By E. Momoh, Esq.

May 23 reminds us of the need for more awareness and preventive actions towards ending obstetric fistula. Beyond the provision of adequate and accessible maternal healthcare system across Nigeria, child marriage is a major precursor of obstetric fistula which is an injury resulting from a prolonged obstructed labour (childbirth). While childbirth is associated with marriage, women below 15 years that have developed obstetric fistula account for about 90% of the fistula cases in Nigeria. The body of a young girl not yet sufficiently developed often leads to obstructed labour thereby making child marriage a precursor. Subsequent surgeries can be unsuccessful and the symptoms which can include uncontrollable faeces, urine leaks and petrifying stench can be very tragic.

Therefore, ending obstetric fistula also requires the promotion of marital rights and the civic role of every Nigerian. In most cases, child marriage violates right to dignity, personal liberty and freedom of thought and conscience since the child is often not mature enough to make an informed decision. These rights are respectively guaranteed under sections 34, 35 and 38 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 21 of the Child Rights Act also prohibits marriage of person below 18 years. However, these constitutional and statutory rights are mere formalities as Item 61, Part 1 of the Second Schedule to the 1999 Constitution takes away the power of the federal government to enforce across the federation laws relating to formation, annulment and dissolution of marriages under Islamic and customary laws. Thus, seeking promotion of marital rights under these two systems is better suited than enforcement.

A major factor promoting child marriage in Nigeria is the myth that consent of the girl child is irrelevant under various religious injunctions and customary rules.

Understanding the basic rules governing the three windows of marriage in Nigeria is therefore one way to be readily equipped in promoting marital rights in the achievement of the fistula goal.

First window – Islamic marriage

Islamic religion (the Maliki School) which is followed in Nigeria and prevalent in the North where fistula is recorded highest for Nigeria actually recognizes the rights of a father (Ijbar) to validly conclude marriage on behalf of her virgin daughters (i.e. not formerly married) irrespective of her consent. It also recognizes the right of the daughter to void the marriage at attainment of majority. Even though Islam frowns at divorce, it allows for divorce at the bequest of the wife (Khul – Quran  2:229) upon the return of dowry. In principle, these demonstrate relevancy of consent, that consent of parent/guardian is not absolute and the fact that Islam abhors forced marriage. In fact parental consent in Islam is based on the wider interest of the daughter which obviously cannot include roping one’s child into obstetric fistula as a result of age.

The second window – Customary marriage

While absence of consent of the girl child would create a valid but voidable marriage in Islam, such facts make similar marriage arrangement under customary practices entirely void. Under this second window, child marriage is usually tacitly accepted as a strategy for family survival/economic gains. However, irrespective of the culture in Nigeria (including those recognizing attainment of puberty as marriageable age), two types of consent (parent and child) must co-exist for a valid marriage to occur. See Okpanum v. Okpanum 1972 ECSLR 561; Osanwoyi v. Osawonyi 1972 10 SC 1). A

The third window – Statutory marriage

Child marriage through marriage registries and licensed places of worship is a rare occurrence since the Matrimonial Causes Act (Section 3) and the Child Rights Act (Section 21) prohibit and make null and void any marriage where either party to the marriage is below 18 years. Parental consent here is immaterial.

Role of the individual toward the 2030 goal of ending obstetric fistula

Educating and spreading the awareness of the links between child marriage and obstetric fistula. This can be done by volunteering to stop child marriage through appeals to parents and suitors on the dangers of obstetric fistula in communities where the practice is ignorantly prevalent. Practical ways include convening a meeting of family, seeking the intervention of district or respected religious leaders wherever the potential of child marriage appears. The foregoing can be more seamless if the volunteer understands the basic rules governing the three windows of marriage in Nigeria to enable him or her act or reach out appropriately. Also, using every vestige of opportunity to educate the girl child is a veritable preventive mechanism. In extreme cases, using the court system to seek annulment of consummated marriages before incidences of conception, approaching local scholars, legal experts or human rights group such as FIDA or even Police invitation can be great legal ways third parties can help promote marital rights.

1. E. Momoh, Esq.

+2349033564372

Momohlegalpedia.ae@gmail.com