It is fairly settled, that child marriage is not exactly illegal in Nigeria, provided that the intricacies involved in the law(s), applicable to the particular kind of marriage being contracted, are complied with; e.g. requirement of consent from the minor’s parent/guardian.
In my opinion, child marriage is abhorrent, disgusting, and repugnant; and may be described by a buffet of other negative adjectives; but it still remains legal. My conviction against child marriage is based on my personal moral principles and ethics. Others who share the same conviction may have their beliefs attributable to factors like religion, common sense, or popular belief.
In every society, it is normal to have tension/friction between law and morality; sometimes they are in sync, at other times, they conflict with each other. When law and morality conflict, the law takes precedence. This article discusses the tension between law and morality in the context of child marriage as well as circumstances where marital rape is involved.
An interesting point to start this discussion is the concept of ‘innocence’. The word ‘innocent’ means “free from legal or specific wrong” or “free from moral wrong”. Thus, for it to be said that a person is not innocent of any accusation of child marriage, it means the person must have broken a law, or has infringed a moral principle that repugns child marriage.
With regard to child marriage, while some of us condemn (on moral grounds) the idea of marrying a child (male or female), there are others who do not see anything morally wrong with it.
Customary practices vary around Nigeria; but apparently, according to Islam, it is permitted if the female child has attained puberty. Anyone who supports child marriage would also not see anything morally wrong in statutorily raping the child (i.e. sexual intercourse with a minor with or without his/her consent), or even the possible marital rape of the fragile child bride.
Beside child marriage, a clear instance of the tension between law and morality is evident in the area of marital rape. In Nigeria, a man cannot be criminally charged for raping his wife whereas in other jurisdictions like England, that law has been changed to make it possible for a man to be charged for raping his wife.
While some citizens might support the Nigerian law that does not recognise marital rape, others, especially women, would condemn it. Why? Because it is wrong. It is not wrong in the legal sense; rather, it is wrong on moral grounds because a man should never force a woman to have sexual relations with him – not even his wife.
On the other hand, some Christians might defend the Nigerian law on the ground that it is moral because the Bible states that: “The husband should give to his wife her conjugal rights, and likewise the wife to her husband. For the wife does not have authority over her own body, but the husband does…Do not deprive one another, except perhaps by agreement for a limited time, that you may devote yourselves to prayer” (1 Corinthians 7:3-5). Muslims may defend marital rape on similar grounds by reference to Islamic Law provisions.
This is the problem with setting or insisting on standards based on morality. In a heterogeneous society, it is difficult to ascertain what/whose moral standards should govern conduct or determine what is right or wrong. Should it be based on religion? If it is based on religion, which of them – Christianity, Judaism, Islam, African Traditional Religion, Atheism? Should it be based on popular belief? If so, how would the results be collated – two-third majority, simple majority or absolute majority?
In the absence of any legal prohibition on child marriage, I’ve discovered that the issue is more intricate and complicated than meets the eyes. On my moral principles, there can be no compromise – child marriage and/or marital rape is wrong. But Senator Ahmed Yerima and others who support the idea also have a claim that it is not immoral as long as the requirements of Islam are met.
If it ever comes to be legislated on, how would the legislators decide on what way to vote? If they vote in a manner that retains child marriage, can they really be faulted if that is the approach their constituents (who elected them to represent their views) would advocate for? Should they vote based on their religious preferences, personal convictions, or public opinion (opinion of the electorate)?
Inasmuch as child marriage is abhorrent, disgusting and should be made a crime, we cannot categorically say that Yerima, or those who voted in favour of the retention of section 29(4)(b), in the mistaken belief that they were voting so as not to infringe any rights in Islam, have committed a crime or done anything legally wrong. If any wrong was done, it was a moral wrong.
According to William Hazlitt: “Every man, in his own opinion, forms an exception to the ordinary rules of morality”; and in the words of Herbert Read: “Morality… is antecedent to religion-it even exists in a rudimentary form among animals.”
But like I asked earlier – whose morality should be the determiner?
The status of our laws on marriage (especially the loopholes that permit child marriage) is a harsh price we pay for democracy.
“Where there is politics or economics, there is no morality” – Karl W. F. Schlegel.
Originally published by The Nigerian Telegraph here