Los encubrimientos de la Afrobolivianidad

It has been mentioned previously that Nigeria is now a Federal Republic of nineteen States and a

Federal Capital Territory.^ W hen the country became a Federal Republic on 1 October, 1963, it was given a

constitution which apportioned legislative powers between the Federal Government and the then Regional (now State)

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G o v e r n m e n t s . The 1963 Constitution contains an Exclusive Legislative List of subjects upon which the Federal

Parliament has exclusive powers to make laws, and a Con­ current Legislative List of subjects upon which the Federal, or a State Parliament could legislate. The States have exclusive jurisdiction to legislate on those subjects which are not included in either of the legis­ lative lists.

With special relevance to marriage, the 1963 Constitution provides that the Federal Parliament shall have exclusive power to make laws with respect to

"Marriages other than marriages under Moslem law or other customary l a w , .annulment and dissolution of, and other matrimonial causes relating to, marriages other than marriages under Moslem law or other customary law."^

Marriages other than marriages under Moslem law or other customary law refers to marriage contracted

1. See above, Chapter I, p. 78. For the definition of the Federal Capital Territory, see Constitution of the Federal Republic of Nigeria (Enactment) Decree, 1978, First Schedule, Part II.

2. The Constitution of the Federal Republic of Nigeria, 1963, No. 20 of 1963.

3. I b i d .. s. 6 9 .

under the Nigerian Marriage Act (statutory marriage).^ This provision gave rise to u n c e r t a i n t y . as to the precise scope of the Federal G o v e r n m e n t s legislative

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powers. Did the Federal Government have exclusive power to make laws affecting the relationships of husband and wife, and parent and child, of a statutory marriage, including

rights and duties of the spouses, and property rights,

especially rights of succession as between husband and wife, and parent and child; or was the legislative powers limited to the creation, annulment and dissolution of marriage, leaving to the States1 legislatures the right to regulate the incidents of a statutory marriage; or, as posed by Kasunmu and Salacuse, in Nigerian Family L a w , was the legislative power of the Federal Government merely "to establish the conditions and formalities necessary for a man and w o man to become husband and w i f e ? 11

In 1956, the former Eastern R eg i o n of Nigeria enacted the Age of Marriage Law,^ w h i c h made a marriage, or promise or offer of marriage between, or in respect of persons, either of whom is under the age of sixteen, void. Section 2 of this statute stated:

"In this Law C a r riage* includes a marriage con­ tracted under the provisions of the Marriage Ordinance and a marriage according to customary law"^

This Law was patently invalid, insofar as it attempted to legislate on the formation and annulment of a statutory marriage, matters reserved for the Federal Parliament in the Exclusive Legislative List.^ In fact, the Eastern Region Legislature seemed to be unaware of the

fact that it had no competence to legislate on statutory 1. See above, Chapter 1, p.58,- n.5

2. See e.g. Alfred B. Kasunmu and Jeswald ¥. Salacuse,

Nigerian Family Law. (London, Butterwoirths, 1966) pp.2-6. 3. Kasunmu and Salacuse, -o£.cit., p.3.

4. Eastern Region, No. 22 of 1956. 5. Ibid.-, s.2.

6. See Kasunmu and Salacuse op.c i t .. pp.4-5 cf. E.I. . Nwogugu, Family Law in Nigeria. (Ibadan: Nigeria,

marriages. For example, the Minister for Welfare, in introducing the second reading of the Bill, of the Age o f .. Marriage Law, 1956, in the former Eastern House of Assembly,

stated that it was a "Bill for a.Law to make v oid all marriages between persons under the age of sixteen",'*' and,

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in the debate on Limitation of Dowry Law, 1956, the same Minister drew the attention of the House to the fact that the Bill was limited to customary marriages. He said:

"Honourable members will note that marriages, under the Marriage Ordinance, have b e e n excluded from the provisions of this Bill;., Those who get married under the Marriage Ordinance are usually educated and comparatively well-off. They can look after themselves. It would not be fair to insist upon limiting incidental expenses to £5 w h e n the cost of an engagement might be m uch more. Expenses of the Church ceremony and the wedding reception could not be limited to £5".j

None of the Members of the House pointed out the pertinent fact that it was not within the legislative com­ petence of the House to legislate on statutory marriages *

The Age of Marriage Law, 1956, was amended and limited to customary marriages only, in the revised Laws of Eastern Nigeria, 1963.^

Some bf the difficulties of interpretation of the constitutional provision (quoted above) are rendered

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obsolete b y the Matrimonial Causes Decree, 1970 w h i c h p r o v i d e s :

"The Federal Military Government hereby decrees as follows:

Part I - Jurisdiction

(i) After the commencement of this Decree a matrimonial cause shall not be instituted otherwise than under this Decree, and if a matrimonial cause has b e e n .instituted before

1. See Eastern Region Parliamentary D e b a t e s , Eastern House of Assembly, 1956 (Enugu, .G o v e r n m e n t . P r i nter), Vol.II, P* 671.

2. Cap 6, Laws of Eastern Nigeria, 1963 Revision.

3. Eastern.Region: Debates, Eastern House of Assembly 1956, ojD.cit. p.674.

4. Cap 6, Laws of Eastern Nigeria, 1963 Division.

the commencement of this Decree but not com- .pleted, it shall be continued and dealt w ith

only in accordance with the provisions of this Decree prescribed in that b e h a l f ” .

✓

Section 114(1) of the Decree provides that "matrimonial cause” means:

"(a) proceedings for a decree of (i) dissolution of

marriage, (ii) nullity of marriage, (iii) judicial separation, (iv) restitution of conjugal rights or (v) jactitation of marriage;

• (b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation; or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation;

(c) proceedings w i t h respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardian­ ship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph

(a) or (b) above, including proceedings of such a kind pending at, or completed before, the commencement of this Decree;

(d) any other p r o c e e d i n g s ■(including proceedings w i t h respect to the enforcement of a decree, the

services of process or costs) in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph (a), (b) or (c) above, including proceedings of such a kind pending at, or completed before, the commence­ ment of this Decree; or

(e) proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of

judicial separation, or proceedings in relation to proceedings seeking such leave".^

The States, therefore, are not competent to enact laws dealing w i t h a "matrimonial cause" as defined

1. Matrimonial Causes Decree, 1970, No. 18 of 1970, 9. 114(1). | t t i t I I | i

in the.Decree, in relation to a statutory marriage. The division of legislative powers between Federal and State Governments has been retained by the n e w Constitution of the Federal Republic of Nigeria,

1 9 7 9 ^ In relation to marriage the n e w Constitution provides that the National Assembly shall have exclusive powers to make laws in respect of

nThe formation, annulment and dissolution of marriages other than marriages under Islamic law and customary law including matrimonial causes relating t h e r e t o ” .2

This provision is more precise than its

predecessor, and is in accordance wit h the Matrimonial Causes Decree, 1970. It should be noted that the two statutes do not entirely deprive the States of legis­ lative power in relation to statutory marriage. The States m a y legislate on matters w h i c h do not come under the definition of "matrimonial cause” , for example, rights of succession between the spouses, and between parent and child, of a statutory marriage.

The Constitution of the Federal Republic of Nigeria (Enactment) Decree, 1978, which is due to Come into force on 1 October, 1979, provides as follows:

” (7) The House of Assembly of a State shall have power to make laws for the peace, order and good govern­ ment of the State or any part thereof w i t h respect to the following matters, that is to say -

(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;

(b) any matter included in the Concurrent Legislation List set out in the first column of Part II of the Second Schedule to this Constitution to the extent pre­

scribed in the second column opposite thereto; 1. Section 4, Constitution of the Federal Republic of

Nigeria (Enactment) Decree 1978, Decree No. 25 of 1978. 2. Ibid., Item 58, Exclusive Legislative List, Second

Schedule, Part I.

3. Section 279 (1) Constitution of the Federal Republic of Nigeria (Enactment) Decree, 1978.

(c) any other matter .with respect to which

•it is empowered to make laws in accordance w i t h the provisions of this Constitution” .^ Marriage under 'Islamic and customary laws are not included in either the Exclusive or Concurrent

Legislative Lists, and are, therefore, with i n the exclusive jurisdiction of the States,

To summarize, the National Assembly has exclusive power to legislate on the formation, annulment and dis­

solution of statutory marriage, including /"matrimonial cause” as defined by the Matrimonial Causes Decree, 1970, A State Assembly has exclusive power to make laws w ith reference to customary and Islamic law marriages within the State, as well as on certain ancilliary matters, not included in the definition of "matrimonial cause” , in relation to statutory marriage.