Regulating Gender Violence in Postcolonial Societies: Is Legal Pluralism a Problem for Human Rights?

Abstract

This article is an examination of the pluralistic context in which human rights laws operate. The existence of unequal but mutually constitutive legal and normative orders in diverse societies raises complex issues for human rights practitioners. As the language of rights acquires worldwide currency, questions increasingly arise as to their relationship with other normative orders and systems of justice. While the impetus for legal pluralism may be multifaceted and complicated, this article focuses exclusively on the human rights dimension in Africa. Its main objective is to explore the nature of the relationship between gender equality and legal pluralism. In plural settings, the conflict between the need to preserve minority culture and the protection of rights forms the basis for how legal reforms have failed to address issues affecting women and girls. To ensure a consistent application of human rights norms, States must acknowledge that there are severe limits and resistance to formal laws within society, that there are spaces where its authority is not absolute and that ‘legal pluralism is a fact’. Failing to do this results in the development of new forms of ‘identity politics’ that continue to silence and subordinate women and girls.

1. Introduction

Most countries are characterized by several overlapping and sometimes competing legal and normative systems, including Indigenous, customary, religious, tribal, codified statutory law and various other informal norms and institutions, many of which maybe ambiguous and difficult to understand (Sieder and McNeish 2012). These normative orders often describe categories of inclusion, setting out the entitlements and obligations of individuals and groups. Different normative systems may compete or conflict with one another. In certain cases, they establish rules for the exercise of state power over issues affecting individual subjects in what is often a context of highly decentralized governance, involving a wider range of non-state actors and institutions (Von Benda-Beckmann 2009). And so, for most people across the world, statutory law alone does not define political, social, and economic life. Social, economic and political life is organized around the coexistence of various formal and informal rules, and by the interaction of various beliefs and practices.

In a world defined by such pluralism, international human rights law is seen as one more legal order among various legal orders (Sieder and McNeish 2012). Training human rights practitioners to engage local opponents is a common task for many activists (Nelson 2010). But this task has become much more difficult. The existence of unequal but mutually constitutive legal orders in diverse societies negotiating the dilemma of identity and equality raises complex issues for human rights practitioners. And so, as the language of rights acquires worldwide currency, questions increasingly arise as to their relationship with other normative orders and systems of justice. To what extent is the dominant state system able to manage the subordinate? How do subordinate systems undermine the dominant system? (ICHRP 2009). This article centres on the role of the state in managing the cross-cutting needs that exist within plural legal orders. Can the state be relied upon to move the human rights agenda forward in diverse legal settings? This question is essential because, if the state overlooks, ignores, or discounts that diversity, it might be confronted with a powerful political backlash, and, insofar as it begins to acknowledge that diversity, it could be accused by the human rights establishment of abandoning its principal duty (Nelson 2010).

While the impetus for legal pluralism may be multifaceted and complicated, this article focuses exclusively on the human rights dimension in Africa. Its main objective is to explore the nature of the relationship between gender equality and legal pluralism. Some human rights principles, such as non-discrimination and the prohibition on violence against women, are non-negotiable. However, human rights advocates still confront challenges of how to understand dynamics within legally plural patterns of governance, and how best to support women in efforts for more equitable and less violent relations (Sieder and McNeish 2012). African states, African women’s rights organizations and international human rights agencies face several challenges to undo gender inequalities shaped and sustained by the plurality created through colonialism. Many African countries struggle with identifying ways to sustain the cultural heritage reflected in customary and religious norms and institutions, as they attempt to also function as modern democratic states. Some of modern-day Africa’s struggles emanate from a forceful amalgamation of diverse ethnic groups into one centrally administered territory (Ubi and Ibonye 2019). Since the establishment of countries in Africa, ethnicity has generated increasing conflict that conditions law and politics. Colonial legal systems were imposed in a disorganized manner; some neighbouring countries possess dissimilar legal systems even when these countries are occupied by the same ethnic groups; in several cases, countries had two or three colonial experiences resulting in different legal systems imposed on them. Consequently, the illegitimate colonial legal paradigms and institutions imposed on local realities have caused difficulties in human rights implementation.

The political claims of African women, frequently supported by women’s rights activists, have in several instances produced constitutional, legislative and judicial interventions modifying inequitable state, religious and customary laws (Hellum and Katsande 2017). However, conscious of the ostensible failure of states to offer human rights protections to vulnerable groups and women within them, many African sociolegal scholarship indicate the need to examine the multifaceted legal situations that arise from the coexistence and interaction between international human rights law, state law, and cultural and religious norms (Derman et al. 2013; Hellum and Katsande 2017; Sieder and McNeish 2012). This paper provides a window into the challenges in which women, human rights organizations and action-oriented researchers may face in their attempt at mediating conflicts and tensions between gender equality and legal pluralities as they affect women’s everyday life. By situating the interaction between national, local and international norms in the shifting political and economic terrain of states, my aim is to show how insight into long-run historic processes and shifting patterns of governance affect the negotiating power of women and human rights organizations seeking greater gender justice (Hellum and Katsande 2017).

To properly understand the complicated and situational relationship between gender, human rights and plural legalities, I focus on the practice of child marriage in northern Nigeria. Beyond the fact that Nigeria has the largest number of child brides in Africa (UNICEF 2016), exploring legal pluralism and human rights through child marriage is significant because this practice fits rightly within the intersections of age, gender, culture, religion, law, and pluralism. Child marriage is primarily seen as a human rights violation, with culture and/or religion being the underlying cause. Cognizant of the fact that culture and religion stand in the way of gender equality, UN monitoring bodies, non-governmental organizations (NGOs) and international organizations have encouraged states to sign, ratify and enforce international human rights conventions prohibiting all forms of violence against women and girls. These conventions provide the foundation, define the norms and establish a legal basis for the primacy of the right to gender equality over discriminatory cultural patterns of conduct; they place obligations on states to modify negative aspects of culture and tradition. To realize this goal, ratifying states are required to adopt all necessary legislative and administrative measures, and to ensure that such measures have full force and effect within their domestic legal system. However, in plural settings like Nigeria, normative orders, including local cultural systems and human rights regimes, present both prospects and obstacles in the fight for gender equality. Child and marriage laws are often used as a testing ground to determine the degree of autonomy of women and girls. Nigerian lawmakers have debated and grappled with marriage customs for decades because ethno-religious groups consistently resist efforts to proscribe child marriage. This dilemma is discussed in succeeding sections.

With a focus on Nigeria, the article explores the limits of justice sector initiatives that seek to enhance gender equality by marrying human rights and legal pluralism. It will show that state law is not always the dominant order in defining the law and practice of human rights. Add gender to the mix, and we quickly realize that norms and rules governing the female body, reproduction, and marriage are part of a firmly controlled regime outside of the state legal system (Shachar 2020). Therefore, state legislation prohibiting a practice considered detrimental to women or imposing certain standards will often be insufficient to change women’s realities on the ground. If women’s rights are to be realized by states, understanding the interaction between state law and other normative orders is paramount.

The article unfolds in three parts. Section 2 maps out the main concepts in the present framework for analysing international human rights law and legal pluralism. Drawing on this analytical framework, with an overall focus on child marriage regulation, Section 3 explores how the right to gender equality contained in international and regional human rights instruments has been domesticated by the Nigerian state. It reveals how Nigerian lawmakers, and religious and political actors navigate a plural legal terrain where international and national law coexist and interact with local gendered norms and practices. Section 4 takes this analysis further by exploring the relationship between state law and religious law and how the protection of gender equality for women and girls in northern Nigeria is affected by political changes and power struggles embedded in legal pluralities. The article concludes with a series of observations about the nature of the relationship between human rights and legal pluralism in Nigeria and, ultimately, whether this relationship can be described as equally reinforcing or fundamentally incompatible.

2. The analytical framework: a complex pattern of legal pluralism

In framing the analytical framework, it is valuable to commence by explaining how the term ‘legal pluralism’ is used in the present article. Undoubtedly, the exact meaning of the term has produced significant debate in the academic literature. Legal anthropologists initially coined the concept of legal pluralism, mainly in postcolonial contexts, to depict the coexistence of diverse legal systems in a given social and geographical space, usually involving Indigenous law and the law of colonial government (Griffiths 1986; Hooker 1975). As a notion in legal discourse, it indirectly confronted traditional Western-based models of law that posited a single legal system, or one dominant legal system, in a particular area, that is, the legal system of the state (Mac Amhlaigh 2020). On a plain reading, the concept signifies a variety of laws and/or mechanisms for regulating disputes arising from various sources of legitimation, such as the state, custom or religion, operating within the same geographical space (Corradi 2017). Legally plural contexts have several but parallel conceptions of ‘permissible actions, valid transactions, and ideas and procedures for dealing with conflict in the same social field’ (Merry 2020: 173). They are usually structured around differing conceptions of justice.

As previously noted, legal pluralism can be found virtually anywhere in the world. In practice, legal pluralism takes a myriad of forms. This is hardly surprising. The relationship between state and non-state law is a complicated one, reflecting the specific circumstances and development of the state in question (Quane 2013). These range from non-state law coexisting with but distinct from state law to a formal incorporation of customary, Indigenous or religious law into state law, to non-state law functioning in a semi-detached manner from the state (Quane 2013). In the Global North, the form of legal pluralism adopted is mostly unofficial and relates to the coexistence of state and non-state normative orders, increasingly prevalent due to immigration and increased global relations (Von Benda-Beckmann and Von Benda-Beckmann 2005). In the Global South, the state’s ability to impose a unitary legal order is limited. Legal pluralism is often formally endorsed by state policies, and is primarily, although not entirely, linked to customary and religious legal orders functioning alongside the legal institutions inherited from former colonial powers (Merry 1988; Corradi 2017). In some places, however, legal pluralism unfolds in the absence of a singular authority that would be able to enforce a unitary order on the plurality of different legal and normative systems within the territory of the state (Kötter 2015).

In several countries with colonial history, formal state systems were only established for the first time under colonial rule, whereas traditional forms of governance and dispute resolution persisted (Kötter 2015). Legal pluralism in these contexts describes an array of arrangements relating to social practices that are distinct from the dominant state law and serve a broad range of justice functions from arbitration to court-like decision-making for the resolution of disputes (Kötter 2015). They may be formed by traditional authorities such as elders or other respected community members. In South Africa, for example, under the 1996 Constitution, customary courts have a prominent social and political function (Rautenbach 2015). They are formally authorized as a fundamental part of the state court system. Besides local custom, non-state justice institutions may also originate from religious authority like the Sharia courts active in several countries in South and East Asia and Africa. The federal Sharia courts in Ethiopia, for example, address personal or family matters relating to Islam (Girmachew 2015). The Sharia courts apply Islamic law, but they are also required to apply the official Civil Procedure Code and other applicable statutory procedural rules, implying that state institutions implement the enforcement of the Sharia court’s decisions (Girmachew 2015). In Nigeria, as discussed below, the Constitution recognizes Islamic law and grants the Sharia Court of Appeal the right to decide questions of personal law for Muslims.

2.1 Human rights and legal pluralities

In recent years, the intersection between human rights and legal pluralism has been investigated from a wide range of perspectives, including the relationship between the two concepts (Corradi 2017; Von Benda-Beckmann 2009); the conditions under which legal pluralism may promote or undermine human rights (Quane 2013; ICHRP 2009); and the various connections between human rights and Indigenous, customary, religious and informal law. In an effort to bridge the gap between state law and normative systems on the ground, international policymakers have turned their attention to the informal justice sector as part of the general shift towards conceiving governance as being more decentered and more ‘society’ oriented than in the past (Von Benda-Beckmann 2009; Faundez 2006). International organizations and think tanks are increasingly engaging with the complexities of plural contexts and addressing questions of how policymakers and activists can best foster human rights standards, access to justice and gender justice within such settings. For example, the UNDP Commission on Legal Empowerment of the Poor called for the ‘liberalization of the justice sector and recommends recognition of non-state legal services and informal justice systems’ (UNDP Commission on Legal Empowerment of the Poor 2008). In 2009, the International Council on Human Rights Policy published a detailed report on human rights, state and non-state law that included a series of ‘guiding principles’ for human rights advocates engaging with plural legal orders (ICHRP 2009: 147–56). In 2011, UN Women published the flagship report titled ‘Progress of the World’s Women’, which focussed on access to justice and placed substantial emphasis on legal pluralities, their effects on gender justice and provided policy recommendations for addressing gender justice in plural legal contexts (UN Women 2011).

The common assumption that non-state justice institutions tend to infringe human rights—predominantly those of women, children and other vulnerable groups—has been supported by empirical research in several countries. A World Bank paper highlighted the problems that women and children face under various customary systems of governance:

[I]n much of sub-Sahara Africa, traditional systems are patriarchal in nature and often systematically deny women’s rights to assets or opportunities. Women are unable to own, control, or inherit land, and are only able to access land through a man (generally either their father or husband). This dependency, and systematic denial of control over land, exposes women to violence and exploitation, both from the males they are dependent on or from male relatives when they are widowed. Widows, divorcees and orphans are often forced into isolation and destitution. In many regions, land security is linked to food security, with people heavily dependent on their own food production, making the lack of access to land even more devastating for many women. (Chirayath et al. 2005: 5)

The goal of protecting the human rights of less powerful members of society forms the starting point of several strategies for managing legal pluralism, especially in weak or fragmented states. As we will see in the case of Nigeria, current trends to recognize religious and customary normative systems may on the one hand increase the spaces for the exercise of local autonomy and the right to self-determination by different ethnic and religious groups but may on the other hand reinforce existing inequalities within these groups in terms of gender, status and age (Hellum 2012). Increased recognition of diverse normative systems may therefore affect women’s rights under international and national law in complex and contradictory ways. As such, many human rights practitioners are cautious about endorsing customary or religious forms of governance, which often function to protect and further the interests of powerful or dominant groups to the detriment of marginalized sectors within those communities (ICHRP 2009; UN Women 2011). And so, there remains concern about how to make legally plural systems more ‘permeable to international human rights discourses and, within this, how to encourage more equitable gender practices’ (UN Women 2011: 11).

The international human rights system is layered above state law and seeks to regulate it, with the consent of states that choose to ratify human rights conventions (Merry 2020). Many international and regional human rights conventions recognize the existence of other normative systems than (secular) state law. In sub-Saharan Africa, as elsewhere in the world, it was the 1979 United Nations Convention on the Elimination of all forms of Discrimination against Women (CEDAW), with its application in both the private and public spheres, and the globalization of women’s rights organizations, which triggered a major shift in the priorities of governments (Hellum 2012). CEDAW recognizes that traditional cultural beliefs are frequently premised on the notion of women’s inferiority, and that this represents a serious impediment to the fulfilment of gender equality. As such, it imposes duties on state parties to eliminate cultural and religious practices that are in conflict with the principle of equality (CEDAW, Art. 2a). Consequently, since the adoption of CEDAW, principles of gender equality and non-discrimination have been incorporated into constitutional and statutory law in several legally plural contexts.

Similarly, within international children’s rights, some acknowledgement of normative diversity is also discernible. The preamble of the 1989 United Nations Convention on the Rights of the Child (CRC) recognizes the significance of traditions and cultural values for the protection and development of children. For example, article 5 of the CRC includes a broad and culturally sensitive interpretation of the concept of caregivers. It provides that the responsibilities, rights and duties to provide appropriate guidance to children in the exercise of their rights do not only accrue to parents, but also to ‘members of the extended family or community as provided for by local custom’. Article 20 provides that when a child is temporarily or permanently deprived of their family environment, state parties should provide alternative care. In this regard, explicit reference is made to the institution of kafalah of Islamic law, in addition to the more Western arrangements of foster placement, adoption and residential care. Regionally, in response to the new upsurge of fights for equality and human rights in twenty-first-century Africa, the 1999 African Charter on the Rights and Welfare of the Child (ACRWC) followed the African Charter on Human and Peoples’ Rights. Where the African Charter was weak on women’s rights these rights were formulated and included in the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). The Maputo Protocol was prompted by the rising number of African women’s rights NGOs emphasizing that the norms and practices arising from membership in a family, a clan, an ethnic or religious group often conflict with women’s rights and individual freedoms. Article 2.2 of the Maputo Protocol places an obligation on states to address gender stereotypes embedded in cultural and religious beliefs.

From the above, we see that legal pluralism is an essential element of the contexts in which human rights operate. By adding a normative and institutional layer to current state laws, these human rights instruments have opened up spaces for women and girls to challenge male dominance embedded within religious and cultural systems. However, as we will see in the case of Nigeria, the existence of plural and overlapping legal systems, and multiple social authorities—clan or tribe elders, religious leaders—underscores the limits of formal law in postcolonial societies. It also casts doubts on the efficacy of strategies that focus on formal state institutions as the means through which to enforce international rules and norms in gender relations (Manji 1999). There are few states, like Nigeria, in which norms and biases developed within ethno-religious communities are removed from the deliberations of public actors in deciding how to address specific forms of gender violence. In some contexts, these non-state normative systems are remarkably strong. The state’s rulings on justice are largely ignored by dominant groups, and the equality rights the state extends to all citizens are not regarded as legitimate or pertinent to vulnerable groups who most urgently require them in order to change oppressive social relations (Sieder and McNeish 2012).

As discussed below, the unmaking of gender inequalities embedded within normative orders remains a major challenge for postcolonial African states, African women’s rights organizations and international human rights agencies. In sub-Saharan Africa, which is the location of this article, ethno-religious norms and practices often take precedence over equality principles in areas of personal law regarding marriage, family affairs and inheritance. The hierarchical relationship between the right to equality and the right to culture and religion has to a great extent confined women and girls within ethno-religious constructions of unequal gender relations (Hellum and Katsande 2017). Several African states have ratified international and regional instruments that embody the right to gender equality. The increase in the number of domestic legislation and court cases challenging discriminatory cultural practices shows how the political claims of African women have in several instances generated statutory and judicial interventions changing discriminatory state and customary laws (Hellum and Katsande 2017). However, even though such law reform and litigation strategies reflect the rising quest for change, other types of interventions are required to guarantee the realization of the right to equality within plural systems. As we will see in the case of Nigeria, the expanding gender equality framework embedded in both international law and state law is often not translated into realizable rights for women and girls.

3. Postcolonial Nigeria: a site of gender struggles

A basic question posed in this section is how the power structures that inform unequal gender relations within ethno-religious normative systems are handled by the state and non-state actors involved in law reform, administration of law and mediation of conflicts. In Nigeria, the often-presumed crucial role of state law is to be nuanced, because state law is neither always the most dominant normative order determining women and girls’ fate, nor necessarily the most supportive of gender equality. Discourses and practices rooted in culture and religion exercise significant power in shaping, regulating and organizing social, economic, political and personal conduct in Nigeria. Cognizant of the obvious failure to protect girls from child marriage, this section engages with the complex legal issues that arise from the coexistence of international, national and local norms in Nigeria. Indeed, is it possible to advance the enforcement of human rights within plural systems without, at the same time, threatening to eradicate what makes those contexts diverse? (Nelson 2010). With reference to officially recognized religious personal laws, this section reveals how Nigeria responds to this dilemma in the context of child marriage regulation. It discusses the manner in which the government formally recognizes and incorporates non-state justice systems into the formal state governance structures, but also provides some context preconditions that influenced Nigeria’s present approach to reconciling state and other normative orders.

I argue that an important dilemma in the enforcement of women’s rights norms and child protection strategies in Nigeria is centred on the pluralistic nature of the state and the government’s failure to find an appropriate and efficient way of implementing the coexistence of multiple normative orders. Legal pluralism creates a range of complex legal problems in Nigeria. The Nigerian legal system constitutes an attempt to combine pluralism and gender equality with the overall aim of unity and unification of law. However, it is often hard to determine what subgroups’ rules are, especially when they are not part of a written tradition, for example, African customary law. Even those normative systems with written codes, such as Islamic law, are often rooted in remarkably diverse ways of thinking about the law. There is endless competition between normative systems for the loyalty of those to whom they are addressed. Other than being a justification for popular resistance, they also influence the level of respect afforded to the official lawmaker (Yilmaz 2006).

The processes used to structure and negotiate Nigeria’s plural identity are essential in understanding the rationale behind the practice of child marriage. Ethnicity, religion, and intergroup relations are complex in Nigeria. Nigeria’s history is characterized by political disagreements reinforced by autonomous regions constructed around cultural institutions and religion (Falola 1998). Nigeria was not colonized as a single territory but as three distinct units, each governed separately.¹ From its establishment as a colonial state, it has faced a recurrent crisis of state legitimacy confronting its efforts at democratization, national cohesion, stability and legal development (Karl 2000). Like many other states in sub-Saharan Africa, Nigeria has struggled to accommodate ethnic and religious differences among its people. The state is described by some as one of the most deeply divided states in Africa (Osaghae and Suberu 2005; Falola 1998). Political and legal issues are typically challenged along the lines of complicated religious, ethnic and regional divisions in the country. The key issues generating intense contestation are those believed to be fundamental to the existence and legitimacy of ethno-religious groups, over which conflicting groups tend to adopt ‘exclusionary, winner-take-all strategies’ (Osaghae and Suberu 2005: 4). The contention over regulating the practice of child marriage is a leading example.

As described below, the problem of child marriage is positioned within a disputed legal terrain since the age of marriage and the age of consent for sex have strong ties to the ethno-religious nature of the state. In Nigeria, this practice is highly prevalent in the northern region, with marriage to female children rather than males occupying centre stage in debates around its legal regulation (Bunting et al. 2016). Child marriage is a practice common in many parts of the world; however, the uniqueness of this problem in northern Nigeria is that child brides in this region have the youngest average age of marriage, as low as seven (Braimah 2014). In the north, child marriage is largely prevalent amongst the Hausa–Fulani group, a predominantly Muslim population and a political majority in Nigeria (Osaghae 1998). Although the two groups are distinguishable, they are often grouped together because the Fulani, after conquering the Hausa, adopted the Hausa language and culture and intermarried with them to such an extent that the two groups have become difficult to distinguish (Callaway and Creevey 1994). In northern Nigeria, almost every girl marries young, even if it is just a brief short-term compulsory union organized to give her a valid status in the society. On the other hand, boys are not usually required to get married until they are economically independent, usually in their late twenties or early thirties (Callaway 1984). Religious group leaders tell their populace that it is an Islamic obligation to wed their daughters before puberty so that they can avoid the social shame associated with child pregnancy (Nnadi 2014). We observe something similar in news content with statements made by prominent political figures condoning their marriage to underage girls. For example, in defending his marriage to a 13-year-old girl at age 49, Senator Ahmed Sani Yerima of Northern Nigeria is quoted stating the following:

Nigeria has uncountable problems and none of them is early marriage … As a matter of fact early marriage is the solution to about half of our problems … For those who wonder if I can give my daughter(s) out in marriage at the age of 9 or 13, I tell you honestly, I can give her out at age of 6 if I want to … This is because I am a Muslim and I follow the example of the best of mankind, Muhammed … (Mabai 2013: para. 3)

Girls are frequently married at the age of thirteen, some as young as eight or nine, with significant effects including vulnerability to rape, an end to education and vesico-vaginal fistula (UNFPA and EngenderHealth 2003).

3.1 Managing pluralism in Nigeria: a gendered approach to marriage regulation

Certain features of Nigeria’s historical legacy have shaped the state’s response to violence against women and girls. The recognition of the right to self-government of ethno-religious groups and the establishment of a federal system under the Nigerian Constitution gave rise to dual justice systems at the federal and regional/state levels. As a result, gendered questions posed by religion and culture, especially those touching on family and sexual relations, present themselves in constitutional discourse as issues of morality, ‘culturally relative, value based, open to differing judgments’ and demanding tolerance between the various regions in Nigeria (Mackinnon 2012: 14).

Nigeria’s population of over 195 million is composed of about 350 ethnic groups (The World Bank 2021). In the early 1950s, the Sardauna of Sokoto, leader of the Northern Peoples’ Congress, referred to the amalgamation of the Nigerian provinces as the mistake of 1914 (Pereira and Ibrahim 2010). Upon attaining independence in 1960, the most destabilizing factor was ethnicity (Falola 1998). To preserve and protect diverse ethnicities, a federal system of governance, as determined by both British colonial officials and Nigerian politicians, was deemed most suitable for the country (Usuanlele and Ibhawoh 2017). However, in negotiating for federalism, little attention was paid to the dynamics of inter-ethnic competition. The Lyttleton Constitution of 1954 established the federal principle and paved the way for Nigeria’s independence in 1960. The federal system comprised a national government and three regional governments: Western, Eastern and Northern, with the North having political and demographic pre-eminence over the two other regions (Adamolekun 1991). Amidst significant and furious protest of minorities, the British colonial government adamantly opposed all requests for a further division of the country to accommodate minority ethnic groups (Amah 2017). This was the case despite the clear warning that a federal system where one region, northern Nigeria, had a population majority could be a possible cause of instability.

Nigeria is a federation consisting of 36 relatively sovereign and equal states, with each having an independent legislature. Governance is shared between three levels of government: federal/central government, state/regional government, and local government. Each level possesses legislative competence to enact laws within the confines of the legislative list designated in the constitution (Section 4 and 7, 1999 Constitution). The legislative list is structured into three categories: the first relates to matters within the exclusive legislative powers of the federal government who makes laws through the National Assembly; the second relates to matters within the concurrent legislative powers where both federal and state parliaments may equally exercise legislative powers through the State Houses of Assembly. The third group concerns matters over which only State Houses of Assembly may exercise authority exclusively, referred to as residual legislative powers. States’ residual powers affect matters that are within neither the exclusive competence of the federal legislature nor the concurrent powers of both federal and state legislatures (Ogunniyi 2018). The federal parliament is incapable of legislating on matters falling within states’ residual powers.

In 1954, when Nigeria adopted a federal constitution, it was clear that marriage was a subject to be placed within the competence of regional legislature (Williams 1967). Accordingly, it was not mentioned in either the exclusive or the concurrent legislative lists and was thus regarded as a residual matter. However, in 1957, ‘marriages other than marriages under Moslem law or other customary law’ was included in the exclusive legislative list and is also enumerated in Part I, item 61 of second schedule in the current 1999 constitution. The result was that the law relating to the relatively small but increasing number of civil marriages became subject to the jurisdiction of the federal legislature while marriages under Islamic and customary law continued to be regulated by regional/state legislature. Likewise, child-related matters are residual matters within the exclusive legislative powers of states.

The practical effects of this constitutional recognition of legal pluralism on women and girls within cultural communities are numerous. For example, due to obligations emanating from the CRC and the ACRWC, Nigeria’s National Assembly enacted a federal legislation called the Child Rights Act of 2003 (CRA). The CRA was a major piece of reforming legislation enacted to address the rights of children in Nigeria. This legislation remains the most in-depth legislation in Nigeria recognizing that children need to be protected. More importantly, section 21 of the Act explicitly prohibits the practice of child marriage and sets the minimum age for marriage at 18 years. The CRC and the ACRWC were domesticated in Nigeria by the promulgation of the CRA pursuant to section 12(1) of the 1999 constitution which requires all international conventions to be ‘domesticated before they can create domestic legal obligations’. However, child rights matters are residual matters within the exclusive legislative powers of regional governments in accordance with section 4(7)(a)(b) & (c) of the constitution. This gives states/regions complete responsibility and authority to make laws relevant to their specific situation. As a result, before the CRA becomes applicable within individual states, it must be adopted by them through the legislative powers provided in section 4(7) of the constitution. States are not under an obligation to adopt the CRA, and those that adopted it, by enacting Child Rights Law (CRL), did so at their discretion. In addition, item 61, schedule II to the constitution removes customary and Islamic marriages out of federal legislative competence. Therefore, federal laws enacted by the National Assembly will have no effect on the formation, amendment, and dissolution of marriages under Islamic or customary law.

While the CRA prohibits child marriage, its application is also limited in scope because it limits the cultural/religious rights of Sharia states in Nigeria. This is fortified by section 277 of the Constitution granting the ‘Sharia Court of Appeal the right to decide questions of personal law for Muslims, including the validity or dissolution of a marriage, guardianship, inheritance, and succession’. Also, section 38(1) of the Constitution entitles ‘persons to freedom of thought, conscience and religion’. In this way, we see that even though some states adopted the federal CRA, in defining marriageable age, there are modifications, especially in northern Nigeria where instead of the minimum age of 18 years stipulated by the CRA, ‘puberty’ is used as the threshold for ascertaining marriage capacity (Nwauche 2015). For example, although section 15(1) of the Jigawa State Child Rights Law prohibits child marriage, it defines a child in section 2(1) as a person below the age of puberty. It sets the age of maturity as when ‘one is physically and physiologically capable of consummating a marriage’. Also, the bill of Child Rights Law of Borno state provides that ‘no person under the age of 18 years is capable of contracting a valid marriage unless, regarding the law being applied to the child, majority is attained earlier’. In other northern states, like Niger, the CRL at section 27 contains a primacy clause which provides that where there is a conflict, Islamic personal law prevails. Therefore, while on the surface, the enactment of the federal CRA makes a strong political statement of the need to protect girls from violent practices, in reality, it fails to establish a standard of justice to which cultural practices may be subject.

Even before the CRA was enacted, several unsuccessful attempts were made to domesticate human rights conventions due to the form of legal pluralism operating in Nigeria. For instance, in 1993, a comprehensive children’s rights bill was drafted and presented to the federal parliament for approval. The bill was resisted by religious and traditional groups, on the ground that it conflicted with Islamic and customary norms (Akinwunmi 2009). As a result, the government mandated a special committee to assess the bill, considering religious and customary laws (Ogunniyi 2018). Yet again, the bill did not succeed, for similar religious and customary reasons. Many national and international NGOs criticized the choice to abandon the bill and urged the legislators to re-evaluate it. This eventually led to the enactment of the CRA in 2003, about 10 years after the debates and controversies around the enactment of a child rights bill.

There is an evident failure of many legislative initiatives in Nigeria, specifically initiatives seeking to transform or reform society. If we focus only on child marriage, the failure of a law to realize its intended effect due to legal pluralism may appear as a ‘matter of a small moment when taken in isolation’ (Allot 1981: 229). But if the scope of analysis is multiplied, we see that there are reasons for such failures, specifically when such a law touches on some fundamental aspect of social life (Allot 1981). For example, in 2011, the Gender and Equal Opportunities Bill was introduced in Nigeria; it was aimed at domesticating the CEDAW, including enacting legislation to ensure ‘gender equality in both public and private spheres’. It sought to enact certain measures to address past and present discriminatory practices, including modifying sociocultural practices subjugating women. At the first reading, the bill failed in the Senate, largely because of resistance on religious grounds, especially from Senators representing the country’s mainly Muslim northern states (Global Legal Monitor 2016). They asserted that the bill conflicted with the constitutional right to religion and certain provisions of the Sharia law. A few senators from the southern states also cited the Bible as the basis for their opposition to the legislation (Kazeem 2016). Similarly, the 2015 Violence against Persons (Prohibition) (VAPP) Act is another legislation that sought to protect women and girls within social settings. It prohibits violence against women in public and private spaces and establishes efficient remedies and sanctions for offenders. However, by virtue of section 47 of the VAPP Act, this legislation only applies to the Federal Capital Territory, Abuja. As a result of the constitutional distribution of powers, this legislation is not applicable to the country at large, hence limiting its impact on women and girls within different ethno-religious communities.

Group or regional autonomy employed within ethno-federal frameworks like Nigeria places direct barriers to the protection of women and girls from violent and discriminatory practices. The general presumption towards cultural autonomy for ethno-religious groups draws issues of gender equality into ethnic politics (Agarin et al. 2018). As previously noted, section 277 of the constitution grants the Sharia Court of Appeal the right to decide questions of personal law for Muslims, including the validity or dissolution of a marriage, guardianship, inheritance, and succession. It essentially permits implementation of legal systems ungoverned by constitutional equality rules to the systematic disadvantage of women and girls. This leaves unchallenged countless social practices occurring within families. Personal laws tend to rationalize the dominance of women by men and the oppression of children by parents, characterizing them as legal. This reasoning, that family relations at the cultural level should not be intruded by the federal government, impedes attempts at eradicating cultural/religious practices like child marriage. It is no coincidence that what is attributed to the personal is usually where the greatest gender disparities are implemented. The family, across cultures, is a site of violence, a place where women and girls are violated with clear and virtually perfect impunity due to legal pluralism (Coomaraswamy 1995). Excluding laws from constitutional scrutiny when they are labelled ‘personal’, laws that are in fact public and certainly political in the sense that they ‘enforce the sexual politics of relationships between women and men’, is another way of institutionalizing male dominance and subordinating women by law (Mackinnon 2006: 199). By refusing to enter the cultural sphere to address problems of power abuse, law and the state maintain an unequal power dynamic in Nigeria.

Based on the above, I am of the view that legal pluralism as implemented in Nigeria functions to institutionalize gender inequality. The division and scope of power of each governing structure, including whether and to what extent legislatures are permitted to guarantee equality rights where inequality pervades, doubtlessly affect social outcomes for women and girls. To put it slightly differently, when inequality is institutionalized, it creates differences between people that serve as appropriate justifications for treating women worse while appearing reasonable and not arbitrary at all (Mackinnon 2006). Each regional government’s concept of and attitude towards rights profoundly shapes the capacity of law to be used to change gender-based inequality in society. Sources and hierarchy of laws are crucial; the place of customary and religious law is significant because family law is generally governed by personal status laws, and women and girls’ lives are often confined to and by the family (Mackinnon 2006). By bringing the experiences of women and girls to the centre, we quickly observe the countless ways in which legal pluralism in Nigeria is dominated by male interests. The implications for women and girls are far-reaching; the larger political context in which laws are made and interpreted strongly affects its effectiveness for gender justice.

4. Normative challenges to a liberal rights framework in Nigeria

To properly understand the gendered dynamics of human rights interventions within plural systems, marrying legal pluralism and human rights must be located within a broader exploration of the different forms of power that influence the relationship between the plurality of norms invoked by different actors in the family, in the local community and at the level of state law (Hellum and Katsande 2017). As previously noted, in Nigeria, the rapid adoption of international and regional human rights instruments, such as CEDAW, CRC and the ACRWC, is shaping the work of the federal government, international and national women’s organizations. Yet there is still considerable variation in the degree of protection offered to women and girls by domestic legislation. Although there is no specific formula to be used in assessing the state’s choice in deciding how to support or implement specific human rights reforms, I contend that the choice to support or not to support any particular reform is a political decision. The slow and uneven change for women and girls in Nigeria speaks to the contested relationship between ethno-religious values and the principles of gender equality that for many African nationalist politicians is associated with Western feminism. Women and the family play a crucial symbolic role in constructing ethno-religious group solidarity vis-à-vis society at large. In Nigeria, gendered images of idealized girlhood and womanhood have become a focal point for an unprecedented wave of state versus religion/culture conflicts over group identity and nationalism questions. Therefore, control over family or personal law, and by extension women’s and girl’s rights, is significant to the power of state and non-state actors alike (ICHRP 2009). It is a field that is consequently highly politicized in Nigeria and remains the focus of demands for recognition of normative difference, especially by conservative community leaders. In this section, I argue that state recognition of demands for distinct personal laws needs to be seen less as a minimal concession for the sake of pluralism and national stability and more as an intentional ‘political strategy that has profound human rights implications’ (ICHRP 2009: 67). I discuss how employing legal pluralism to request respect for ‘our’ tradition, culture and nation has often amounted to demands that we repeatedly defer the articulation of issues affecting women and girls.

The historical friction around national and local level politics, in addition to the perceived westernization of northern Nigeria’s value framework, has limited state involvement in matters of a cultural nature, making it even more difficult to reconstruct areas of law affecting women and girls. As evidenced in subsequent sections, in northern Nigeria, there could be little significant dialogue on the effect of cultural violence on women and girls’ well-being and agency that can escape becoming entangled in the struggles between colonialism and nationalism. It is almost impossible to extricate discussions of practices that adversely affect women and girls from this conflict-laden conceptual framework. Given the form of contemporary political discourse in Nigeria, human rights are turned away by religious and cultural groups as a manifestation of that common ‘geopolitical menace: liberal imperialism’ (Nelson 2010: 406). The defence of women and girls’ individual rights is read as a pernicious political statement favouring government actors who support the individual and their inalienable rights to equality. And so, while the possibility of a future dedicated to women’s rights within various normative systems remains the goal, the question is: will those who champion this future in Nigeria triumph in ‘defending their claims against the charge of a homogenizing liberal imperialism’? (Nelson 2010: 406).

The link between gender equality norms within human rights documents and those embedded within specific forms of Western liberalism remains an issue in postcolonial societies like Nigeria. Attempts to end child marriage are interpreted as a condemnation of all religious values and traditional ways of living, while religion and culture are perceived as static opponents of secular modernity. This is problematic because it leaves women and girls’ issues susceptible to co-option by both colonial and nationalist agendas. In the succeeding section, we see that the issue of child marriage in postcolonial Nigeria may not be so much about the specific situation of girls within a defined set of social relationships as it is about the ‘encounter between a colonial state and the supposed tradition of a conquered people’ (Chatterjee 1989: 623). My analysis in the next section suggests that the failure to regulate child marriage in Nigeria arises not simply from the plurality of legal orders but also from their competition and opposition. I argue that the scope of women and girls’ struggles in pluralistic societies like Nigeria needs to incorporate not only contestations of specific practices and institutions but also include challenges to the larger depictions of nation and culture. These pictures of culture and nation conceal the degree to which calls to restore and protect the ‘traditional way of life’ through legal pluralism are motivated by political agendas. These narratives often appear to be about actual and descriptive elements of a plural national and cultural past but are instead political ideas used to stipulate which groups are important, which ways of life should be honoured and respected, and how the state should envisage its political future.

4.1 The gender politics of pluralism and culture wars: a moral vision

One of the touchiest points of contention is the question of what should be the appropriate focus for analysis in pluralistic societies: individuals or groups? The responsibility of a human rights-oriented state, if you will, is always defined by its dedication to each individual within the plural legal orders that surround them (Berger 2021; Nelson 2010). This makes sense, specifically for those interested in protecting core minimum standards for women and girls even within a human rights environment shot through with enduring forms of legal pluralism and diverse norms (Tamanaha 2021; Kötter 2015; Nelson 2010). However, given the pluralistic nature of the state, Nigerians’ value choices are very heterogeneous, with several inconsistent preferences about basic principles like equality, freedom, and the like. This heterogeneity generates different value orientations that break down along group and political lines. Since these differing value systems entail mutually exclusive social arrangements and societal goals, historically, they produced major disagreements that can be characterized as ‘culture wars’. Fundamental to these conflicts are allegiances to various formulations and sources of moral authority regulating the lives of individuals and groups. These moral visions are not just limited to the private sphere; at the heart of present-day culture conflict is the relatively different and competing ideas of public life. Due to its public nature, the conflict includes disputes over national identity, over the meaning of Nigeria, its past and its future. This war also plays out in many debates over the public life of the nation related to sexuality, religion and family life. Culture wars are expressed in several institutional settings, and without question, for the purposes of this article, one of the battlegrounds on which culture wars have been fought vigorously in recent years in Nigeria is with regards to gendered practices within ethno-religious groups. The struggle over a minimum age of marriage in Nigeria represents a firm, no-surrender conflict engrained in the incommensurable and unreconcilable disagreements about moral authority.

In northern Nigeria, the absolute basis for morality is Islam. Between October 1999 and December 2001, twelve states in northern Nigeria enacted legislation codifying Islamic criminal law and established Islamic codes of behaviour, such as the prohibition of alcohol, strict sexual morals, and the segregation of sexes in public transport. These measures were advanced under the phrase: the ‘restoration of the Sharia’ (Weimann 2009). The moral assessment of the Nigerian state as ‘sick, decaying or rotting’ (prevalent in popular and scholarly writing by Nigerians) is common beyond ethno-religious and socio-economic class, and echoes beyond the Sharia issue (Kendhammer 2013: 300). The main conveyors of these moral visions and systems of meaning in the public realm are the elite. For example, re-establishing Sharia was the main campaign guarantee of the gubernatorial candidate of Zamfara state in northern Nigeria (Sada 2007). After his success, he commenced acting on this pre-election promise to create Sharia courts and introduce Islamic criminal legislation. The governors of eleven other northern states followed suit (Weimann 2009). The Sharia implementation dispute in Nigeria also characterized economic or social problems as moral problems. By associating policies enforcing Islamic morality to developmental issues, state morality is then linked with economic opportunity. Demands for state-led moral reform were bundled with and related to appeals for government intervention on behalf of the poor. This economic development and social justice framework were a passive promise to create the environment required for a moral revival, frequently through ‘enlightenment campaigns’ to educate people about Sharia (Kendhammer 2013).

Beyond the legalities around human rights protection of women and girls highlighted above, a major problem with legal pluralism in Nigeria is that it is used by local elites or favoured groups to maintain their own advantage. Formulating demands based on nationalist ideas creates increasingly fixed and firmly defined symbols of cultural exclusivity demarcating boundaries between cultures. Thus, in Nigeria, many nationalists endorse a dichotomy between the ‘rest of Nigeria’ and the ‘spiritual/moral North’ who must remain unpolluted by westernization. For example, members of the reform movement in northern Nigeria—in particular the local reform movement, whose main representative is the Jama’at izalat al-bida wa-iqamat al-sunna (Society for the removal of innovation and reinstatement of tradition)—saw legal reform as an opportunity to transform Muslim society through the elimination of Western cultural influences (Weimann 2009; Kane 2003). Also, among the more noticeable changes in Nigeria, in the recent decade, is the increasing number of women participating in local and national politics and entering professional and public spheres of activity initially designated to be exclusively male. The cultural anxiety generated by social change results in reactions focused on transformations in gender roles as a definitive indicator of cultural threat and loss. This is then used to rationalize abuse and reject a variety of legal and political demands for equality, justice, and protection of the human rights of women and girls (Mayer 1995). It results in requests for a return to and re-establishment of ‘our traditional way of life’, a return that is to be achieved by reinstating women and girls to their traditional place (Narayan 2013). Consequently, any human rights reform agenda demanding an increased equality of women and girls or the eradication of oppressive practices instead of a return to traditional roles is perceived as cultural disloyalty.

The culture war in Nigeria is mainly about power and where it is properly located. Operating from this perspective, we see a clear difference between elites and local community members. Researchers working in the American context have long argued that elite discourse and the media mediate the relationship between personal principles, collective morals, and public opinion (Zaller 1992). They also assert that elites, such as public officials, religious and traditional leaders, politicians, journalists, public intellectuals, and activists upon whom people rely for information, structure this relationship. The power to define culture is held by people who occupy a broad range of spaces in the political field (Narayan 1998). The role of elites in northern Nigeria is incredibly significant because they have disproportionate access to the media compared to individuals in rural communities, they have financial resources available to them and they have played a significant role in leading institutions framing public debates on culture and gender equality. Political actors with societal power within ethno-religious communities conveniently label certain changes in tradition as consonant with ‘cultural preservation’ while describing other modifications as ‘cultural loss’ or ‘cultural betrayal’ (Narayan 2013: 21). These actors permit changes that are sanctioned by socially dominant groups to look consonant with the protection of fundamental aspects of a culture, while portraying changes that confront the ‘status quo as threats to cultural preservation’ (Narayan 1998: 95).

The judicious labelling of specific changes and not others as expressions of westernization permits a depiction of undesirable changes as inexcusable betrayals of entrenched and fundamental traditions, while desirable changes are perceived as simply practical alterations that are fully consonant with the protection of cultural values (Narayan 2013). Not surprisingly, the gender of the actors appears to be an element that determines if a specific change is considered an example of westernization that is incompatible with tradition. For example, gender equality and autonomy issues are characterized as Western conceptions by the same groups who use the language of rights in arguing for political and religious rights in plural legal systems. I also do not imagine that the many northern Nigerian men wearing shirts and trousers or suits today consider themselves wearing Western attire. In this context, I contend that what counts as westernization is very specific; modifications affecting women and the family are more controversial within ethno-religious communities than transformations with respect to men. As reflected below, in many instances, men appear to be allowed more cultural liberty to effect changes, than women, and their changes are less frequently branded as ‘westernization’. Also, in several other examples less linked to gender, artefacts, processes, and ideas originating in the West, from computers to cars to constitutions, are embraced and modified for local use, without generating a discourse that frames them as symbols of westernization, while other ‘borrowings are seen as problematically Western’ (Narayan 2013: 27).

In northern Nigeria, rather than a persistence of ethno-religious tradition in the face of Western or modern impositions, what we see is instead an incomplete westernization, cultural muddling, and the enthusiastic acceptance of specific modern practices and values. For example, the majority of legislation relating to public service, commerce, revenues/taxes, administrative matters, banking, and the military consists of policies either inherited from the colonial authority or adapted from elsewhere. In sharp contrast, rules governing personal and family matters are regulated almost entirely through Muslim jurisprudence and justified with reference to Islamic law. Also, upon closer analysis, the Sharia Penal Code used by northern Nigerian states is different from the main tenets of Sharia (Magashi 2015). Unlike the unmodified provisions of the Quran and the sunnah, the Penal Code downplays certain offences and penalties. This was done to reflect a restrained Sharia for the country (Magashi 2015). Islamic banking is another example. Riba (usury) or any form of interest is considered very offensive in Islam. The Quran dismisses persons involved directly or indirectly with usury, but Muslims in northern Nigeria and their government normally charge interest on loans because it is understandably difficult to have feasible economic systems today without these practices (An-Na’im and Henkin 2000).

The forces of westernization preventing the eradication of child marriage are paradoxically also responsible for the recent marriages of girls by northern Nigerian political elites. Take the example of a 49-year-old politician who married a 13-year-old girl from Egypt and paid her bride price with foreign (Western) currency, $100,000 (Daily News 2010). Public figures and religious leaders (Salafi clerics) condemn individualism of Western values and act like they are completely oblivious to the changing social realities in their communities while they drive imported luxury automobiles, and plan European or American vacations (Donnelly 1984). Similar arbitrariness is demonstrated by Boko haram (meaning ‘Western education is forbidden’) in northern Nigeria. Boko haram’s goal is to purify Islam by rejecting secular Western education but appears to have no qualms about the cultural effects of its considerable dependence on foreign or Western-produced weapons to maintain state power or the use of media and other modern technology to broadcast their ideological messages. In other words, the ethno-religious traditions used to defend pluralism against Western ideological intrusions far too often no longer exists. While acknowledging some genuine claims of culture, I believe it is important to be attentive to ‘cynical manipulations of a dying, lost or even mythical cultural past’ (Donnelly 1984: 411).

We should also not be deceived by criticisms of the inappropriateness of Western human rights made by exploitive regimes whose practices have at best only a weak connection to culture and religion (Donnelly 1984). For example, after a close assessment of the political framework in northern Nigeria, it is not clear that Nigerian Muslims reject Western ideals of democracy and equality in favour of Sharia. In northern Nigeria, political elites use the language of constitutional rights for the equal distribution of state resources along religious and ethnic lines, in crafting their local definition of democracy and equality. Debates over Sharia also include common expectations about the benefits of democracy in religious terms, contending that citizens lack essential resources (dowries, jobs, food, and education) to live decent Islamic lives (Kendhammer 2013). Instead of rejecting democratic institutions as an obstacle to Sharia, Sharia proponents maintained that Islamic law implementation would increase their performance by protecting the religious ‘rights’ of Muslims, improving economic growth and social justice. As such, even if Sharia proponents in northern Nigeria presented themselves as ‘restorers’ of Islamic social institutions, it was their ability to frame the Sharia debate using a language of rights and development that played the biggest role in attracting mass support (Kendhammer 2013). This ‘rights’ framework played a significant part in linking explicitly religious demands to democratic governance (see Bratton 2003). Relying on constitutional provisions and invoking the language of rights reinforces Western liberal democratic ideals. Hence, I am of the view that the nationalism in northern Nigeria is not a complete rejection of the West but instead a justification for the selective appropriation of aspects of Western modernity.

4.2 A way forward

From my point of view, power in a legally plural society is symbolic; it is the ability to structure public disputes, to define reality, and that power rests on cultural and religious elites. As such, I contend that part of what encourages the persistence of child marriage and gender inequality in northern Nigeria is the ability of local elites, amply independent of the rest of Nigeria, to carry on their own religious and cultural agendas. I believe a society undergoing a culture war faces severe struggles. It would lack shared fundamental ideals and norms, and so its capacity to make public policy decisions implementing human rights principles is seriously compromised (Thomson 2010). Certainly, a plural society without such basic common ground might hardly function. This is especially true in a country as diverse and multifaceted as Nigeria. Consequently, in reflecting upon the politics of legal pluralism, emphasis should be less on group difference in Nigeria but on what elites and leaders of such groups demand in the public domain.

The question of whether northern Nigeria has room for or could be amenable to, thinking in terms of rights of women and girls remains open. However, focussing on pluralism alone rather than structural obstacles may be unproductive. I believe the task of democratic equality is to establish neutral public institutions in society where the struggle for cultural legitimacy, appreciation of cultural disparities and the contention for cultural narratives can occur without domination (Benhabib 2002). To ensure a consistent application of human rights norms, the Nigerian state must acknowledge that there are severe limits and resistance to formal laws within the society, that there are spaces where its authority is not absolute and that ‘legal pluralism is a fact’ (Merry 1988: 870). I do not think that Nigeria needs a common religion, a common moral perspective, a common understanding of childhood, or anything like that. At the same time, it needs to have something normative that holds its plurality together.

Very few women in Nigeria participate in local and national politics and enter professional and public spheres of activity initially designated to be exclusively male. The political elite of ethno-religious groups, consisting primarily of men, lobby government officials demanding as a matter of religious authority that they not be required to comply with one or another statutory obligation that they find offensive because of religion. Legislators concede to this political pressure and justify their actions, as appropriate constitutional deference to the religious interests and group rights. This reflects widespread self-centeredness and indifference to the plight of women and children. In addition, probably very few federal legislators were once girl-children of religious parents who married them off at young ages. They can thus casually legislate away benefits for girls who are in such families without worry, perhaps even believing that they are doing a good thing by remaining neutral on ethno-religious issues. Or they may think they are accommodating religious diversity, which could be considered progressive in multicultural environments. Those in mainstream Nigerian societies may forget these children and never come to understand their suffering. The harms experienced by child brides are real and well documented and should weigh heavily in the balance. My analysis in this paper inevitably yields the conclusion that religious pluralism is not a sufficiently significant state interest to justify a denial of protection to girls.

Any reform strategy in northern Nigeria must focus on ensuring that women are more involved in the formulation of cultural policies at all levels. Emphasis should not only be placed on creating programs ‘for’ women but instead ‘with’ women. Women, because of their experience of violence and/or discrimination are often more likely to be girls’ main supporters in contesting present-day childhood experience of violence within culture. Also, given the authority of older women over younger women, older women are uniquely positioned to attain the dual objective of either ‘honouring tradition or negotiating change’ (Shell-Duncan 2018). Rather than opposing change, some older women may be positioned to reassess norms and practices while seeking solutions to protecting the physical well-being and cultural identity of girls in their families. Acknowledging older women as possible change makers and relying on the flexibility and adaptability of social norms, it may be possible to conceive interventions that encourage the abandonment of practices like child marriage without undermining the value of culture (Shell-Duncan 2018). To ensure that there is a gradual transformative change in northern Nigeria, it is also important to ensure that community members understand and support the changes to be made. And so, a particularly important initiative against child marriage is community education. This includes placing emphasis on girl child education, public awareness campaigns in the media, curriculum development in schools, gender training, and public events such as campaigns and protests. Local adaptation is vital since messages must be framed and presented in ways that are understood and generate shared belief and collective action, in mediums that are heard, and in places where people will notice, for example, through television or radio, t-shirts, brochures with local designs, or community meetings. The method and the message should be tailored to the specific community. NGOs in northern Nigeria are well placed to promote and encourage sustainable cultural transformation designed to protect girls from HTPs. There are several NGOs in northern Nigeria doing long-standing work with communities and girl victims of child marriage. These NGOs have been at the forefront of advocating new ideas, promoting the needs of the girl child, developing community-based approaches to rights protection and urging states to promote and protect the rights of women and girls.

Men and boys can also be engaged as potential allies and proponents for social transformation in northern Nigeria. For example, implementing and evaluating educational rights-based workshops or programmes in which both girls and boys, from very young ages, can learn about gender equality. Such early proactive interventions prioritizing gender equality could encourage and monitor how future generations of both girls and boys can be engaged in requisite social and legal changes. A particular focus on the role of young boys is warranted given that girls and women should not be shouldering the burden of campaigns and interventions for several obvious reasons, and that rights-informed boys and men can and must serve as models of gender equality and parity from whom other boys and men can be inspired. However, mechanisms involving men and boys will need to be contextually specific and be informed by very clear set of principles that strongly considers the fact that the social realities of women and girls in northern Nigeria are organized around male needs and male perspectives. And so, care must be taken to ensure that engaging boys and men for gender equality does not detract from efforts to empower women and girls and is supportive of and furthers progress towards strengthening the commitment of national justice systems to end gender-based violence.

5. Conclusion

This article discussed the manner in which legal pluralism is currently managed in Nigeria, drawing attention to the constitutional and legislative dimensions to child marriage regulation. I try to understand how human rights discourses and processes of state reform to promote greater gender equality are affecting different normative systems. As seen in the case of Nigeria, various rights may be invoked, but the extent to which they are achievable depends on numerous factors, including complicated historical legacies and power relations. Nigeria has a complex social field in which human rights, national law, local norms and practices, power structures, and history shape the framework in which struggles for women’s rights take place. I argued that the conflict between the need to preserve minority culture and the protection of rights forms the basis for how legal reforms have failed to address the real issues affecting women and girls within ethno-religious communities. Ethno-religious differences divide Nigeria, and so reforms towards cross-ethnic matters in accordance with the more inclusive ideals of human rights are not easily sustained. Tribal divisions, as the basis for most state policies, have set the goal of human rights realization on the horizon for women and girls, but never quite realized. State law tends to pacify ethno-religious groups by concealing from its scrutiny how harmful and restrictive certain family relationships are for women and girls.

This article also called attention to the facts of change in northern Nigeria so that child marriage reform agendas are not delegitimized by pleas to the maintenance of legal pluralism. I contended that religious and political actors are strongly involved in local transformative processes defining ethno-religious practices as sacred and long-standing traditions. There is currently no firmness of conviction over the minimum age of marriage issue in Nigeria because of the need to protect the pluralistic nature of the state. Despite the blatant harmful effects of child marriage, the practice persists. It is a necessary institution that guarantees specific forms of control and order designed by prevailing patriarchal ideologies. And so, my appeal to law in Nigeria is no less than an appeal to the state to re-order power relations. This is a difficult undertaking. It can by no means be assumed that the men in power in Nigeria will freely give women and girls equal rights. As we have seen, in the culturally sacred family, men maintain a sexual, marital, and moral dominance, which many will be reluctant to abandon.

Acknowledgements

I would like to thank the anonymous reviewers. Their comments have helped me to substantively increase the depth of my analysis, for which I am extremely grateful. The usual disclaimer applies.

Conflict of Interest

There is nothing to declare.

References

Footnotes