Despite child marriage being recognized and prohibited by both international and domestic laws within Nigeria. Child marriage is still prevalent, especially in the North and argued as an Islamic religious practice.
In 2010, when a 49-year-old senator in Nigeria married a 13-year-old girl in a society-celebrated wedding in northern Nigeria, both the event and the incidence of child marriage in Nigeria gained global attention. The senator was rich and influential, and paid a dowry of $100,000 to the child’s parents. Many observers interpreted the dowry as the girl having been sold to the rich senator and, thus, a form of modern-day slavery.
In Nigeria, child marriage has different faces. Arguably, it is both a cultural and religious practice. Culturally, it is practised in all parts of Nigeria; in northern Nigeria, particularly, it is also argued to be Islamic instruction. Essentially, adherents of Islam argue that it is a religious practice which the prophet Mohammed exemplified and which his followers should practise. Research, however, reveals that child marriage predates Islam. Despite the evidence that child marriage was more of a cultural than religious practice in early Islamic societies, adherents in Nigeria, especially in the North, hold steadfast to the practice and fight any intervention of law or the state to eradicate it. In fact, they raise legal provisions to justify their stand.
Research has shown that child marriage is linked to poverty. Moreover, child marriage is increasingly understood as a form of modern slavery and child exploitation. It is generally understood that a child is any person under the age of 18. Therefore, child marriage is marriage to anyone younger than 18, even if such a union is deemed ‘legal’.
CONNECTING CHILD MARRIAGE, SLAVERY AND EXPLOITATION
Slavery, according to the United Nations, is ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.’ Slavery can be described as practices that restrict the liberty of a person, or tends to acquire control of the person in conditions similar or that can amount to slavery.
In the modern context, the circumstances of the enslaved person are important in identifying what constitutes slavery. Such circumstances include the degree of restriction of the individual’s right to freedom of movement; the degree of control of the individual’s personal belongings; and the existence of informed consent and a full understanding of the nature of the relationship between the parties.
Modern slavery is any form of severe exploitation of other people for personal or commercial gain. In producing the 2016 Global Estimates of Modern Slavery, researchers highlighted the connection between slavery and child/forced marriage. According to their findings, 73 per cent of the victims of modern slavery were female, and one in four victims were children. Forced labour accounted for 24.9 million victims, while 15.4 million victims were in forced marriage. Of those in forced marriages, 37 per cent, or 5.7 million were children.
Slavery is also linked to servitude and exploitation also comes to bear in the issue of servitude. Exploitation means to take advantage of someone or a group of people. Child servitude thus involves exploiting a person under the age of 18. Many child marriage cases involve children who are handed over by parents or guardians into these unions within which their services are exploited by their spouse and/or their spouse’s household or family. In the case of marriage, exploitation will generally cover domestic and/or manual labour, as well as sexual relations. Victims typically have no choice but to engage in these activities. Engagement in sexual activities for a child bride is a key feature within child marriages that establishes relationship as a form of gendered sexual abuse. But child marriages are more than vehicles of sexual abuse—such marriages are equally synonymous with economic exploitation as the child is mandated to engage in house chores and or other economic activities which she may not benefit from directly but is for the benefit of the ‘husband’ or the family.
What these issues which underly child marriage have in common include the lack of the child’s consent, forced activities and the generation of economic benefit in favour of others except the child. This is because child marriages reduce the girl-child to an object of exchange, use and exploitation. In addition, the child’s parents or family also benefit financially from such marriages. In fact, such marriages put the parents and family of the girl (instead of the girl) in a continuously beneficial position from the marriage. This is the exploitation.
In the 2017 report by the Institute of Current World Affairs, ‘Forced into Marriage at 17, Now Fighting for Divorce: A Tale of a Child Bride in Nigeria’, Rahma, a 17-year-old girl tells her experience of slavery as a child bride. In the same report, Azisa another girl shares her story of slavery and sexual exploitation as a child bride. Another case of the Hauwah whose husband cut off her leg for attempting to run away is also relevant. If not for the fact that he believed he owned her, how and why would he have cut off her legs? The fact that she was prevented from leaving the marriage, as well as the treatment she received from the man are signs of slavery. This is similar to the experiences of girls abducted by Boko Haram insurgents in Nigeria. Such girls are forced into marriages or become concubines of the militants or sexual slaves of militants.
The definition of child marriage fits with the description of the institution of slavery in the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956 ‘Any institution or practice whereby a woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any person or group; or Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labor.’
Where element of ownership, control, restriction of freedom of movement are involved, slavery can be interpreted into the situation. For the girl child in a child marriage union, these are all characteristics of the relationship.
Slavery is a historic economic situation that exploits the enslaved, and has become illegal since. In its modern form, slavery remains wrong and illegal, ethically, morally, and legally. There is a shared link between child marriage, slavery, and child exploitation.
SLAVERY AND CHILD MARRIAGE THROUGH A LEGAL LENS
Slavery and child marriage are recognized and prohibited by both international and domestic laws within Nigeria. On the international front, the Universal Declaration of Human Rights states that ‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ Additionally, international provisions such as the International Covenant on Economic, Social and Cultural Rights, recognizes the right to work ‘which includes the right of every-one to the opportunity to gain his living by work which he freely chooses or accepts.’ This provision prohibits exploitation as well as provides for the right of an individual to the wages of his labour. The Rome Statute of the International Criminal Court characterizes ‘enslavement’ as a crime against humanity falling within the jurisdiction of the Court. The most recent reference to slavery in an international instrument is in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), supplementing the United Nations Convention against Transnational Organized Crime, which criminalizes trafficking in persons ‘for the purpose of exploitation’” including, “at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’.
The UN Convention on the Rights of the Child (CRC) guarantees children the right to freedom from mental or physical violence, injury, exploitation, maltreatment, and abuse, including sexual abuse. In a general comment, the Committee on the Rights of the Child includes in the prohibited forms of violence the sale of children for forced marriage as a manifestation of sexual abuse and exploitation, and defines forced and early marriage as a harmful practice.
Courts have also attempted to link servitude, enslavement, and sexual abuse. In Prosecutor v. Kunarac, two men were accused of the crimes of ‘rape’ and ‘enslavement for capturing women and subjecting them to sexual servitude for a period of months.’ In this case, the Court adopted the 1926 Slavery Convention’s definition of slavery and defined the elements of ownership requisite for finding enslavement.
Within Nigeria, domestic legislations against slavery and child marriages include the 1999 Constitution with its provisions on the human rights of citizens. Section 34 of the Constitution, for instance, guarantees the right to the dignity of the human person which can be interpreted to mean the prohibition of subjecting anyone to slavery or servitude.
In relating the provision of the law in Nigeria with regards to the practice of child marriage, it is important to assess the law and the impact of its interpretation on the issue. Yes, children are counted as citizens in Nigeria. However, there is no definition of a child in the Constitution; the closest definition of a child can be argued to support child marriage in its interpretation. This is found in explaining a citizen and full age in S29(4) ‘“full age” means the age of eighteen years and above,’ and ‘any woman who is married shall be deemed to be of full age.’ In interpreting this, the rights within the constitution pertain to citizens above 18 years and on the second part, child marriage is argued as legal here because a girl of any age is acknowledged automatically to be of full age by virtue of marriage.
Concerning the notion that child marriage is ordained by Islamic law, as argued in the case of the senator that married a child in 2010, adherents have also argued that the laws of the federation cannot apply to Islamic religious laws. This argument is based on Nigeria’s legal structure: religious laws (under which child marriage falls) are within state legislative competence and not that of the federal legislative jurisdiction. This is one reason why the Child Rights Act has not been treated as state law in many of the northern states in Nigeria.
However, the Nigerian Criminal Code prohibits slave dealing, and Section 369 punishes slave dealing with imprisonment for 14 years upon conviction. The section’s definition of the offence include: dealing, trading in, purchasing, selling, transferring, placing, holding, taking or treating any person as a slave or in servitude as a pledge or security for a future debt. The experience of girls within the child marriages can as well fit the descriptions of this provision of the criminal code.
Section 365 of the Criminal Code deals with the unlawful deprivation of liberty of a person by confinement or detention and punishes the offender with imprisonment for two years. The experience of most girl brides is synonymous with confinement and detention. Their movement is restricted; many cannot go to school or visit their family of birth.
Section 276 of the Penal Code also prohibits the trafficking of women into Nigeria. This seems to apply in the case of the senator who married a girl child but whose case went without prosecution. The child bride was brought into Nigeria from Egypt. Trafficking has a connotation of legal ownership since one cannot give or sell what one does not have.
In all the descriptions from the criminal provisions, it can be said that slavery is a crime and prohibited in Nigeria. Each offence, moreover, comes with a penalty or sanction:
The provision of Section 279 of the Penal Code prescribes a punishment of a minimum of 14 years imprisonment for trafficking or holding anybody in slavery. The sanction for procuring is imprisonment for up to seven years while, according to S280, the sanction for forced labour is one year imprisonment or fine.
Situating child marriage as a form of slavery proscribed by human rights instrument under the domestic law of Nigeria will also require analysing the provisions of the Child Rights Act. Drawn in 2003, the Child Rights Act or CRA is the most comprehensive law in Nigeria today for the protection of the rights of children. Most of its provisions are drawn from the Convention on the Rights of the Child (CRC) and the ILO Convention. In accordance with international norms, Section 277 of the CRA defines a child as a person below the age of 18 years. Additionally, Section 14 of the CRA states that a child must not be separated from his or her parents against their will, except where it is in the best interests of the child. Trafficking of a child for any purpose, whether with or without the consent of the parents, is a clear violation of the child’s right to parental care, protection, and maintenance.
Section 28 of the CRA prohibits exploitative and forced labour of children, Sections 31 and 32 of the CRA also prohibit ‘unlawful’ sexual intercourse with a child, other forms of sexual abuse and exploitation, and punish the offence with imprisonment of 14 years. This is more than that provided by the Penal Code.
In analysing child marriage as a form of sexual abuse and crime of defilement, adherents ultimately argue that, according to S6 of the Criminal Code, sexual intercourse with a child married to the accused does not amount to the offence of defilement. However, an argument with legal support has yet to be proffered to refute that child marriage is a form of slavery and exploitation.
It is unfortunate that in Nigeria, many still do not view child marriage as slavery or exploitation. If they did, that would make child marriage fall within the foregoing laws which criminalize slavery, procuring, trafficking and exploitation, thus enabling perpetrators of the practice to be prosecuted. Rather, till date, child marriage is argued by many adherents and supporters of the practice in Nigeria to be a form of Islamic religious law which are outside the legislative and adjudicatory intervention of the secular laws of the land. This argument, however, does not hold water as child marriage predates Islam. Child marriage was practised in early Europe and remains a cultural practice in many non-Muslim places, a point which suggests child marriage is a cultural issue that, potentially, can be amenable to change. For now, however, the conflicting status of the law in Nigeria with regards to the different provisions and interpretations does not give room for effective implementation on the issue of child marriage or even the prosecution of culprits.
In a nutshell, poverty, illiteracy misunderstanding of culture, misinterpretation of religious ordinances and even the existence of conflicting, archaic, and discriminatory laws which do not give room for the prosecution of culprits continue to allow child marriage and thus child slavery and exploitation to persist in Nigeria and Africa. This entraps female children in modern slavery in Nigeria even to this day.
ERADICATING CHILD MARRIAGE
For too long, child marriage has been present with far-reaching adverse effect on the girl victims, the generation of women they belong to, the communities where it is predominant, Nigeria and the African society, and it is high time the practice is eradicated. Analysis of literature and existing legal framework provide arguments and reasons for its continuance in Nigeria which include legal acknowledgement or acceptance, religious perceptions as well as non-prosecution of offenders. These factors can be argued to be interwoven as causes and resultant effects of child marriage. However, arguments as to child marriage as a form of modern-day slavery have become necessary, although they remain scantily proposed. This is notwithstanding the fact that legal provisions exist that can establish child marriage as slavery and child exploitation, providing strong reasons for its eradication.
Considering that many efforts and approaches aimed at eradicating child marriage have failed, understanding and interpreting the practice as modern-day slavery might make a difference. Thus, for tangible progress towards the eradication of child marriage, researchers, non-governmental organizations and other social change stakeholders must dedicate resources to establishing child marriage as a form of modern-day slavery and exploitation⎈
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