Kano Family Law: Making Issue Out Of Nothing
I actually wanted to avoid joining the debate but my instinct seriously warned me, perhaps due to my background as a legal practitioner coupled with the fact that the subject matter is law.
I have read the national dailies on the subject and listened carefully to the arguments canvassed by both parties: those in favour of the proposed law and those against it. I make bold to say, without fear of contradiction, that my personal assessment of the situation is that those against the proposed law are the majority. Who is therefore to blame for the objection: the masses whose interest the law is to protect or the Kano Emirate for the hush- hush approach or the Kano State Government for its failure to carry out the commensurate enlightenment and sensitization or the stakeholders for failing to unite themselves and accord the proposed law with the desired moral support it required?
I have read the draft of the proposed law (the Hausa Version) from Page 1to 80 more than ten times and I could not find any new thing that was inserted which I am not familiar with in terms of Islamic Personal Law, probably because I frequent Shariah Courts and carry out researches to adequately prosecute my clients’ cases. To be candid, I find the law so simple, straight- forward, educative, scholarly, advanced and elaborate. No doubt, it would not only advance the course of justice (if passed into law) but would serve as a reference point to Shariah Court Judges in their adjudications in the near future. In due course, I shall facilitate the adoption of the proposed law in my state, Zamfara. Kudus to His Royal Highness, the Emir of Kano, Alh. Muhammadu Sanusi II for his foresight, penchant for development, commitment and steadfastness.
In my quest to find out the reason behind the objection of the law by the masses, I found His Highness culpable (with greatest respect to him). I traced the anathema to his public pronouncement that, under the new law, any man that is incapable of handling more than one wife financially will not be allowed to go for a second wife. I couldn’t find any provision in that law that is categorical about this prohibition. I couldn’t also find any provision in that law that defines the term ‘poor’ or at best, the yardstick to determine who is poor and who is not. There was equally no provision regarding who has the power to arrest, investigate or prosecute any defaulter of the law. A friend whispers in my ear that it is going to be the Police since they have the general powers under Sections 4, 23, 24 and 25 of the Police Act. I don’t know how accurate he could be.
I am not oblivious of Section 5(C)(1) and (2) (i-xiii) of the law that enumerated the rights of a wife over her husband to include: feeding, clothing, shelter, medical care, visit to her parent, cosmetics, education, justice between them (if she is not alone), sexual satisfaction and so on. I am equally not unaware of Section 5(d)(e) and (f) respectively of the law that shed more light on the rights explained above.
The point is, I don’t see any issue here big enough to result to the present standoff. From the outset, my ‘Waliy’ made it clear to me immediately after my wedding (at the wedding venue) that he had taken some solemn undertakings on my behalf that I will feed my wife and shoulder her responsibilities exactly as captured under Section 5 of the proposed law and I wasn’t surprised because I knew marriage comes with those corresponding responsibilities. Similarly, I have seen several cases in court where the wives sued their husbands for feeding and other related marital issues and judgement were accordingly entered for them. Which laws did the Judges use? Now you know why I said there is nothing new to worry about. All the laws are there and have been in existence since the evolution of Sharia Legal System. The only thing His Royal Highness did was to try to codify them in a single form for ease of reference.
Assuming the law stipulates that all those conditions enumerated under Section 5 of the law have to be met before the marriage could take place, there is still no course for any alarm in view of the Proviso to (24) of Section 5(f) of the law. It says: “...unless she is aware of his financial deficiency right before the wedding and she agrees to marry him as such”.
It sounds hollow to me to continue to argue over something that is not even an issue. In other words, as far as I am concerned, the cause of action has not even arisen here to give rise to the brouhaha.
Take for instance that a man was disqualified under the law to go for another wife and the wife hasn’t waived her right. Who goes to court: the wife or the government of Kano State? To be able to resolve this, you have to look at the issue from the perspective of crime or a purely civil action. It is criminal when the right of the state is involved and civil when it involves purely civil rights of individuals. Under this law, it was never envisaged that simply because you attempted to marry additional wife whom you cannot adequately cater for financially, you have committed a crime. Imagine how many arrests you would have on a single Saturday in the whole of Kano State!
Assuming that the law has outrightly prohibits the poor from having additional wife, my take is that since the ultimate motive behind the law is to regulate marriage and marriage related issues and by extension arrest the alarming rate of crime in the state; early and forced marriage; wives’ maltreatment, the Emirate should suspend the exercise for the time being, engage the stakeholders and embark on a robust public enlightenment or in the alternative, expunge the particular provisions that are not appealing to the general public. Simple!
Whichever way it goes, the Emir needs to be liberal in his approach to issues that are dicey of this nature. He should not be seen to be personally too keen about the insertion of a particular issue into the proposed law. There is no point for hush- hush since he is not caught by any tenure. I personally vouch his line of thinking but I hate to see him loose the loyalty and respect he commands to the majority of his subjects. The Kano State House of Assembly recently said the people of Kano will determine the fate of the law. That tells you that the battle is between the Emirate and few other elites on one side versus the majority poor and uneducated on the other side. Only time could tell who the winner is.
Another critical area that is being heatedly debated by stakeholders in relation to the proposed law is Section 3(A) (6) that puts marriage age at 17. The proponents argued that the provision will address the menace of early marriage, which invariably, will address the endemic of VVF and other related maternal issues as well as the issue of withdrawing children from school, more especially girls in the name of marriage when they are not ripe for it. Those against the provision argued that the provision has contradicted the Prophetic Tradition that reported that the Messenger of Allah (PBUH) had married Aisha (RA) at the age of 6.
Whatever it is, the particular law that created the problem has in my view provided the solution in the light of Section 3(A) (7). It states:
In the same vein, Section 3(A) (8) (a- c) of the law enumerated what the symptoms of puberty connote to include: menstruation, dreaming and development of fore hair.
In my humble understanding of the law, one needs no consent of anyone to marry- off his kid that is 17 years and over. He however requires consent if the kid is between the age bracket of 1-16. So, by implication, you can marry- off your kid at the age of 13 as long as he or she bears any of the signs of puberty spelt out under the law except that you need to present him/ her to a Judge, who in turn will seek Doctor’s medical opinion, perhaps to convince him that the kid is fit to bear children. What is the big deal here?
On the whole, I would have loved the proponents of the law to take into account: the need to meticulously ensure that the law did not contradict any provision of the Constitution of the Federal Republic of Nigeria, 1999 as amended otherwise, albeit all the troubles, it will be trashed at the end of the day as well as the need to confine themselves to the Maliki School of Thought being the applicable law in our Shariah Courts, bearing in mind the possibility of the matter being dragged to the Supreme Court by litigants.
In case the law is dropped at the Kano State House of Assembly, the Emir should embrace other means of solving the already identified problems. They include:
I guarantee His Highness, if the government sits- up, provides the enabling penal resources, provides jobs, enhance security, supports the Hisbah Commission, address the failure of social policies, salvage the education sector, in few decades to come, the idea of this law would not even arise.
Bello Idris (Turakin Galadi, Chiroman Batauna) is a private legal practitioner the President of the Bello Galadi Foundation.