Legal Protection of the Girl Child against Child Marriage (Aure Yarinya) in Nigeria By Olayinka Oluwakemi Adeniyi Submitted in partial fulfilment of the requirements for the degree LLD (Human Rights) In the Faculty of Law University of Pretoria August 2016 Supervisor: Prof Michelo Hansungule University of Pretoria Declaration of Originality Full name of student: ADENIYI OLAYINKA OLUWAKEMI ………………………………………………………………………………………………. Student number: 13258428 1. I understand what plagiarism is and I am aware of the University’s policy in this regard. 2. I declare that this thesis is my own original work. Where other people’s work has been used (from a printed source, internet or any other source), this has been properly acknowledged and referenced in accordance with department requirements. 3. I have not used work previously produced by another student or any other person to hand in as my own. 4. I have not allowed and will not allow, anyone to copy my work with the intention of passing it off as his or her own work. Signature of student:………………………………………. Signature of supervisor:…………………………………… ii Dedication To God - the author and the finisher of my faith. “Father, all the glory belongs to you.” iii Acknowledgements I thank the grace of God for this doctoral programme. The journey of life is a lonely race full of uncertainties and risks but many times fans and supporters give you the impetus to forge ahead even when weariness seems to weigh you down. All through the journey of this programme, I can say that I have been and I am an embodiment of the grace that has surrounded me with strong people for guidance, for learning, for support and encouragement in all areas, spiritual, academic, financial, moral and otherwise. I am particularly grateful to the following people. Firstly, my supervisor Prof Michelo Hansungule for being a father and a guide. His dedication to the progress of this programme is deeply appreciated. Dr Yinka Akanle and Ms Seri Solebo who took time out of no time to read and critique my thesis and give suggestions towards making it a success. My father Mr Okanlawon Donald Akinnibosun, my elder sister Mrs Omotinuolawa Olowu and her husband Dr Adekunle Olowu for all their support and encouragement, and my younger brother Akinkunmi Akinnibosun for running all the errands. I also like to appreciate my immediate younger brother Mr Akinpelumi Akinnibosun for his contribution towards the latter part of this program. To everyone I am grateful. Most importantly, my husband Rev Amos Adeniyi for pushing me to take the step and for his support all through. “MC, thank you for always being there.” And my children Fortune, Flourish and Favour for their understanding. “Wena, we made it together”. Last but not least, I must acknowledge the financial support of the Margaret McNamara Memorial Fund (MMMF) for this LLD programme. iv Abstract The purpose of this study is to interrogate how law, and Nigerian domestic law in particular, can be used to bring about a change in society with respect to child marriage. Despite international and regional prohibitions and national laws against the sexual abuse of the girl child in Nigeria, the practice of child marriage persists, predominantly in Northern Nigeria which is known for its strong religious and cultural leanings. Of the women in this part of the country, 45% are given out in marriage before their fifteenth birthday and usually with the obligation to become mothers within the first year of marriage. The reality is that marriage for girls of twelve years or even younger is not unknown. The significance of the problem however is related to the fact that certain aspects of Nigerian law, while not expressly supporting child marriage, acknowledge or recognise the practice. The issue is further complicated by inherent contradictions in the national jurisprudence. The existence of multiple conflicting and contradictory legal provisions, particularly with respect to the age of a girl child, and the admission in some of the Nigeria’s legislation that child marriage exists, raise questions about the condonation of the practice. In addition, there is customary law and Islamic law which do not necessarily reject the practice and which are ironically part of the applicable laws in Nigeria’s legal system. Further aspects of the discourse are the legalities which inhibit the direct application of ratified international and regional treaties, the express decriminalisation of sexual intercourse with a girl child as long as it is within marriage, and the complexities associated with federalism. The implications and consequences of child marriage have moved out of the private domain to the point where they now constitute bigger crimes in the v public sphere, namely the danger to the lives of individual girls and the threat to the development of Nigerian society. This thesis looks at the practice of child marriage in general and specifically the issues of age and consent as they relate to capacity and consent to marriage, sexual intercourse and the right to non-discrimination and equality under Nigerian jurisprudence. It examines the nature, effects and legality of child marriage by investigating the reasons for the practice and the nature of legal response in Nigeria. It considers the position of the legal systems of constituent states on the application of international and regional human rights instruments to protect the girl child against child marriage, and evaluates the role of the Federal Government of Nigeria in dealing with the issue in light of its signature and ratification of international treaties and regional charters on the protection of the girl child. The thesis further analyses the conflicts that emanate from the interplay of differing customary law, Sharia and constitutional provisions on child marriage in Nigeria’s competing legal systems. Lastly, it proposes a law making model for the prohibition of child marriage by prescribing punishment and addressing other child marriage related issues. vi Table of Contents Declaration of Originality ............................................................................................................... ii Dedication ........................................................................................................................................... iii Acknowledgements .......................................................................................................................... iv Abstract ................................................................................................................................................ v List of abbreviations .................................................................................................................... xii CHAPTER ONE .................................................................................................................................. 1 Introduction ...................................................................................................................................... 1 1.1 Background ............................................................................................................................ 1 1.2 Problem statement ........................................................................................................... 11 1.3 Thesis statement............................................................................................................... 11 1.4 Research objectives ......................................................................................................... 12 1.5 Research questions .......................................................................................................... 13 1.6 Research Methodology ................................................................................................... 14 1.7 Limitations .......................................................................................................................... 15 1.8 Literature review ............................................................................................................... 15 1.8.1 Knowledge gap and contribution ........................................................................... 23 1.9 Chapter outline .................................................................................................................. 25 CHAPTER TWO ................................................................................................................................ 28 Theoretical framework ................................................................................................................... 28 2.1 Introduction ........................................................................................................................ 28 2.2 Feminist theory ................................................................................................................. 28 2.2.1 African feminism ....................................................................................................... 33 2.3 Rights theory ...................................................................................................................... 39 2.3.1 Universalism versus cultural relativism ......................................................... 42 2.3.2 The theory of state sovereignty as it relates to the rights theory ..... 50 2.3.3 Monism and dualism ............................................................................................... 54 2.4 Sociolegal theory..............................................................................................................