Human Identity: Child Rights and the Legal Framework for Marriage in Nigeria

Abstract

Colonial English heritage and its interaction with local customs in West Africa have been the subject of much debate. Its impact runs through the fabric of the life of the nation, from religion to sociological and sociolegal frameworks. The tension engaged is most profound within the framework of marriages and its effect on children's rights. Illegitimacy, for instance, as understood in Common Law is a concept unknown to Nigerian customs. In Nigeria, customary law allows and envisages polygamy, and a man's adultery is perceived as “a heroic feat.” This is not so for a woman, translating to a tension on premarital and postdivorce relationships expressed in diverse ways. It is easily verifiable that in Nigeria, births out of marriage are attributable more to the nature of the marriage structure and patriarchy than to juvenile delinquency. For women, this single motherhood is often a question of self-preservation or survival. Although strengthening welfare systems and according equal rights to children seem to have been effective in catering to the welfare of children and reducing the number born out wedlock in some jurisdictions, this approach is likely to yield the opposite result in Nigeria. Recently, retention of the Common Law doctrine of illegitimacy was canvassed as “punishment for the misdeeds of parents,” which seems to indict misconduct in the question of birth out of wedlock in Nigeria. This article examines the validity of this claim in the light of Nigeria's sociolegal milieu vis-a-vis the right of a child to identity, origin, and self-actualization. It concludes that although discrimination may have short-term benefits for a privileged class, equality provides a society with an enduring platform for conversation, dialogue, cohesion, and realization of developmental aspirations. The article proffers recommendations on reform and policy direction that allow for growth of customary law in relation to family and child rights while engaging masculinity in a constructive manner.

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