"Senator Yerima and Constitutional Review" - By Maryam Uwais
Lawyer and child rights advocate Maryam Uwais weighs in on the child bride marriage:
Once again, Senator Yerima is in the news, claiming Islam as the basis for his argument that a girl automatically transforms into an adult of ‘full age’ once she is married, with the attendant responsibilities that relate to the renunciation of citizenship, irrespective of her age or mental capacity. Because the Senator from Zamfara State has gone public with his personal comprehension of the Shari’a, it has become necessary to respond publicly to his utterances.
It should be pointed out, however, that several media reports on the constitutional review debate at the Senate give the impression that underage marriage has been endorsed by the Senate Chambers. Facts are that S.29 of the 1979 Constitution permits a Nigerian citizen of ‘full age’ to renounce his or her citizenship by declaration in a prescribed manner, for which purpose ‘full age’ was stated to be 18 years and above.
The subsection
also provides that, ‘any woman who is married shall be deemed to be of
full age’. In its current efforts to review the Constitution, the Senate
Committee had determined that the particular subsection should be
deleted, basically because citizenship has no bearing on gender, as for
example, voting, the right to drive a car, possess a weapon or such
similar social interactions that are evolving or are germane to a
democratic Nation. Senator Yerima, however, vehemently argued (and
lobbied) against the removal of the clause, on the grounds that deleting
that clause was against (his understanding of) Islam. In his
understanding, a girl, once married, automatically assumes the full
mental capacity and responsibility to consciously make the prescribed
declaration of renouncing her citizenship.
This position needs
to scrutinized carefully, against the backdrop of similar positions
that obtain under the Shari’a and in our context, as a Nation. Does it
then follow that the married girl who is below 18, at election time,
would be permitted to vote, or is her not being issued a voters card
un-Islamic? Is the Senate now going to make an exception to that law,
permitting her to vote, or even drive, in accordance with (Senator
Yerima’s understanding of) Islam?
Contrary to the position
conveyed by the Senator from Zamfara, there is certainly no unanimity of
positions on such contemporary matters of social interaction, within
Islamic jurists or the various Schools of Thought. Surely where there is
‘silence in thetexts’ (i.e primary sources) or lack of unanimity as
regards a particular practice, that opening allows for a society to
determine for itself what is in its best interest (maslaha), in its own
context. What about married Muslim girls who inherit property? Is it not
the position that in some cases, where not considered sufficiently
mature (‘sufaha’, based on Qur’an 4:6), such property remains in the
custody of her guardian, until she grows to be intellectually mature?
This would, of course, depend on her age, mental capacity and the size
and nature of the property. Why does such property not devolve upon her
automatically upon marriage, to deal with it as she wishes,irrespective
of her mental capacity? There definitely appears to be no basis, under
the Shari’a, that would compel a girl to deal with matters of such
gravity as therenunciation of citizenship, merely because she is
married. Islam is certainly not so presumptuous or harsh as to burden
her with what she is mentally and physically incapable of bearing. Her
guardian is permitted to determine the age or stage at which such a
child can be entrusted with such grave responsibilities, the assessment
of her mental capacity being the main determinant.
As a Muslim
woman (without pretensions of scholarship) forever striving for
knowledge, research into these matters has revealed that in matters of
social interaction (mu’amalat), there is a lot of latitude in what is
permitted, unless it is expressly prohibited by a clear text. The rules
are certainly not so definitive. What is also evident is that the ‘best
interests of the child’ is a paramount consideration within Islam, along
with the principle of public good (maslaha or istislah). The
operational rules are not defined (probably deliberately, in my humble
view) and the determination of such issues is best left to the
experience, custom and context of the particular society. The Qur’an
provides that the predominant consideration in matters relating to
children would depend on the point at which they can be said to not be
‘sufaha’ (mentally immature) anymore, in the context of that particular
community.
It is interesting that Senator Yerima would rather
link the weighty and dispassionate subject of citizenship with his
understanding of gender vis a vis his perception of the age of marriage,
rather than with other matters of social interaction, such as those
relating to inheritance rights, driving or even voting. Indeed,
citizenship is a contemporary phenomenon within the Sharia, as in the
early days the concept of citizenship had not been defined and people
traveled across boundaries, without restriction. In a Muslim community,
when matters evolve, it is for scholars or experts in Islamic legal
philosophy-‘Usul-al-Fiqh’- and juristic reasoning (and not even those
solely learned in the Qur’an-‘Mussafirun’, the Fiqh-‘Fuqaha’ or the
Hadith-‘Muhaddithun’), to analyze the issues with a view to arriving at
an appropriate position for the context of that relevant community. In
this particular instance, it is certainly perplexing for the Senator to
insist so categorically that even a married ‘intellectually immature’
girl must be permitted to renounce her citizenship, irrespective of her
mental capacity. The foundation for such a general and sweeping
statement within the Shari’a is difficult to locate.
The
public good remains the overriding consideration in the process of
analytical reasoning by those qualified for the purpose, so long as the
deductions are not in direct conflict with the primary sources of the
Shari’a. Therefore, in following arguments repeatedly canvassed by the
Senator, it may be necessary to examine the context in which we live, to
determine what is good, for the purpose of encouragement and support,
and what remains harmful to our society, to be confronted, discouraged
or prohibited by Muslim jurists.
Today the North of Nigeria
continues to throw up Nigeria’s poorest indices on matters relating to
healthcare, nutrition, education, empowerment and productivity.
Consequently, unemployment, insecurity, violence and poverty remain rife
in that region. Statistics have it that 2/3 of the 102 million poor
people in Nigeria live in the North. Extreme poverty in the North
translates into extreme vulnerability to the effects of climate change,
food security and so much more. Incidentally, over half of the women in
the North are married off by the age of 16 and commence childbirth
within the first year of marriage. Also, of the 16 million births by
girls below the age of 18, 9 out of 10 of them are married.
Facts are that nearly half of all the children under 5 years of age are
malnourished in the North East zone, with women and children in the
nutrition ‘high-burden’ States of Adamawa, Bauchi, Borno, Gombe, Jigawa,
Kano, Katsina, Kebbi, Sokoto, Yobe andZamfara suffering the most from
malnutrition, wasting and stunting. This singular factor remains the
underlying cause for 53% of under-5 deaths. If the child is stunted in
its first 1000 days, that condition is irreversible, so the future of
these children, and the larger population, is permanently shortchanged.
The health and nutritional needs of mothers, new-borns and children are
closely linked, with young mothers accounting for a majority of severely
malnourished children.
Multiple health risks arising from
child marriage include the sexual exploitation (including forced sexual
relations) that she is subjected to, as well as limited access to
reproductive health services, despite the real and present danger of
contracting diseases such as HIV/AIDS, STIs (sexually transmitted
diseases) and the debilitating ailment of VVF/RVF (VVF-a tear in the
flesh between the vagina and the urinary passage, usually due to
prolonged labour, resulting in uncontrolled urine or feces in the case
of recto-vaginal fistulae-RVF), including the abandonment that comes
with such ailments. Nigeria, with 2% of the world’s population, has 10%
of VVF patients. Three-quarters of those with VVF/RVF are young girls
who are not yet physically mature but have suffered trauma in their
first pregnancy.
Statistics show that stillbirths and deaths
are 50% more likely in babies born to mothers younger than 18, as
against babies born to mothers above that age. Each day, 144 women die
in childbirth in Nigeria, with the North East alone having 5 times the
global rate of maternal mortality. The lack of information and access to
support ultimately results in psycho-social and emotional consequences,
domestic violence, abandoned (street) children, with the attendant
deprivations of their rights and freedoms, whose wellbeing is severely
compromised. The prevalence of the abuse of the right to the exercise of
divorce by Muslim men has only compounded the situation, leading to so
many negative social deviations such as substance abuse (that has become
so rampant), commercial sex work and the complete loss of values in the
entire family set up.
Many of these adolescents are married
off to men much older than they, and because of the associated power
differentials, this singular factor impedes communication between them,
with the girl having no negotiation skills in crucial decision-making
that may affect her life. Having lost out on these critical life
opportunities, these married adolescents can never aspire to living as
meaningful and productive members of society. Not being able to
participate actively in the community translates to their losing out
completely on benefitting from economic activity and earning a
decentincome. Many of these girls remain excluded from community life,
having been separated from peers and family members by marriage.
Depression sets in. A life of diminished opportunities. The community
loses out completely; the economy cannot improve where half its
population is stuck in this rut.
Child marriage, from
available statistics, ultimately hampers the efforts of these young
adolescents from acquiring an education, as sooner than later, they find
it difficult to combine the onerous responsibilities of being a wife
and mother, with schooling. They drop out, if they have not been removed
for the purpose of marriage, in the first place. Consequently, 70.8% of
young women aged 20-29 in the North West zone are unable to read or
write. Due to the fact that these girls are deprived so early of an
education (including the access to information and knowledge) they
remain bereft of the purchasing power necessary for an adequate diet,
healthcare,skills, or even recourse to support in emergencies, all of
which would enable them rise above the circumstances of abject poverty.
It is paradoxical that Muslims like Senator Yerima would rather their
wives and daughters be treated by female medical personnel if they fall
ill, and yet they are, by continuously advocating for child marriage,
deliberately closing the avenues for girls to aspire to such
professions.
Deprivations of formal and non-formal education
translate, at such an early age, into restrictions on mobility, domestic
burdens, the denial of sundry freedoms in respect of survival,
development and participation, as well as the loss of adolescent years.
Indeed, children of young, uneducated mothers are also less likely to
attain high levels of education, perpetuating cycles of low literacy and
limited livelihood opportunities. Child marriage, therefore, ultimately
deprives societies of the intellectual and financial/livelihood
contributions of girls, and of their offspring. It is no wonder then
that the North continues to portray such poor ratings in almost all
aspects of human endeavour.
As a consequence, MDGs 1 (relating
to eradicating extreme poverty and hunger), 2 (on education), 4 (on
reducing child mortality), 5 (on maternal health), 6 (on combating
diseases) remain unattainable goals (at least in Northern Nigeria), if
we cannot confront the consequences and implications of child marriage.
Evidently, the geography of poverty requires a coherent and urgent
Northern strategy and a solution to the instability that has bedeviled
the region in recent years. Against this background of grim data, we can
ill afford to play politics with the obvious deficiencies in our human
capital. The North, as an intrinsic part of Nigeria needs to improve on
all fronts, to impact positively on Nigeria’s progress and support its
growth. Since child marriage has all these devastating and diminishing
implications, surely checking the increase in the practice can only
trigger and catalyze positive growth, in so many dimensions.
It is certainly not mandatory in Islam that girls must be married off as
minors, so to keep insisting that this practice must remain sacrosanct,
given the background of needs in Northern Nigeria, is incongruous, even
under the Shari’a. Where a practice is determined to be merely
permissible and not mandatory, it is considered practicable and entirely
feasible within Islamic jurisprudence, to discourage or prohibit it,
where it is found to be so harmful to individuals and to the community.
Countries such as Yemen, Egypt, Morocco, Tunisia, Algeria, Somalia and
Bangladesh, with majority or high Muslim populations have set a minimum
age for marriage as 18, in the acknowledgment that there are serious
social, physical and mental health risks associated with child
marriages. This progressive step became necessary, in that these
indisputable facts placed a heavy burden on the accountable and
God-fearing leadership in majority Muslim countries, to protect the
vulnerable in their midst.
It is, therefore, not unreasonable
to expect that educated elite and public figures such as Senator Yerima,
being conscious of their grave responsibilities to prohibit harm and to
enjoin good in our own context, should actually discourage this
devaluing and belittling practice of early marriage, in the public good,
for the protection of the vulnerable and the realization of social
benefits. To enable our girls attain their fullest possible potential is
definitely a target that Senator Yerima should also be working
passionately towards, along with the rest of Nigerians who yearn for a
better future.
Indeed, the overriding objectives of the Sharia
include the promotion of human dignity, justice, compassion, the
removal of hardship, the prevention of harm, the realization of the
lawful benefits of the people, and the education of the individual by
inculcating in him a sense of self discipline and restraint, which aims
are by no means exclusive. All else may be adapted to achieve these
ends, which measures may encompass matters of concern not only to law
but also to economic development, administration and politics. For those
that reflect, the hardship that these little girls experience, where
married off and divorced soon after, so wantonly, is certainly
unacceptable within the faith.
Although the fundamentals of
faith and the practical pillars on which they stand remain immutable in
principle, they may be interpreted and justified at the level of
implementation in the exercise of public good. This process must of need
be carried out solely by persons learned and eminently qualified to
speak on the subject matter in question. We must always bear in mind
that the ‘appropriation’ of divine authority in religious interpretation
is best left to Scholars learned in Islamic legal philosophy and
analytical reasoning. Having acquired the requisite knowledge and
expertise (including the capacity to weigh the various views in the
particular sphere of learning in the context of our times), these
Jurists would also need to have imbibed, at the barest minimum, the
attributes of humility, compassion, reflection, wisdom, self-restraint,
diligence, objectivity, along with piety. Our learned Scholars must
stand up and be heard, rather than remain silent on matters that so
adversely affect us as individuals, as a region, a N ation and as members
of a global community, which challenges paradoxically controvert the
deeper meaning and purpose of the Shari’a.
Back to the issue
in contention, it is important to commend the thinking behind the
decision to delete the constitutional clause that seeks to lumber even
an ‘intellectually immature’ girl, where married, with the grave
responsibility of the power to renounce her citizenship, thereby
elevating the subject of citizenship to the level whereby both men and
women have similar responsibilities, without discrimination. It is hoped
that ultimately, members of the Senate would reflect deeply on the
implications of their recent action and revisit their decision to retain
the contentious clause, if only to ensure that every Nigerian citizen
of full age, without distinction, is subjected to similar standards and
responsibilities under the provisions of our Constitution.
Maryam Uwais MFR
Chairperson, Isa Wali Empowerment Initiative, Kano
20th July 2013
"Senator Yerima and Constitutional Review" - By Maryam Uwais
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