The Senate of the Federal Republic of Nigeria (FRN) recently reviewed some of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (CFRN); section 29(4)(b) was one of such provisions. It provides that for the purpose of renunciation of Nigerian citizenship, a married woman is deemed to be of full age. Senator Ike Ekweremadu moved the House for the deletion of that provision and majority of the senators voted “aye”. However, Senator Ahmad Sani Yerima argued against the motion on the ground that such amendment would violate Islamic law, which, according to Senator Yerima, provides that any married woman is of full age. A repeat voting was demanded and the resolution was that section 29(4)(b) be retained.
So, what’s the blawg about: has the Senate endorsed child marriage? As an objective lawyer, my answer to this question is in the negative. It is my position that the recent uprising after the Senate’s Constitution review, is somewhat misplaced. To avoid being misunderstood, I do not argue that child marriage should not be condemned; rather, I argue that this campaign should not be because the Senate resolved to retain s.29(4)(b) CFRN- s.29(4)(b) CFRN deals with CITIZENSHIP and not marriage or indeed, marriageable age. Therefore, some other legal base should be relied upon for this campaign e.g. why the 2003 Child Rights Act, which clearly prohibits child marriage, is not receiving any attention. There’s rumour of a “Child Marriage Bill” (which apparently has been passed into law) but I am yet to find evidence of this “Bill” and find it hard to believe that such a contentious and sensitive Bill would go through all the stages required for the passage of a bill into law, and no-one hears about it until it has been passed (apparently); this is notwithstanding the fact that the President has to assent to such bill before it takes effect
Since the details of that House seating were made public, Nigerians have expressed disbelief, dissatisfaction, anger, etc. over the retention of that clause (s.29(4)(b) CFRN) in the Constitution. Some have even decided to file a petition to the National Assembly (NASS) concerning this matter. Although this measure is not to be laughed at or taken lightly, it is my position that it would yield little or no results. As a matter of fact and law, the online petition to the “United Nations” (UN) will not be considered by the UN because it is on an issue of a purely domestic concern and Article 2(7) of the UN Charter states clearly that the UN would not intervene in such issues; it is a reaffirmation of the doctrine of non-intervention which stems from the principle of sovereignty. Nigerians have a habit of getting excited over causes, which become abandoned at the earliest possibility e.g. campaigns such as #OccupyNaija, #LightUpNaija, etc. As my learned friend, Miss Emike Imuekemhe nicely put it, “in Nigeria, everyone wants to be an activist.” A legislative House should not reconsider a decision simply because people have taken to the streets; although they are representatives of the people, they are not expected to always give in to the whims and caprices of the people. But in this situation, it is important that the legislators pay attention and reconsider what I classify as a hasty decision to retain s.29(4)(b) CFRN. For any petition, debate, or criticism on this issue to yield fruit, Nigerians (not just the legislators) have to look at the bigger picture and consider more intricate issues as opposed to whether or not the resolution to retain s.29(4)(b) CFRN has the effect of endorsing forced marriages or underage marriage because it simply does not.
Section 29(4)(b) CFRN- A Masquerade
To kick start this discussion, I call s.29(4)(b) CFRN a masquerade. A masquerade means anything that has the quality of a “false outward show”, a “façade”, or exists “under false pretences.” Section 29(4)(b) CFRN in effect creates an automatic irrefutable presumption that any married woman is of full age whereas s.29(4)(a) CFRN clearly states that full age means eighteen years and above. As such, s.29(4)(b) CFRN creates a façade that so long as a female is married, she is of full age. It takes for granted, the fact that some married females are not women; they are children and therefore cannot be said to be of full age.
To Retain, or not to Retain s.29(4)(b) CFRN?
For those who might not actually understand what the debate at the Senate was about, please do not jump to conclusions that it was about endorsing or condemning underage marriage or forced marriage or child marriage- this is WRONG. This whole debate and the call by Senator Ekweremadu was in respect of s.29(4)(b) CFRN, which deals with the definition of full age ONLY for the purpose of renunciation of one’s Nigerian citizenship. To the best of my knowledge (and I stand to be corrected), he was not suggesting that the minimum marriageable age for Nigerians be changed to eighteen years. For the purpose of clarity, section 29 CFRN states:
(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.
(4) For the purposes of subsection (1) of this section,
- a.“full age” means the age of eighteen years and above;
- b. any woman who is married shall be deemed to be of full age (emphasis supplied).
It is a known principle of statutory interpretation that the first rule in interpreting a provision is to look at the ordinary or natural meaning of the words used- the literal rule. Another canon of statutory interpretation is to the effect that the express mention of one thing means the exclusion of others- expressio unius est exclusio alterius. Applying these principles to s.29(4)(b) CFRN, it is clear that the Constitution provides that it is only for the purpose of s.29(1) CFRN that a married female is presumed to be of full age. It is worth mentioning that s.29(4)(b) CFRN is the only provision in the CFRN that presumes that a married woman is of full age.
It is baffling to see how s.29(4)(b) CFRN being retained endorses child marriage, as some eager, hot-blooded, misinformed individuals purport to argue. I say these individuals are misinformed because it appears they have not read the actual provision of the CFRN that has caused this rancour, neither have they read the CFRN in its totality. To buttress this point, some provisions of the CFRN are worth noting:
- Section 10 CFRN: prohibition of the adoption of any religion as State religion by the Federal or a State Government;
- Section 38 CFRN- freedom of religion, including a person’s right to practice and observe his chosen religion; and
- Section 42 CFRN- the fundamental right not to be subjected expressly or practically, to any restrictions pursuant to any law in force in Nigeria, owing to the persons sex or religious beliefs (amongst others), when such restriction would not have applied if the person was not of that sex or had his/her religious beliefs.
In as much as the idea of child marriage is appalling, reprehensible, condemnable, (and all sorts of negative adjectives that come to mind), the retention of s.29(4)(b) CFRN does not amount to its endorsement. The idea that that provision of the Constitution endorses child marriage is somewhat misplaced. Other provisions of the Constitution are to blame for the legality conferred on child marriage in Nigeria.
Due to the nature of the Nigerian legal system, Nigeria has no State religion as you have in countries like Argentina, Greece, Saudi Arabia, Israel, etc. In short, having a state religion is expressly prohibited (s.10 CFRN). It therefore follows that absent a state religion, and the fact that freedom of religion is guaranteed by the CFRN as well as other international conventions to which Nigeria is a signatory, if a religion permits underage marriage and a Nigerian practices that religion, such practice should be respected. So, since Islam has no minimum marriageable age and provides guidelines for underage marriage e.g. requirement of consent from the parent(s)/guardian(s), it can be argued that such practice should be respected. However, the right to freedom of religion (s.38 CFRN) is not absolute; it may be restricted “in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom or other persons” (s.45 CFRN). So, advocates for underage marriage on grounds of freedom of religion should pay attention to s.45 CFRN. Also, advocates against child marriage should come up with cogent and convincing proposals for the restriction of a person’s right to freedom of religion, instead of making noise and soldiering around like bees.
Having established that the matter s.29(4) CFRN deals with is renunciation of citizenship, the issue to be debated is not whether or not child marriage should be prohibited- the real debate on s.29(4)(b) CFRN should be about whether a married female below the age of eighteen years should be allowed to renounce her citizenship.
First, who is a child? Although Black’s Law Dictionary defines a child to be a person that has not attained the age of majority, it is not so simple to ascertain. Different Nigerian statutes provide different age margins to suit the purpose(s) for which they are enacted e.g. Labour Act defines a child to mean a young person under the age of twelve years and a young person as one under the age of fourteen years, the Criminal Code Act provides that a person below seven years is not criminally responsible for any act or omission, the CFRN disqualifies a person below the age of eighteen from voting, under the Marriage Act, a minor is a person below the age of twenty one years, etc. More so, Nigeria is a signatory to and has ratified the United Nations (UN) Convention on the Rights of the Child (CRC), which provides in Article 1 that “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” (emphasis supplied). As stated earlier, to determine whether the person is a child under the Nigerian law applicable to the child, it varies from statute to statute. However, Article 2 of the African Charter on the Rights and Welfare of the Child simply defines a child as “every human being below the age of 18 years” and the 2003 Childs Right Act generally uses the age of eighteen as the benchmark.
Second, the notion of citizenship or nationality goes beyond being able to say “I am Nigerian.” It is far deeper than that. Citizenship/nationality has been described by the International Court of Justice in the often cited Nottebohm Case as:
“[a] legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state.”
As an author succinctly puts it:
“… nationality can no longer be determined as a personal relationship of allegiance, but rather as a legal status embracing a set of mutual rights and obligations towards a political entity fulfilling certain requirements necessary for the existence of a sovereign state.”
With these attributes of citizenship/nationality in mind, can it be said with confidence that a child understands and comprehends the notion of this bond and can come to a well-informed decision about severing ties with his/her country simply because she is married? I think not. Some might argue (and indeed rightly), that there are some children who are intelligent/smart and are able to comprehend the tenets of citizenship while there are adults who do not comprehend these issues either so, putting an age margin/cap on who can and cannot renounce his/her citizenship is somewhat artificial. In response, I would argue that citizenship is an important legal concept that goes beyond the borders of a country; it introduces other concepts and ideals, especially within international law. If an adult is unable to understand the notion of citizenship and chooses to renounce his/hers, that is a decision s/he is entitled to make and should face the consequences. If for matters such as marriage or even crossing national borders the consent of an adult is needed when a minor is involved, for something as serious as renouncing one’s citizenship it goes without saying that a minor should not be allowed to make such decision unilaterally; at best, the consent of an adult with sufficient legal nexus should be sought and obtained, such consent not to be unreasonably withheld.
Third, one has to consider the ramifications of renunciation of citizenship. Article 15 of the Universal Declaration of Human Rights (UDHR) states that everybody is entitled to a nationality and no person shall be arbitrarily denied the right to change his nationality. Although it is doubtful whether there is a natural human right to renounce nationality as claimed in a resolution by the American congress of 17 July 1868, the purpose of s.29 CFRN is to give individuals the right to renounce that entitlement to nationality. In some convoluted universe, Senator Yerima might be praised as a human rights activist, advocating for the right of a married female child to renounce her citizenship. However, what Senator Yerima and the other senators who voted for the retention of s.29(4)(b) CFRN failed to consider is that if the renouncer has no other nationality and the declaration of renunciation is duly registered, that person becomes a stateless person. In simple terms, a stateless person is a person with no nationality. As such, a stateless person owes no State any allegiance or obligation, neither is any State responsible primarily, for that person. As a result, responsibility under international law (as a default rule) shifts to the State within whose territory that person is physically present. Stateless persons do not live a life of luxury or comfort or the independence that might be imagined; they (especially women and children) become victims of trafficking, smuggling, harassment, abuse, etc. Some of them seek refugee status in other countries and end up suffering in refugee camps or secluded areas, where they are faced with harsh living conditions. It is not uncommon that women in such conditions suffer from sexual abuse and assaults. Do we really want a female Nigerian child to become a stateless person simply because she can because she is married? Does being married equip a child with the ability to face the harsh conditions and challenges of becoming stateless? Which State should be responsible for the married female Nigerian child that renounces her citizenship and thereby becomes stateless? These are few of the issues to consider before insisting that a child should be allowed to renounce her citizenship because she is married- they are as important (if not more important than) the issue of child marriage in the selfish exercise of one’s right to freedom of religion.
Fourth, s.29(4)(b) CFRN in effect, is discriminatory. After s.29(4)(a) CFRN had stated that full age means the age of eighteen and above, s.29(4)(b) CFRN comes along and says “any married woman” is of full age. This provision is thus discriminatory in two respects:
- It amounts to sexual discrimination, in that only married women are deemed to have the legal capacity to renounce their citizenship, while married men who have not attained the age of eighteen years are denied the same opportunity. In the campaign against child marriage, it should not be taken for granted that underage boys may also be married off by their parents/guardians- although female children are the usual victims, we must not lose sight of this reality. I doubt that feminist advocates for positive discrimination every contemplated/anticipated such benefits being given to women.
- It amounts to discrimination within the class of “females” as a whole in the sense that while married females under the age of eighteen years have the legal capacity to renounce their citizenship, other females of the same age are denied this right simply because they are unmarried. What is the justification for this discrimination? Is there something in marriage that automatically makes a child a woman capable of making such decisions that no-one is aware of? I do not think it is the fact that the married female child has had carnal knowledge, that she becomes of full age and thus capable of making such an important decision; if carnal knowledge is the secret, then the discrimination is still unjustified because there are children who have been sexually abused and have had carnal knowledge with men who they are not married too. Or is it child-bearing by a child wife? I do not think so either because there are child mothers who are not married. So, what is the justification?
The provisions of the Constitution and Nigerian law in general are to be applied without discrimination on the grounds of sex, or any other arbitrary ground. Where there is discrimination, it has to satisfy the requirements of legitimacy and proportionality. As such, s.29(4)(b) CFRN ought to be deleted, leaving the age threshold for renunciation of citizenship as it stands in s.29(4)(a) CFRN, which is of general application and discrimination-free.
Fifth and finally, the issue of whether a declaration of renunciation of citizenship should be registered, should be considered. Section 29 CFRN lays down the procedure for renunciation of citizenship and in subsections (2) and (3), it states that a declaration of renunciation of citizenship takes effect (in that the person ceases to be a Nigerian citizen) only after the President registers such declaration. Further, registration of such declaration made pursuant to s.29(1) CFRN may be withheld by the President only in two circumstances: if the declaration is made during any war in which Nigeria is physically involved or in his opinion, it is otherwise contrary to public policy. It therefore follows that the President has to register any declaration of renunciation unless any of those circumstances applies to the situation. Assuming the declaration is not made during time of war, can it be withheld (in the case of a child wife) on the ground that the declaration is contrary to public policy? In this context then, what public policy falls to be considered- is it the public policy to respect a person’s right to freedom of religion manifested through the practice of child marriage, or the need to have regard for international law obligations, or the need not to render a child stateless? Which public policy?
The five broad issues discussed above are few of the issues that ought to be considered when deciding whether or not to retain s.29(4)(b) CFRN, rather than the debate about whether or not a person should be free to marry a woman below the age of eighteen. If these factors are considered, I am almost certain that Senator Yerima himself would not have made the unwarranted and unfounded argument he made, that “considering 18 years as maturity age for a woman [is] against Islamic injunction.” I say his argument is unfounded because I am yet to find what part of the Constitution states “the National Assembly could not make any law that would go against Islamic religion”; the only provision I have found (and I stand to be corrected) is s.4(2) CFRN which enshrines the power of the NASS to “make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution” (emphasis supplied). Item 61 of Part I of the Second Schedule (Exclusive Legislative List) allows the NASS to make laws on the “formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto” (emphasis supplied). On a clear reading of these provisions, the meaning is simple- NASS cannot legislate on any matter concerning Islamic or Customary Law marriages. How then, does s.29(4)(b) CFRN affect the formation of an Islamic marriage, including matrimonial causes related thereto? As explained earlier, the age restriction in that provision is in the context of renunciation of citizenship; that provision as it stands, has no effect on the validity or any of the nuances of matrimonial issues. Its deletion does not affect a Muslim’s right to marry an underage child in a manner permitted in Islam.
More so, the issue of citizenship and other matters related to it are issues of Federal law, not state law or subsidiary law such as Islamic or Customary Law. In the area of personal law, the CFRN tries to accommodate the nuances of Islamic and Customary law and even has Courts established to ensure that they are respected. It is therefore my opinion that in issues such as citizenship, which have a federal as well as international character, such considerations should have no place especially when no right is being threatened.
To sum up, the recent unrest or agitation against child marriage appears to be attributed to the Senate’s resolution to retain s.29(4)(b) CFRN. The foundation for this campaign is thus misplaced, despite the fact that it is a campaign for a good cause. This is simply because that provision of the CFRN does not endorse child marriage as (ironically) proponents for and against child marriage purport to argue in light of the recent Constitutional review. That provision deals with the right of a Nigerian to renounce his/her Nigerian citizenship, and nothing more. More so, it is hard to see how, from a literal reading of s.29(4) CFRN and the potential deletion of subsection (b), it can be interpreted that the inability of a married female below the age of eighteen years to renounce her citizenship goes against Islamic Law or that the ability of a married female to renounce her citizenship amounts to an endorsement of child marriage.
Nigerians, especially lawyers and legislators have to start thinking outside the box and get themselves better informed. Detailed and critical analyses have to be undertaken when considering legal issues, especially those that are sensitive. Our distinguished senators have to realise that legislating goes beyond “aye” and “nay”. When undergoing a review, a critical evaluation or examination has to be part of the process. If s.29(4)(b) CFRN was critically examined and evaluated during the Constitutional review, the issues discussed above are some of the issued that ought to have been considered. They are issues that Senator Ekweremadu could have discovered upon proper research and he could easily have raised these arguments when he suggested the review of that provision of the Constitution; rather, whatever good intentions he had got side-tracked by Senator Yerima’s misplaced and baseless arguments and we all know the result: “aye” for Senator Yerima’s argument.
The Way Forward
Section 29(4)(b) CFRN should either be deleted in its entirety, or it should be amended to allow any married woman who is not of full age as defined in s.29(4)(a) CFRN to renounce her citizenship only with the consent of her parent(s)/guardian(s) or anyone legally responsible for her.
 Anyone with cogent information on this should please kindly draw my attention to it. Thanks.
 I use the word female instead of woman because some female children are married; marriage does not make then women automatically. Thus, female is a more generic and representative word.
 Afoma Ofodile hits the nail on the head with her comment, available at: https://mavisblawg.com/2013/07/19/is-every-married-woman-of-full-age/#comments
 Of which, if he indeed suggested it, I’ll be in total support of
 For example, Article 18 of the International Covenant on Civil and Political Rights (available at: http://www1.umn.edu/humanrts/instree/b3ccpr.htm), and Article 8 of the African [Banjul] Charter on Human and Peoples’ Rights (available at: http://www1.umn.edu/humanrts/instree/z1afchar.htm).
 Which does not apply to marriage under Customary or Islamic Law
 The UN CRC is available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
 Liechtenstein v. Guatemala available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=lg&case=18&k=26
 Kay Hailbronner, “Nationality in public international law and European law” available at: http://www2.law.ed.ac.uk/citmodes/files/NATACCh1Hailbronner.pdf
 See footnote 12 above.
 Notwithstanding that Article 8 of the UN Convention on the Reduction of Statelessness (to which Nigeria is a signatory) prohibits deprivation of a person’s nationality if that person would become stateless as a result, Article 7(1)(b) of the same Convention in effect, permits a State to leave a national who has renounced his/her citizenship stateless, so as not to affect the application of Articles 13 and 14 of the UDHR.
 Stateless persons are covered by international conventions like the 1951 Convention on the Status of Refugees and the OAU Convention Governing the Specific Aspects of Refugee problems in Africa.
- s29(b)… Barking up the wrong tree? (Thisday)
- Child marriage: We haven’t done anything new to Constitution – Ekweremadu (vanguardngr.com)
- #ChildNotBride- Who Is Responsible? State, Parents or Both? (bellanaija.com)
- Senator Yerima and Constitutional Review by Mariam Uwais (Sahara Reporters)
- Misguided campaign about child brides (1/2) (Nigerian Telegraph)
- Misguided campaign about child brides (2/2) (Nigerian Telegraph)