RELIGION, POLITICS AND PUBLIC POLICY: RECASTING THE EARLY GIRL CHILD MARRIAGE DEBATE ¬Part 1 Leonard Ugbajah

After a protracted and highly sensational debate on early girl child marriage in the last few weeks in Nigeria, I believe there are enough materials out there to aid anyone who is interested in making an informed decision on the debate. I deliberately refused to openly join the fray while it was “hot” because of the sensational nature. People shouted at one another and few days later, we have all returned to our normal lives. However, I feel the need to recast the issues and introduce a different dimension to stir a wider debate and orientation on politics, public policy and religion. Aside those who made a sensation out of the issue, I am more deeply concerned by the fact that some people, following Senator Ahmed Yerima’s line of thought turned the issue of early girl child marriage into a religious debate. When what should otherwise be a policy debate is cast in sectarian mould, be it religious, ideological or otherwise, what we have is a distorted outcome. Instead of cohesion, we end up with further polarisation. I acknowledge that it is difficult to dabble into this kind of write-up without being accused of bias or ignorance of this or that religion but let me state beforehand that I am indeed biased. However, my bias is not about “religion” but about what appeals to “practical reasonableness” in pursuit of public policy objectives. You will never catch me speak for or against any religion but as a matter of public policy interest, I can speak for or against particular practices, be it of religious or cultural origins. You can worship anything, nothing or all things but if we must co-exist in the same space, we must agree on certain ways of doing things and what things are allowed or prohibited.
Let me start by restating the fact that Section 29 (4)(b) of the Constitution merely recognises the fact that in many parts of Nigeria, not just among Muslims, girls of less than 18 years of age are given out in marriage. The drafters of the Constitution did not border themselves about legislating the right age for marriage but merely recognised an existing socio-cultural fact. Looking at it from this perspective, it becomes immediately clear that the debate on early girl child marriage should not centre around Section 29 (4)(b). In fact, a more serious Constitutional provision that directly affects the issue of early girl child marriage is in the second schedule (Part 1, Item 61). This foregoing provision lists matrimonial causes under the exclusive list but exempts customary and Islamic marriage, thereby leaving these marriages to the sole jurisdiction of the States rather than the Federal Government.  What this simply means is that every State is at liberty to set the standards for a valid marriage under the custom prevalent in its domain. This provision trumps every case we make for the deletion of Section 29 (4)(b). This very provision in the Exclusive List is also the reason why the effort at legislating the age (18 years) for marriage under Section 23 of the Child Rights Act has not changed the situation, except for State that have adopted the Law with Section 23 unmodified.
One thing we may lose in casting this debate in religious tones (no thanks to Senator Yerima) is the fact that dogma may trump reason and we arrive at no agreement on the more sublime issues around girl child marriage. At the end of the day we would not have achieved anything. Some non-Muslims may see the debate as an opportunity to castigate Islam while many Muslims will see it as a manifestation of “Islamophobia”. Unfortunately, when public policy debates fall into the cauldron of religious sentiments, you can be sure of a poor outcome either in form of a skewed policy or deep division leading to protracted conflict. Be that as it may, one must still acknowledge that there is a real issue at stake here, which may not have attracted so much public attention and debate if Senator Yerima had not used his religious “blackmail” to arm-twist the Senate.
While I decry any attempt by non-Muslims to see this as another opportunity to bash Islam, my concern is more with my Muslim friends and some supposedly educated authors who have argued their points from the place of sentiments. In fact, I am more surprised by their unwillingness to even consider alternative views from fellow Muslims, even from the cradles of Islamic civilisation who still practice Sharia’a law in its more strict forms. While I do not seek to get into the religious arguments, let me observe that what I have gathered so far from the views of Muslims I have read on early girl child marriage is that the age for marriage in Islam depends on which interpretation of the Quran and Hadiths one subscribes to. So, where there is no consensus in interpretation as I perceive it here, it troubles my mind that even some people I regard as “progressive friends” and other highly educated commentators would insist on the correctness of their own interpretations to the extent of using uncouth and hate-filled words like “bastards” to describe those who do not agree with them. One will suppose that where there are no explicit provisions or unanimous interpretation surrounding certain issues in religious texts, then common sense principles anchored on good faith, love and respect for the other person would inform the basis of debate and policy on such issues. Furthermore, we seem to constantly lose sight of the fact that the religious texts we rely on should at first be seen in their historical context, which includes their social, cultural and political context. If we examine the texts from this perspective, we can then distinguish between the things that are universal precepts and those that answer to the peculiar circumstances of the time and space in which they occurred. While we can adopt the universal precepts for all times and purposes, same cannot be said about the actions and injunctions that relate to the time and space in which they occurred. This ordinarily should not pose any difficulty! But like I said, I don’t pretend to be an authority on religious matters.
Let me now raise some of the issues on my mind concerning this debate. I may not be able to provide answers to all of the issues raised but the intention is to provoke deeper thinking, or rather, to introduce another paradigm to the issue. In my mind, for this debate to qualify as a policy debate, it must start by asking the questions whether or why do we need to legislate the age for marriage? If we have sufficient reasons to legislate on this issue, what should be, or should inform our decision on, the minimum age?
We must immediately acknowledge that the need for law (as an instrument of public policy) in the first place is because human beings are not always able to live even up to their own personal ideals, much less that of the society. In other words, human beings do not generally do the right thing because they have a deep sense of obligation. They would need some form of reward or sanction system, so society prescribes what is acceptable and unacceptable based on the collective sense of good and evil and attaches rewards to acceptable conducts and sanctions to unacceptable conduct.  So, if we all can know and do the right things habitually, we wouldn’t really need laws. It then follows that practical reasonableness demands that we legislate the age for marriage.
What then should be, or should inform our decision about the right age? Should it be expressed as a number or as a state of being? Talking about maturity, it is a relative term. Maturity for one purpose may not qualify for maturity for another purpose; just as maturity for one purpose in a certain society may not qualify for maturity for the same purpose in another society. Even though many legal systems adopt 18 years as the age of legal majority for contractual capacity and criminal responsibility, I do not think those who made those laws thought of the number as a “sacred number” that once attained becomes endowed with innate abilities just by the fact of attaining the age. It should be thought of rather as a decision of convenience which has taken into consideration the psychological, physiological and social circumstances of human development.
Still on the right age for a girl to get married, another question that comes to mind is whether the emphasis should be on the psychological or physiological factors? To answer this question, we must also first answer another question ¬ what is the purpose of marriage? It is only when we know the purpose of marriage that we can say who is qualified to get into it. I believe that marriage is first about companionship before it is about procreation. Consequently, getting into marriage requires that the proposed partners have the requisite psychological maturity to decide that they want to spend the rest of their lives together. A man is not doing a woman more favour in marrying her, than the woman is doing the man in agreeing to marry him. I would conclude that physiological changes in the body of a girl does not make her mature for marriage, not until she is able to make an informed decision with all the requisite safety mechanisms such as parental counsel. That a girl can give birth to a child, even without any age related complications does not mean she is mature enough to be a wife and a mother. Similarly, the fact that a boy can impregnate a girl does not make confer the status of a husband on him. The problem is that most religious and cultural practices are usually skewed against the weak and vulnerable, with all the trappings of paternalism and patriarchy.   I will really be interested to know how many educated and well off parents have married off their daughters before they finish primary school, or even secondary school. Note, I did not say “can marry off”, because many will join Yerima in claiming they can!
Let me introduce another consideration here. This is borrowed from a post by a Muslim friend on Facebook. If we preach education as a public good and we acknowledge that education enhances the quality of life of the girl child and eventually that of the family, why don’t we allow her to get at least a secondary education? That puts her age for marriage at somewhere around 16-18 years. But if a girl child is given unfettered access to quality education with an assurance of a better future deriving from it, how many would opt to get married instead? And how many would opt to get married to men older than their fathers or even grandfathers? The problem is deeper than just the appropriate age for marriage. It is more about our attitude towards the weak and vulnerable.
To be continued…
Leonard Ugbajah is a lawyer with deep interest in public policy. He is based in Abuja, Nigeria. He can be reached at basileajuris@yahoo.com.