Senator Yerima and Constitutional Review
- By Maryam Uwais
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 the texts’ (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 the renunciation 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 and Zamfara
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 intimate
exploitation (including forced intimate 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-womanly
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 benefiting from economic activity and earning a decent income. 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 Nation 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.
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