Marriage Reform?

About eight years ago if you recall, the most topical issue in Nigeria was the "re-introduction" of the Shari'ah law and its implications for Nigerian Muslims and others. The major issue then was whether the so-called Shari'ah states could make laws imposing punishments based on the Shari'ah in a "secular" state like Nigeria. You might also recall that the easiest argument against the "adoption" of Shari'ah then was that such laws should apply only to Muslim's private/family law, i.e. marriage and inheritance.
 
The politics of the time ensured that issues were sufficiently confused. But we were assured that so long as Islamic law was restricted to the private family realm, we (Muslims) could trust the Nigerian state to back off our rights to enjoy its application. If you believed that promise, please get ready to be shocked out of your naivete. Because now, a new controversy has been quietly ignited. This time, the target is the entire Islamic family system, not just the criminal laws. And the means for achieving this is a surreptitious attempt to carry out a "comprehensive reform" of the entire corpus of Nigeria's Family Law system through the Nigerian Law Reform Commission.
 
Two things we should quickly note. One, issues regarding Family Law in Nigeria are, governed by three different and independent legal systems. These are the Marriage Act (for those who choose to get married on the one-man-one-wife setup of the Marriage Registries), Customary Law and Islamic Law.
 
Secondly, and more importantly, you only reform something that is defective. There can be no argument that the entire Nigerian legal system, and indeed any legal or other system based on foundations other than the Shari'ah is fundamentally defective and needs to be reformed. But as for Islamic law, we have no doubt that no authority, no matter how high or well-meaning, can reform any aspect of Islamic law.
 
Now, to the Commission's proposals on the "reform" of Islamic personal law. Constraints of space will not permit a detailed analysis of every one of the Commission's proposals. So, for ease of reference, we will only itemise a few of the relevant points, as disclosed in the report of the "National Workshop on the Reform of Family Law in Nigeria" published on page 68 of The Guardian on 27/2/2007.
 
The basis of the so-called reform is an intention to "achieve equality in the status of marriages under Islamic Family Law and Customary Family Law and the Marriage Act". This proposal on the face of it looks innocent, since it could be argued that the intention is to remove the blatant discrimination between the marriages. But as we shall soon see, the Commission's proposals thoroughly belie this intention.
 
How can you even propose to achieve equality between two entirely disparate systems of laws, without one giving way to the other? Indeed, the obvious result of the Commission's ill-advised foray is to strip Islamic family law of its unique characteristics in an attempt to make it uniform with the Marriage Act.
 
(1) The age of marriage should be fixed at 18years in order to avoid the problem of under age marriages, as provided in the constitution." But why the age of marriage? Why not the age of sexual consent? In other words, it will continue to be legal and legitimate for people under 18 to have sexual relations (and commit abortions, run the risk of HIV, etc) , as long as they do not get married. The sheer inanity of this proposal is amazing. The fallacy of this proposal lies in the argument that girls who get married early run the risk of VVF and maternal mortality. But we should ask, do people who get married late not run any risk at all?
 
The much touted VVF and other complications associated with early births are only a symptom of the poor medical attention received, and any serious attempt at reform should look into this.
 
(2) Marriage between first cousins should be made unlawful under the proposed law." Now, we all know that marriage between first cousins is proper and legitimate under our Shari'ah. We do recognise that it may be discouraged in particular cases (just like marriage between two totally unrelated people) on health, social or other justifiable grounds. But the attempt at a blanket criminalisation is much like criminalising all heterosexual marriages, just because some people could pass on sickle cell, HIV; or some other illness to their partners or children. It simply doesn't make sense.
 
(3) It should be compulsory for Islamic marriages to be registered while non-registration should attract penalty in graduated scale commensurate with the length of delay" (A similar proposal is made in respect of divorce). One is not sure what this is intended to achieve. What is the legal effect of such registration? Which authority should register such marriages and why? Existing laws require "officiating ministers" to issue certificates in evidence of marriage. The mischief is partly revealed in the proposal which require that the bride must be present when the marriage is being registered. Is her presence at the ceremony not indicative of consent? Admittedly, the proposals also recommend that there should be no unwieldy or cumbersome process.
 
(4) Probably deliberately, the proposals do not seek to explicitly outlaw polygynous marriages (one man, two or more women). But we can see a subtle attempt to discourage or even criminalise it, since the whole idea is to make marriages conducted under the Marriage Act (l.e. monogamous marriages) identical with customary law and Islamic marriages. In this regard, we also note that the proposals seek to define marriage, as "a union between a man and a woman). Can anybody begin to contemplate the mischief intended by this scheme?
 
(5) Also, the proposals are said to be an attempt to introduce equality between the different forms of marriage. We would have expected that the discrimination present in the Evidence Act and the Criminal Code which both permit only "Christian" (i.e. monogamous/ registry) marriages to be protected by privilege and confidentiality should have been addressed. Under Nigerian law, a husband and wife of a Muslim or customary marriage can be compelled to give evidence against themselves in court, but not a husband and wife in a "Christian" marriage. Similarly, a Muslim husband and wife can be charged for conspiring with each other, but not spouses in a "Christian" marriage. How could the "law reform" Commission have missed these?
 
Now this is not to say that there is no positive aspect of the report.
The criminalisation of homosexuality (which is not a reform, since the criminal code already makes such bestial conduct punishable), the call for the reform of the divorce process to make it more realistic, the suggestion that a marriage should be deemed to have taken place once the parties are "pronounced husband and wife at the celebration" etc should fall within the real purview of the Commission's actions. But on the whole, the recommendations fall far below par. "Law Reform" in isolation of social conditions is worse than merely being an exercise in futility, it could ignite avoidable crises and cause major damage well beyond the obviously limited imagination of the reformers.
 
In conclusion, we should place all Muslims on notice, and, on alert. We should be wary of yet another creeping attempt to further whittle down our fundamental rights, this time, under the guise of "law reform". We should be watchful. And, we should be prepared to offer maximum permissible resistance to the machinations of idle or crusading "experts" who find it so difficult to leave us alone. They will soon try to pass the proposals into law. This is only just the beginning.....
 
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dawah to the people