Zamafara is in the news again as another lawmaker; Senator Sahabi Ya’u tries to marry a young girl without her consent. Why is this news? Because it is wrong to force someone into marriage with another person and we would like to presume that lawmakers know this. Because the High Court to which the reluctant bride took her case refused to hear the case on the grounds that hers was a matrimonial case for an Islamic court. Because, yet again the courts are refusing to look into the subjugation of a Muslim woman despite the protections given to all Nigerians under the 1999 Constitution. Considering the uproar that followed Senator Ahmed Yerima’s marriage to a thirteen year old earlier this year, it is tragic that there is still no sense of urgency about protecting the basic personal freedoms of Muslim women and girls in the north of Nigeria.
Unfortunately, the infringement of the basic personal rights of the female in the name of Islam or custom, is nothing new. According to UN statistics, in 2005 there were at least 60 million women in forced marriages across the developing countries. I think law and society are culprits in the continued refusal to be fair in the application of Islamic personal law to women and girls.
The problem with the law is manifold. The first is ignorance. Islam is a way of life and Muslims are steered by several authorities the most important ones being the Holy Quran, the Hadith, which are the sayings of Prophet Muhammad (PBUH) and the Sunnah which is the way of life prescribed for Muslims based on the teachings and practice of Prophet Muhammad. Maybe not enough people know that when it comes to the question of the consent of a female to marriage, the Quran says, “Don’t prevent them from marrying their husbands when they agree between themselves in a lawful manner.” (Q2:32) And there are many Hadiths authenticated by renowned collectors of hadith such as Sahih Buhari and Ibn Majah which indicate that Prophet Muhammad sanctioned the dissolution of any marriage which was contracted without the consent of the bride. Therefore, it is contrary to Islam to marry off any female without her consent and in this case, the reluctant bride’s father was wrong to marry her off to the Senator. On the issue of human rights, the court said “her human rights had not been violated…” But the United Nations views forced marriage as a form of human rights abuse because it violates the principle of the freedom and autonomy of individuals. So where does this leave us?
Which brings us to the second problem with law – patriarchal impunity which results in disregard for the law. Here society also plays a role because it permits men to think they are above the law and can do whatever they like regardless of what the law, any law provides. The third problem with the law is ambiguity or interpretation. Where fundamental human rights and the jurisdiction of courts are in question, the 1999 Constitution is a good place to start. The 1999 Constitution is not ambiguous about fundamental human rights and who they are applicable to and neither is it worded in anyway to suggest that the religion of a Nigerian may preclude that person from such fundamental human rights. Yet, the interpreters of law are starting a trend when they say to Muslim women – “if you marry in accordance with your religion, then we cannot guarantee your fundamental human rights”. There are two problems here. One, if a Muslim woman is trying to enforce her rights either under Islam or under the Constitution, research carried out by Women’s Right Advancement & Protection Alternative (WRAPA) indicates that the last place she would want to go is the Sharia courts because of the patriarchal impunity problem. So where else can she go? The high courts. But the high courts have refused jurisdiction on the ground that they are constitutionally prevented from hearing cases involving Islamic personal law.
Some believe that Section 262 of the 1999 Constitution which provides the Sharia Court of Appeal with jurisdiction over Islamic personal law matters, is the reason why state high courts and the federal high court will not accept any cases on Islamic personal law. However, it is not clear why the provisions of Section 262 are being interpreted so narrowly especially when there is nothing in the wordings to suggest that this jurisdiction is excusive and cannot be exercised by any other court. In fact the word used is ‘competent’ i.e., The Sharia Court of Appeal shall…be competent to decide. If, according to the Fundamental Rights Enforcement Procedure Rules 2009, “The Constitution shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them” then why are sharia and common law courts refusing to interpret forced marriage as an infringement of fundamental human rights?
As for society, its mildest sin is complacency. By staring mutely into our tea cups whilst Muslim men marry children or marry off their daughters without their consent or marry and divorce ten, twelve or seventeen times, we are all culpable.
There are several things those concerned can do. One, encourage Muslim women forced into marriage as adults or children to challenge this by going to court even at personal risk to themselves because the future and well being of our daughters, sisters and nieces is dependent on our action. Two, lawyers should take this issue all the way to the Supreme Court and get the judicial pronouncement we need on aspects of customary/Islamic law which touch on fundamental human rights and the so called exclusivity which sharia/customary courts have over personal law matters to the detriment of justice and equity. Three, a major education campaign on Islamic personal law needs to be launched for the benefit of academia, the judiciary, and religious instructors. Finally, women need to make the regulation of marriage and the protection of personal rights a campaign issue for the 2011 elections. Muslim women in Nigeria need marriage contracts the same way Muslim sisters in Pakistan, Malaysia, Indonesia and other Muslim countries do. In the United Arab Emirates where our lawmakers and elite love to go on holiday, the law is that a man with more than one wife must provide separate houses for each wife. In Nigeria a man can keep two wives in a two-bedroom house with one bathroom and kitchen between them.
All the fancy goals and pronouncements about female empowerment, women participating in politics and even girl child education projects are meaningless as long as the most basic and fundamental rights of women remain unprotected and personal laws are at the very heart of a woman’s fundamental human rights.
Oct. 26, 2010