Protection of the Girl Child Under the Nigerian Law
Denen S. Orkar Esq
Gender is a critical issue in different spheres of life for the Africans in general, and much more, the Nigerian in particular. In other words, whether a person is male or female plays such a fundamental role in the determination of so many important every day activities in our clime. From experience, the male gender, especially the boy child, naturally enjoys the pride of place in almost every Nigerian society. The girl child has often suffered neglect, especially in the traditional settings in Nigeria. Thus, the courts have often had to wade-in so as to protect the female gender and especially the girl child from harsh cultural realities of many cultures.
In this discourse, particular attention is paid to constitutional interpretations, especially section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
CAN A GIRL UNDER AGE 14 PROPERLY GIVE CONSENT TO SEXUAL INTERCOURSE?
Cases abound where girls who are ‘minors,’ well under the age of 14 are either maliciously raped, or, sadly lured into sex, and the defense often brandished by most of their assailants is that they duly obtained the consent of these girls before the act. In cases of rape, one finds some often ridiculous defences suggesting that, there was no penetration. Well, vide sections 39(c), and 282(1)(e) of the Penal Code, the law is against sexual intercourse with a girl who is under the age of 14 years, and whether she gives her consent or not, is irrelevant and will not inure in favor of the offender.
In the case Musa Natsaha v. The State ELC (2017) 2343 SC p.1 a 3(three) year old girl was raped by the appellant herein. At the time of giving evidence at the Kano State High Court, she was 7 years old already. The Supreme Court held to the effect that pursuant to S.39(c) and 282(1)(e) of the Penal Code, the question of consent of a prosecutrix (victim of rape) could not even come up for consideration where the victim is below 14 years of age. The apex court had previously held this position in several decided authorities including but not limited to the case of Shuaibu Isa v. Kano State (2016) LPELR – 400 11 (SC).
The simple effect of the decision of the Supreme Court of Nigeria in giving vent to those provisions of the Penal Code is that if you live in northern Nigeria, it is an offence to have any sexual encounter or intercourse with a girl if she has not yet attained the age of 14 years. The law does not empower such a girl to be able to give consent to such an act.
CAN A FEMALE CHILD INHERIT HER FATHER?
All over Nigeria, several cultures have out-rightly stated preference for boys or the male child inheriting their deceased fathers, where such fathers may have died intestate. Such cultures often proceed to clearly ban, or prohibit the girl child from having any stakes in the inheritance of their deceased fathers. But in a burgeoning number of cases, the apex court as well as the Court of Appeal have arisen to declare such customs to be contrary to natural justice, good conscience, and equity, and therefore, unconstitutional, null and void. It is apt to explore a few examples underneath.
The Court of Appeal held in the case of Mojekwu v. Mojekwu (1997) 7 NWLR (Pt.512) 283 that for a custom or customary law to discriminate against a particular sex is to say the least an affront on the almighty God himself! The court then proceeded to declare that the Oli-Ekpe custom of Nnewi is repugnant to natural justice, equity and good conscience.
In the case of: Mrs. B. Motoh & Anor. v. E. Motoh (2011) 16 NWLR (pt.1274) 474 the Court of Appeal had declared that the native law and custom of Umuanaga Awka which discriminates against female children of the same parent and favors the male child who inherits all the estate of their father to the exclusion of his female siblings is repugnant to natural justice, equity and good conscience.
In the celebrated case of Mrs. L.C. Ukeje & Anor. v. Mrs. G.A. Ukeje (2014) NSCQR Vol.58 p.487, the Supreme Court held that “no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently the Igbo customary law which disentitles a female child from partaking in the sharing of her deceased father’s estate is in breach of section 42(1) and (2) Constitution, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the Constitution.”
Also, in the case of O. Anekwe v. M. Anekwe (2014) 58 NSCQR 37, the Supreme Court descended quite heavily on the perpetrators of a custom which threw out a widow of a marriage because she did not have male children but only female children. The apex court described the practice as not only barbaric but also punitive, and chastised even the counsel representing the proponents of such culture.
It should be noted that the girl child is meant to be protected at all cost. Anything short of this is unacceptable in the eyes of the law and good conscience.
