Sharia has been imposed on Nigerians without a referendum. The law is not codified but is based on the Quran and subject to different interpretations. The law is enforced by individuals who, arguably, do not fully understand it and sometimes take matters into their own hands. Sharia Law is enforced to variable degrees in different countries e.g. it is more relaxed in Libya. But when fully enforced, it can be barbaric e.g. stoning to death in the case of adultery, limb amputation in the case of theft (9). Sharia is the major (and perhaps the only) reason given on why the Child Rights Act has not been adopted by the northern Sharia States. It is why child marriages are likely to continue for the foreseeable future. Sexual intercourse with a child wife is deemed lawful after her first or second menstruation, regardless of what age this is attained!!. Yerima is understood to have married child brides e.g. 13 year old Egyptian girl about 3 years ago. This is the real reason why Yerima and his friends fought to retain clause 29 (4b), which states that ‘any woman who is married shall be deemed to be of full age’. Notice how this clause does not take into consideration the age of the woman unlike clause 29(4a), which stipulates a minimum age of 18 years in consonance with the Child Rights Act.

Before I conclude, let me briefly mention some of the benefits of the Child Rights Act. Its central premise is “in every action concerning a child, whether undertaken by an individual, public or private body, institutions of service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration”. It criminalises such prevalent practices as physical abuse e.g. children witches in Calabar (10), child marriages and betrothals, child slavery, genital mutilation, forced and exploitative child labour, child prostitution, child trafficking and failure to provide basic education. It safeguards the health of the child and protects the disabled child. The fate of the Nigerian child is in the hands of Nigerian politicians and legislators but it appears that some of these individuals are not prepared to set aside their personal prejudices to protect the most vulnerable in our society.

In summary, the senate brouhaha has thrown up bigger issues that should not be overlooked. I believe it is totally valid to demand the following:
1. Domestication of the Child’s Rights Act by all states of the federation without further delay
2. The Senate should re-visit its decision and delete clause 29(4b) before the constitutional amendments are adopted
3. Where contradictions or conflicts occur, federal laws must supersede other laws at all times
4. Religion should be separated from the state

A peaceful protest has been organized for 24/7/2013 from 10am – 1pm in front of the Nigerian Embassy in London to press home these demands. Please spread the word. Nigerians are very vocal and now is the time to walk the talk. Let us stand up and defend the rights of our children!!!

Legal impediments to the implementation of CRA - 2009
An Examination Of The Child Rights Protection And Corporal Punishment In Nigeria by Iguh, NA
UNICEF fact-sheet on Nigerian CRA – August 2007
CRA– full document
5. “Trafficking in Persons (prohibitions) Law Enforcement Administration Act, which was passed into law on 14th July 2003.
The Nigerian Constitution1999

Ijabla Raymond
Medical doctor of Nigerian heritage writes from the UK

Email: [email protected]