INTERNATIONAL LAW AND CHILD MARRIAGE

    International law creates an obligation on the part of the government to undertake numerous actions, including those at the national level. Inter national instruments are legally binding on nations that are parties to it. The government of Nigeria is a party to various international legal instruments, including inter alia;

1.          The international Convention on Economic, Social and Cultural Rights. Which was adopted on December 16, 1966  and entered into force on September 3, 1976. This treaty was ratified by Nigeria on July, 29, 1993.

2.          The International Convention on Civil and Political Rights. Which was adopted on December 16, 1966  and entered into force on March 23 1976. This treaty was ratified by Nigeria on July 29, 1993.

3.          The convention on the Elimination of All Forms of Discrimination Against Women. Which was opened for signature on March 1, 1980 , and entered into force on September 3, 1981. It was dully signed by Nigeria on April 23, 1984, and ratified on June 13, 1985.

4.          The international convention on the elimination of all forms of Racial Discrimination, which was opened for signature on March 7, 1966 , and entered into force on January 4, 1969. It was ratified by Nigeria on July 22, 1983.

5.          The convention on the Rights of The Child, which was opened for signature on November 20, 1989 , and entered into force on September 2, 1990. It was ratified by Nigeria on April 19, 1991.

6.          African Charter on Human and Peoples Rights, which was adopted on June 26, 1981 .

All these international treaties, tackled and guaranteed the rights of women to an extent. But none of these international legal instruments dealt properly with marriageable age of a female child. Although in Article 1 of the United Nations Convention on the Rights of the Child, it was stated;

      “ for the purpose of the present convention, a child means every human being, below the age of 18 years unless the in law applicable to the child, majority is attained earlier”.

These international legal instruments, guaranteed every woman the right of free consent to a marriage. But such free consent cannot be given by children because at their tender age, when they are given away in marriage to older men, such free consent cannot apply.

  However, this situation and the wide spread practice of child marriages necessitated the adoption of the 1967 convention on consent to marriage, minimum age for marriage and registration of marriages.  Which has been ratified by only 49 countries as at 1994. Infact, Nigeria is not a party to such ratification and indeed, only ten African countries ratified this convention.



TABLE 1

              STATES PARTIES TO THE CONVENTION ON CONSENT TO      MARRIAGE, MINIMUM AGE FOR MARRIAGE AND REGISTRATION OF MARRIAGES.

1  BOSNIA & HERZEGOVINA    2  BURUNDI        3  CAMBODIA

4  ANTIGUA & BARBUDA  5  ARGENTINA            6  AUSTRIA

7  CROATIA                          8  COSTA RICA            9  BRASIL

10 BARBADOS                    11  BENIN                    12  CZECH REPUBLIC

13 BURKINA FASO              14  CUBA                      15  FIJI

16 DOMINICAN REPUBLIC  17  DENMARK            18  GUATEMALA

19 FINLAND                        20  GERMANY              21  JORDAN

22 GHANA                            23  HUNGARY              24  ICELAND

25 GUINEA                          26  MEXICO                  27  MONGOLIA

28 MALI                                29  MONACO              30  NEW ZEALAND

31 NIGER                              32  NETHERLANDS      33  ROMANIA

34 PHILIPPINES                  35  POLAND                  36  NORWAY

37 SAO TOME&PRINCIPE  38  SPAIN                      39  SWEDEN

40 SAMOA                          41  SLOVAKIA                42  SOUTH AFRICA

43 UNITED KINGDOM        44  TRINIDAD&TOBAGO 45  TUNISIA

46 VENEZUELA                    47  YEMEN                    48  YUGOSLAVIA

49 URUGUAY



Surprisingly, Guinea, which have ratified this convention, have the highest prevalence of early marriage in Africa. Analysis of data from the world fertility survey showed that 82% of Guinean women get married at least once, between the ages of 15 and 17 years.

The convention on consent to marriage, minimum age for marriage and registration of marriages was adopted on 10th December, 1962, and entered into force on 9th December, 1964. It requires that parties to it should take legislative action to specify a minimum age for marriage in their various laws. The U.N. also recommended the minimum age for marriage as 18 for boys and 15 for girls.

There has been several world conference on women over the decades gone bye. The last one being the  Fourth World Conference on Women, held in Beijing, China, on 4 – 15 September, 1995. This conference identified the girl child as one of the critical areas of concern. Paragraph 12 of the agenda of the conference listed the girl child thus;

    “ Persistent discrimination against and violation of the rights of the                                                                 

          girl child”.

The conference did not just stop at including the girl child on it’s agenda, but it went ahead to recommend steps and actions to be taken to promote the rights and well being of the girl child, including the issue of the marriageable age of a female child. It stated;

        “ The convention on the rights of the child recognizes that, ‘ states parties shall respect and ensure the rights, set forth in the present convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parents’ or legal guardians race , colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or status’. (article 2, paragraph 1) However, in many countries, available indications show that the girl child is discriminated against from the earliest states of life, through her childhood and into adulthood. In some areas of the world, men outnumber women by 5 in every 100. The reasons for the discrepancy include, among other things, harmful attitudes and practices such as female genital mutilation, son preference – which results in female infanticide and parental sex selection – early marriage, including child marriage, violence against women, sexual exploitation, sexual abuse, discrimination against girls in food allocation and other practices related to health and well- being, As a result, fewer girls than boys survive into adulthood”.

Also, in paragraph 263 the issue of lack of education or rather the disparity between educated boys and girls was highlighted. It stated:

        “ Although the number of educated children has grown in the past 20 years in some countries, boys have proportionately fared much better than girls. In 1990, 130 million children had no access to primary school. Of these, 81 million were girls. This can be attributed to such factors as customary attitudes, child labour, early marriages, lack of funds and lack of adequate schooling facilities, teenage pregnancies and gender inequalities in society at large, as well as in the family as defined in paragraph 29 above … In many cases girls start to undertake heavy domestic chores at a very early age and are expected to manage both educational and domestic responsibilities, often resulting in poor scholastic performance and an early drop out from schooling”.

      On early motherhood and it’s attendant complications on the health of the girl child paragraph 267 stated;

      “ More than 15 million girls age 15 to 19 give birth each year. Motherhood at a very young age entails complications during pregnancy and delivery and a risk of maternal death that is much greater than average. The children of young mothers have higher levels of morbidity and mortality. Early child bearing continues to be an impediment to educational, economic and social status of women in all parts of the world. Overall, early marriage and early motherhood can severely curtail educational and employment opportunities and are likely to have a long term adverse impact on them and their children’s quality of life”.

        The conference did not stop on that, it proffered strategic actions to be taken by all and sundry to ensure the full realization of the rights of the girl child. Paragraph 274 which is on actions to be taken by governments in order to eliminate all forms of discrimination against the girl child states;

1.          By states that have not signed or ratified the convention on the Rights of The Child, take urgent measures towards signing and ratifying the convention bearing in mind the strong exhortation made at the World Conference on Human Rights to sign it before the end of 1995, and by states that have signed and ratified the convention, ensure its full implementation through the adoption of all necessary legislative, administrative and other measures and by fostering an enabling environment that encourages full respect for the rights of children.

2.          Enact and strictly enforce laws to ensure that marriage is only entered into with free and full consent of the intending spouses in addition, enact and strictly enforce laws concerning the minimum legal age of consent and the minimum age for marriage and raise the minimum age for marriage where necessary.

3.          Develop and implement comprehensive policies, plans of action and programmes for the survival, protection, development and advancement of the girl child. To promote and protect the full enjoyment of her human rights and to ensure equal opportunities for girls. These plans should form an integral part of the total development process.

            On the negative cultural attitudes and practices against girls, it recommended actions to be taken by governments in paragraph 276 as;

1.          Encourage and support as appropriate, non-governmental organizations and community based organizations in their efforts to promote changes in negative attitudes and practices towards girls.

2.          Set up educational programmes and develop teaching materials and textbooks that will sensitize and inform adults about the harmful effects of certain traditional or customary practices on girl children.

3.          Develop and adopt curricula, teaching materials and textbooks to improve the self image, lives and work opportunities of girls…

4.          Take steps so that tradition and religion and their expressions are not a basis for discrimination against girls.

In paragraph 227, it was recommended;

1.          Promote an educational setting that eliminates all barriers that impede the schooling of married and/or pregnant girls and young mothers including as appropriate, affordable and physically accessible child care facilities and parental education to encourage those who have responsibilities for the care of their children and siblings during their school years to return to, or continue with, and complete schooling.

2.          Develop policies and programmes, giving priority to formal and informal education programmes, to support girls and enable them to acquire knowledge, develop self esteem and take responsibilities for their own lives and place special focus on programmes to educate women and men, especially parents, on the importance of girls physical and mental health and well being, including the elimination of discrimination against girls in food allocation, early marriage, violence against girls. Female genital mutilation, child prostitution, sexual abuse, rape and incest.

In paragraph 279 (c), it stated;

“ Promote human rights education in educational programmes and include in human rights education the fact that the human rights of women and the girl child are inalienable, integral and indivisible part of universal human rights”.

Recommending on the health of the girl child, paragraph 221 ( b ) stated;

“ Sensitize the girl child, parents, teachers and society concerning good general health and nutrition and raise awareness of health dangers and other problems connected with early pregnancies”.

On the role of the family in ensuring proper upbringing of the girl child, paragraph 285 recommended actions by governments;

1.          Formulate policies and programmes to help the family as defined in paragraph 29 above, in its supporting educating and nurturing roles, with particular emphasis on the elimination of intra-family discrimination against the girl child.

2.          Provide an environment conducive to the strengthening of the family, as defined in paragraph 29 above, with a view to providing supportive and preventive measures which protect, respect and promote the potentials of the girl child.

3.          Educate and encourage parents and care givers to treat girls and boys equally and to ensure shared responsibilities between girls and boys in the family, as defined in paragraph 29 above.

It is important to note here, that girls are condemned to an early marriage because of what obtains in our homes right here in Nigeria. On the family in general, paragraph 29 of the Platform For Action , has this to say;

“ Women play a critical role in the family. The family is the basic unit of society and such should be strengthened. It  is entitled to receive comprehensive protection and support in different cultural, political and social systems, various forms of the family exist. The rights, capabilities and responsibilities of family members must be respected. Women make a great contribution to the welfare of the family and to the development of society, which is still not recognized or considered in its full importance.

The social significance of maternity, motherhood and the role of parents in the family and in the upbringing of children should be acknowledged. The upbringing of children requires shared responsibility of parents, women and men and society as a whole. Maternity, motherhood, parenting and the role of women in procreation must not be a basis for discrimination nor restrict the full participation of women in society. Recognition should also be given to the important role often played by women in many countries in caring for other family members of their family”.

The position of The Platform for Action is a reaffirmation of the findings of Frederich Engels, which is outlined in, The origin of family, private property and the state. Here, Mr. Engels, painstakingly outlined the history of the family, the traditional role of women in the family and the change in status quo of the role of women by the emergence of the patriarchal society. It stated;

        “ According to the materialistic conception, the determining factor in history is in the last resort the production and reproduction  of immediate life. But this is of a two fold character. On the  one hand, the production of the means of subsistence of food, clothing and shelter and the tools requisite thereof on the other, the production of human beings themselves, the propagation of the species. The social institutions under which men of definite epoch and of a definite country live are conditioned by both kinds of production, by the stage of development of labour on the one hand and of the family on the other…”

        “ In the old communistic household which embraced numerous couples and their children, the administration of the household entrusted to the women was much a public socially necessary industry as the providing of food by the men. This situation changed with the patriarchal family. The administration of the household lost its public character. It was no longer the concern of the society. It became a private service. The wife became the first domestic servant pushed out of participation in social production. Only modern large scale industry again threw open to her and only to the proletarian women at that, the avenue to social production, but in such a way that when she fulfills her duties in the private service of her family, she remains excluded from public production and cannot earn anything and when she wishes to take part in public industry and earn her living independently, she is not in a position to fulfill her family duties. What applies to the woman in the factory applies to her in all professions, right up to medicine and law. The modern individual family is based on the open or disguised domestic enslavement of the woman and modern society as a mass composed solely of individual families as its molecules…. The peculiar character of man’s domination over woman in the modern family and the necessity as well as the manner of establishing real social equality between the two will be brought out into full relief only when both are completely equal before the law. It will then become evident that the first premise for the emancipation of women is the reintroduction of the entire female sex into public industry and that this again demands that the quality possessed by the individual family of being the economic unit of the society be abolished…. With the passage of the means of production into common property, the individual family ceases to be the economic unit of society. Private house keeping is transformed into a social industry. The care and education of children becomes a public matter”.

      It should be noted, that none of these international legal instruments enumerated in this chapter addressed the issue of the marriageable age of a female child adequately. Even the convention on consent to marriage, minimum age for marriage and registration of marriages, did not provide adequately for the marriageable age for the female child. It provided that;

      “ parties to it should take legislative action to specify a minimum age for marriage in their various marriage laws”.

      The United Nations on its own, specified 15 years as the minimum age of marriage for the female child. Even the convention on the rights of the child which fixed the age of majority at 18 years comes with a rider;

        “ unless under the law applicable to the child, majority is attained earlier”.

        In the same vein, the fourth world conference on women held in Beijing recommended among other things;

        “ Enact and strictly enforce laws to ensure that marriage is only entered into with free and full consent of the intending spouses, in addition, enact and strictly enforce, laws concerning the minimum legal age of consent and the minimum age for marriage and raise the minimum age for marriage where necessary”.

        It was silent as to what amounts to adequate minimum age for marriage. In Roman law and its successor, the common law, minimum age for marriage is the age of puberty which is the age of twelve. In most customary laws in Africa, the same age of puberty is also the minimum age for marriage. Now these international legal instruments have remained silent as to the actual age that constitutes the minimum age for marriage, leaving the determination of such age at the discretion of each nation. Some countries, like Tunisia, Morocco, Egypt and many other Islamic countries has enacted laws specifying the minimum legal age for marriage. All the countries in accordance to the dictates of their consciences. Most of these countries fixed the minimum age for marriage for females at 15 and 16 years, while that of males was fixed at 18 years. But we just have to ask ourselves the pertinent question, if a fifteen or sixteen year old girl is matured enough to take up the responsibility of being a wife and inevitably a mother. What about the health issues involved here, is she matured enough to safely deliver a baby? These are the questions we have to ask ourselves while we continue to keep mum on the minimum marriageable age of a female child.

        The convention on marriage, minimum age for marriage and registration of marriages was ratified by only 49 countries as at 1994, and it’s passive stand on a fixed age as the minimum age of marriage for female children has resulted in countries like Guinea which had ratified the convention having the highest prevalence of early marriage in Africa. And such other country like Tunisia which had also ratified the convention fixing the minimum age of marriage for the female child as 15 years and that of a male child at 18 years.

      Early, forced and induced marriage is an anathema, it should be condemned in all it’s ramification. It is an infringement on the right of a female child, which the United Nations has sought to protect or safeguard and also guarantee, through it’s various conventions.