Ahmed Sani, marriage and a girl’s ‘full age’ (I)

Because the Senator from Zamfara State has gone public with his personal comprehension of the Shari’a, it has become necessary to respond publicly to his utterances. It should be pointed out, however, that several media reports on the constitution review debate at the Senate give the impression that underage marriage has been endorsed by the […]

Because the Senator from Zamfara State has gone public with his personal comprehension of the Shari’a, it has become necessary to respond publicly to his utterances.
It should be pointed out, however, that several media reports on the constitution review debate at the Senate give the impression that underage marriage has been endorsed by the Senate. Facts are that S.29 of the 1999 Constitution permits a Nigerian citizen of ‘full age’ to renounce his or her citizenship by declaration in a prescribed manner, for which purpose ‘full age’ was stated to be 18 years and above. The subsection also provides that, ‘any woman who is married shall be deemed to be of full age’. In its current efforts to review the Constitution, the Senate Committee had determined that the particular subsection should be deleted, basically because citizenship has no bearing on gender, as for example, voting, the right to drive a car, possess a weapon or such similar social interactions that are evolving or are germane to a democratic nation. Senator Yerima, however, vehemently argued (and lobbied) against the removal of the clause, on the grounds that deleting that clause was against (his understanding of) Islam. In his understanding, a girl, once married, automatically assumes the full mental capacity and responsibility to consciously make the prescribed declaration of renouncing her citizenship.
This position needs to be scrutinized carefully against the backdrop of similar positions that obtain under the Shari’a and in our context as a nation. Does it then follow that the married girl who is below 18, at election time, would be permitted to vote, or is her not being issued a voters card unIslamic? Is the Senate now going to make an exception to that law, permitting her to vote, or even drive, in accordance with (Senator Yerima’s understanding of) Islam?
Contrary to the position conveyed by the Senator from Zamfara, there is certainly no unanimity of positions on such contemporary matters of social interaction, within Islamic jurists or the various schools of thought. Surely, where there is ‘silence in the texts’ (i.e. primary sources)or lack of unanimity as regards a particular practice, that opening allows for a society to determine for itself what is in its best interest (maslaha), in its own context. What about married Muslim girls who inherit property? Is it not the position that in some cases, where not considered sufficiently mature (‘sufaha’, based on Qur’an 4:6), such property remains in the custody of her guardian, until she grows to be intellectually mature?
This would, of course, depend on her age, mental capacity and the size and nature of the property. Why does such property not devolve upon her automatically upon marriage, to deal with it as she wishes, irrespective of her mental capacity? There definitely appears to be no basis, under the Shari’a, that would compel a girl to deal with matters of such gravity as the renunciation of citizenship, merely because she is married. Islam is certainly not so presumptuous or harsh as to burden her with what she is mentally and physically incapable of bearing. Her guardian is permitted to determine the age or stage at which such a child can be entrusted with such grave responsibilities, the assessment of her mental capacity being the main determinant.
As a Muslim woman (without pretensions of scholarship) forever striving for knowledge, research into these matters has revealed that in matters of social interaction (mu’amalat), there is a lot of latitude in what is permitted, unless it is expressly prohibited by a clear text. The rules are certainly not so definitive. What is also evident is that the ‘best interests of the child’ is a paramount consideration within Islam, along with the principle of public good (maslaha or istislah). The operational rules are not defined (probably deliberately, in my humble view) and the determination of such issues is best left to the experience, custom and context of the particular society. The Qur’an provides that the predominant consideration in matters relating to children would depend on the point at which they can be said to not be ‘sufaha’ (mentally immature) anymore, in the context of that particular community.
It is interesting that Senator Yerima would rather link the weighty and dispassionate subject of citizenship with his understanding of gender vis-à-vis his perception of the age of marriage, rather than with other matters of social interaction, such as those relating to inheritance rights, driving or even voting. Indeed, citizenship is a contemporary phenomenon within the Sharia, as in the early days the concept of citizenship had not been defined and people travelled across boundaries, without restriction. In a Muslim community, when matters evolve, it is for scholars or experts in Islamic legal philosophy-‘Usul-al-Fiqh’- and juristic reasoning (and not even those solely learned in the Qur’an-‘Muffasirun’, the Fiqh-‘Fuqaha’ or the Hadith-‘Muhaddithun’), to analyze the issues with a view to arriving at an appropriate position for the context of that relevant community. In this particular instance, it is certainly perplexing for the Senator to insist so categorically that even a married ‘intellectually immature’ girl must be permitted to renounce her citizenship, irrespective of her mental capacity. The foundation for such a general and sweeping statement within the Shari’a is difficult to locate.
The public good remains the overriding consideration in the process of analytical reasoning by those qualified for the purpose, so long as the deductions are not in direct conflict with the primary sources of the Shari’a. Therefore, in following arguments repeatedly canvassed by the Senator, it may be necessary to examine the context in which we live, to determine what is good, for the purpose of encouragement and support, and what remains harmful to our society, to be confronted, discouraged or prohibited by Muslim jurists.
Today the North of Nigeria continues to throw up Nigeria’s poorest indices on matters relating to healthcare, nutrition, education, empowerment and productivity. Consequently, unemployment, insecurity, violence and poverty remain rife in that region.
Uwais, MFR, is Chair-person,  Isa Wali Empowerment Initiative, Kano.