Family law

An Analysis on Child Marriage in the Northern part of Nigeria: the position of Islamic Law and its Economic Effect

INTRODUCTION

“Do you know that the northern part of Nigeria has the highest child marriage rate in the world”?

Child marriage is the practice of marrying a young girl (generally defined as below the age of fifteen) to an adult. In most cases, it is always a young girl married to a man. It is a situation where female adolescents and teenagers are married to adult husbands.

Child marriage has been a common practice among many ethnic groups in the world including Nigeria. However, it has contributed to a series of negative consequences both for young girls and the society in which they live. It is a violation of some laws, early marriage has profound physical, intellectual, psychological, and emotional impacts, cutting off educational and employment opportunities and chances of personal growth. In Northern Nigeria where the practice is prevalent, the impact is more on girls as many of them marry early in their large numbers and with more intensity.

In the pre-independence era when formal education was first introduced in Northern Nigeria, the government through the Native Authority (NA) (which transformed into Local Government Authority) had to force parents to send the girl-child to enroll in formal schools. The NA fully funded the education of these girls who were conscripted to various schools often located outside their province. However, the socio-cultural and religious practices that evolved later in Northern states, particularly the North East and North West changed with the highest number of girl-child not enrolled in school and those who drop out to get married. The majority of these girls never return to school to complete their education, learn a trade, or acquire vocational skills that would economically empower and make them self-reliant.

It was reported that in 26.5 percent of couples, there is an age difference of 15 or more years between husband and wife. Equally, it showed the median age of marriage in the South West and South East was 20.2 years whilst those of the North West was 14.6 years and slightly higher in the North East with 15.0 years. It concluded that there was a large zonal variation in the mean age of marriage with females in the North marrying on an average of about five years earlier than those in the South.

This article aims to take a microscopic view of early marriage in Northern Nigeria, with a critical analysis of the position of Islamic law regarding early marriage. And the economic effect of early marriage. Also, consider the provisions of the Child Rights Act on child marriages against the background of other jurisdictions. It concludes that the practice can be jettisoned highlighting the Egyptian example.

Child Marriages in Northern Nigeria: Islam and Islamic Law

Islam was introduced into Nigeria around the 11th century and spread throughout the country. It has its distinctive legal system, that is, Islamic law. For almost a century, the Borno Empire was the front runner of Islam and the Islamic law legal system. However, by the 15th century, Islamic law had spread to the neighboring states of Kano and Katsina which subscribed to its cause. The Fulani Jihad and the establishment of the Sokoto Caliphate in the 19th Century further consolidated the influence of the Sharia legal system.

The above represented the position until the British colonization of Nigeria. According to a leading scholar on the application of Islamic law in several parts of the world, Islamic law was more in force in Northern Nigeria than anywhere else in the world apart from Saudi Arabia. The British allowed the Islamic law legal system in several Northern states as a native law and custom. To that end, section 2 of the Native Court Ordinance11 provided that native law and custom included Islamic Law. 

The Native Courts (Protectorate) Ordinance13 equally empowered native courts to administer the native law and customs prevailing in the areas of their jurisdiction.  Hence, Islamic law remained operative in Northern Nigeria as a class of customary law and was recognized under the Constitution of the Federal Republic of Nigeria as an existing law.

This was the state of affairs in Nigeria until 2002 when Zamfara State officially adopted the Islamic law legal system. This was quickly followed by eleven other Northern states.

Hence, Islamic law is all-encompassing; it is a religion, a way of life, a society, and a State.  Thus, “whilst Islam is a package of tenets, Islamic law encompasses the full description of the tenets.”  The scope of both addresses the entire aspect of human life.  Sharia or Islamic Law connotes the same meaning, as both refer to the Muslim legal system. Most relevant in this context is that Sharia law is derived from fixed and immutable sources such as Quran, Sunnah Ijma, and Qiyas.

The position of Child Marriage under Islamic Law

 As mentioned before, if either of the parties or both of the parties are incompetent regarding the maturity of a marriage contract thus it is called child marriage. Marriage is a great responsibility for both spouses. Therefore, both must know their rights and responsibilities. Children cannot recognize their duties for which they are made responsible through a contract of marriage (child marriage). Under the provisions of law, a minor cannot enter into any legal contract. Thus, his or her marriage contract would not have any legal effects on the parties (Tauqir Mohammad Khan). Islamic law categorizes some conditions which must be fulfilled by parties before entering into a contract of their marriage.

There is no clear verdict about child marriage in the basic sources of Islamic law which is the Quran and Sunnah. Therefore, it is the responsibility of Islamic scholars to guide the Ummah in such cases. In light of Islamic law, Muslim jurists give their rational opinions on the issue of child marriage which can be divided into two categories which are;

A. The Opinion of the Majority Jurists; 

Imam Abu Hanifa, Imam Malik, Imam Shafi’i, and Imam Ahmad bin Hanbal accept a marriage contract of a child done by his/her father, grandfather, brother, or uncle (Nayazee 2000). They support their argument by several precedents of child marriage which are;

1.         Marriage of Prophet Muhammad (PBUH) with Aisha (RAA) during her very young age.

2.         Ali (RAA) gave his very young daughter in marriage to Urwah b. Zubair.

3.         A person gave his daughter in the marriage contract to Abdullah b. Hassan. Ali (RAA) did not invalidate the marriage (Wahba al-Zuhaili).

B. The Opinion of the Minority Jurists; 

According to imam Shubramah and Abu Bakar al-Asim, child marriage is prohibited and against the commands of Allah. They argue that a marriage contract should not be made before the attainment of puberty of contracting parties to the marriage. They support their argument by the verse of the Holy Quran “until they reach the age of marriage”. According to them, there could have been no need for the verse if child marriage is lawful before the attainment of puberty. They further say that marriage is based on human necessity and children are in no need of marriage to fulfill such necessities. Therefore, child marriage is not allowed in Islam.

The majority of Muslim scholars who support child marriage base their opinions based on the marriage of Prophet Muhammad (PBUH) with Ayesha (RAA) during her very young age. The absolute age of Ayesha (RAA) during her marriage with Prophet Muhammad (PBUH) is still controversial and debatable among Muslim scholars. Some of them are of the view that the age of Ayesha (RAA) was six years at the time of nikah, and later at the age of nine years, her marriage was consummated with the Prophet, while others estimate that her age was ten years at the time of nikah and the age 15 her marriage was properly solemnized. However, upon researching the historical data and related events, one can make it easy to calculate the real age at the time of her marriage.

A well-known historian Allama Imad-ud-Deen ibn Kathir wrote in his book Al-Bidayah wan Nihayah that Ayesha was ten years younger than her sister Asma who died in 73 AH, at the age of 100 years.

Therefore, it becomes clear that Asma was 27 years old and Ayesha was 17 at the time of migration from Makah to Madinah. By subtracting 13 years in Makah’s life the Prophet from this, the result is 4, so age at the time of consummation is 19 years.

At this point, it’s indisputable fact that region and culture can be separated. The practice of child marriage, in the northern part of Nigeria, it’s rooted in the culture. That is to say, it was their way of life before the coming of Islam into the northern part of Nigeria. Because the practice of child marriage is done by both Muslims and non-Muslims. Unfortunately, the barbaric practice of child marriage is accomplished under the umbrella of religious authorization which made them encompass it in their society. The consent of a child is not considered,

Although, child marriages have Quranic backing substantiated by Prophet Mohammed’s marriage to Aisha. However, it has been canvassed that instead of purporting to base the legal authority of family law on an Islamic law jurisprudence that has ceased to exist as a living and evolving system, it is better to recognize that this field, like all other law, derives its authority from the political will of the state.  A clear acknowledgment of this reality will open the door for more innovative approaches to family law reform guided by Islamic principles, without being confined to outdated understandings of Islamic law. This will enable Islamic countries to make family law more consistent with other aspects of their legal systems, including their constitutional and international obligations to protect the rights of women.

A clear application of the above principle is seen from the Egyptian example. Just like Nigeria, Egypt is an Islamic country. Though Egypt belongs to the Hanafi School of Jurisprudence, Upper Egypt just like Nigeria belongs to the Maliki School of Jurisprudence.  In essence, the two countries share some similarities in the practice of Islam. However, in Egypt, the idea of child marriage has been reformed through religion.  Child marriage was heavily reformed in the 1920s. The Child Marriage Restraint Act of 1929 prohibited underage marriages. Presently, there are no reported cases in the country.  Through the transformation of the focus of the Hanafi madhhab, they were able to raise the marriage age to 16 for girls and 18 for boys. The ruling also included a penalty for any male over the age of 21 or parent arranging a marriage outside of this regulation. This occurred as other entities of societies saw reform as well during the 19th and 20th centuries.  It is our submission that if an Islamic country could successfully promulgate a law prohibiting child marriages, reformation is also possible in Nigeria. Much depends on the political will of the state.

In Nigeria, the Child Rights Act was domesticated in 2003. The CRA will provide comprehensive and child-specific legislation that is by international standards. The CRA prohibits child marriages. A person under the age of 18 years is incapable of contracting valid marriage and where such marriage is contracted, it is null and void. Furthermore, a parent, guardian, or any other person cannot betroth a child in contravention of this section as such betrothal will be null and void. The Act states clearly the category of persons contemplated by this provision, that is a person who marries a child, to whom a child is betrothed, promotes the marriage of a child, or who betroths a child. To show the seriousness of this issue, the Act makes it an offense liable on conviction to a fine of N500, 000 or imprisonment for a term of five years or both.

Most Northern states have refused to adopt the CRA. The strongest opposition to the CRA is the  Islamic leaders about the age of marriage. Some Nigerian clerics declared that if the government imposed the CRA, there will be violent conflicts from some Muslims to the extent that some would even die in the process. Hence, Jigawa and Borno State are the only sharia implementing states that have adopted the CRA.

Is it only in the northern part of Nigeria, that Islam is being practiced? There is a need for reformation of the practice of Islamic law in the northern part.  Culture is different from religion. Even though they can not be separated from each other, Islam is a religion of modesty and fairness to every gender, the rights of women need to be protected and to be exercised by themselves, the practice of child marriage should be regulated in the north. Because it’s the Genesis of the problems manifesting in society. Like the issue of Almajir, the high rate of poverty, divorce, and insecurity, Banditry.

Conclusion and recommendations

This paper has attempted to trace the basis for the higher practice of child marriages in Northern Nigeria. It established that child marriages have socio-economic implications on the child and the society at large, most of them are either out of school or being divorced with their children on the street, looking for a way to survive. This paper showed that Egypt is the world’s largest Arab nation which equally shares some Islamic practices with Nigeria. However, it has outlawed child marriages and was even commended for its progressive development over the years. Given the practice in Nigeria, we make the following recommendations which are both preventive and curative for combating child marriages:

1. Attitudinal change: Reforms must take cognizance of the power of traditionally structured families. But parents, family heads, traditional rulers, and other stakeholders must realize there is a need for a change of attitudes towards child marriages. Awareness should be created that it is not a fight against religious beliefs, it is to save the lives of child brides from all the attendant consequences.

2. Adoption of Child Rights Act: The Northern Nigeria states must adopt the CRA without any modifications as depicted in the Jigawa and the Borno Child Rights Law.

3. Adolescent healthcare services: Since these child brides are constantly exposed to sex and sexually transmitted diseases, there is the need for approaches to adolescent healthcare that provide services that are accessible to married and unmarried youths. In addition, skills education for sexual health and regulation need to be provided in the classroom, youth clubs, newsletters, and radio programs. 

4.         Education of the girl-child: Girls must be empowered through education. Both the CRA and the Universal Basic Education Act provide free, compulsory, and universal basic education for Nigerian children.  Already some states have taken the lead to educate the girl-child and prohibit child marriages. The Cross River State Girl-Child Marriage Prohibition Law,  Nige,r and Bauchi states have laws prohibiting the withdrawal of girls from school for purposes of early marriage. Also, Sokoto State has a scheme whereby young married girls who dropped out of school can return to complete their education. Girl’s education is said to reduce child and maternal mortality and high incidence of HIV/AIDS. It increases women’s skill and productivity which consequently eradicate poverty and strengthen the economy in the long term.86 Ultimately, as can be seen from the foregoing global overview, educating the girl-child instead of forcing her into early marriage will translate into accelerated development for Nigeria.

Imran Ridwan Anuoluwapo, is a graduate of English literature from Usman Dan Fodio University, Sokoto. He is currently a student of law at the University of Maiduguri. His area of interest is Islamic personal law, constitutional law, oil and gas, commercial law, international law, corporate practice, and criminal law. His candid for mentorship and training. He is reachable vide/WhatsApp 08131077061 and imranridwan@gmail.com

References

 1- Sections 10, 15 and 21 CRA.  Section 2 Universal basic Education Act 2004,

2- Cross River State Girl-Child Marriage and Female Circumcision (Prohibition) Law 2000. 86         

3- UNICEF State of the world Children 2004.

4-  A. Dauda,  op,cit.,  p.150. T. Khabir, ‘The Role of Islam in Childhood Marriage Case Study: Nigeria’. Presented at the Annual Convention of the Global Awareness Society International San Francisco USA May 2008.

5- M.A. Ambali, The Practice of Muslim Family Law in Nigeria Tamaza Publishing Co. Ltd, Zaria, 2003, pp.154-155.

6- A. Dauda, An Introduction to Sharia, Benchmark Publishers Limited, Zaria, 2005. pp. 129-130.

7- Kofi A. Annan, Foreword Note, State of the World Children 2004. See also Iyabode Ogunniran “Legal Perspectives on the Educational Rights of the Girl-Child and Development Issues in Nigeria”  (A.B.U.J.P.I.L) 2007, pp. 41-54.

8- Hadith of the Prophet

9- A. An Na’im, Islamic Family Law in a Changing World, A Global Resource Book, Zed Books Ltd London, New York, 2002 p.3.

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About IMRAN, Ridwan Anuoluwapo

Imran Ridwan Anuoluwapo, is a graduate of English literature from Usman Dan Fodio University, Sokoto. He is currently a student of law at the University of Maiduguri. His area of interest is Islamic personal law, constitutional law, oil and gas, commercial law, international law, corporate practice, and criminal law. His candid for mentorship and training. He is reachable vide/WhatsApp 08131077061 and imranridwan@gmail.com