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Violence Against Girl-Children in a Rights Paradigm: Deconstructing Child Marriage from Islamic Perspectives
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Hameed Agberemi

The personal is often political, especially on matters where the stakes are made high both by vested interests that enjoy the status quo and those determined to subvert existing hierarchical authorities. I therefore start from the personal. My wife and I were married upon the completion of her law degree at the university. She was 26; I was two years older. Both of us were and are believing and practicing Muslims, decidedly not secular, yet both positive in our affirmation of personal and collective responsibility; of human dignity, and of the equal humanity of all – regardless of sex, ethnicity or class.

It is such affirmation of the humanity of all that drives the conviction that the marriage of an 11-year old child on the excuse that she has commenced menstruation involves extreme violence: violence against a childhood interrupted, stolen and repudiated; violence against body and mind; and violence against the faith and path of al-Islam – for such violence is carried out as favoured by, when not done in the name of the Almighty. Yet, it is the same positive affirmation of the humanity of all that makes one permanently aware that one’s own experience is not necessarily a model for others to follow; that the full exercise of human dignity necessitates self-determination, at personal and collective levels – and that contexts and circumstances differ most widely across the diversity of the human condition.

Marriage after all does not mean or symbolize the same everywhere; does not offer the same privileges everywhere; does not entail the same losses everywhere; does not receive the same protection everywhere; does not involve the same risks and gains everywhere; and is not sought for the same reasons everywhere. The very idea that one single culture, Western or other, represents the best life possible, a model for all humanity to follow – the idea that a universal minimum age of marriage can or should be set – is both ignorant and false, just as it is harmful. That idea must be set firmly in the same realm with all other hegemonies. At public and private levels, the denial of collective rights involved in such an imposition would entail violence that cumulatively would be comparable to the private violence of domestic hegemony that goes with child marriage itself.

Islamic Law – what is commonly, if inappropriately called ‘Shari’ah’ – was codified from ’usool-ul-fiqh, the human jurisprudential interpretation of the principles derived during the first three centuries of Islam from the Qur’an (which Muslims believe is God’s message) and the sunnah, the sayings, teachings and examples ascribed with varying levels of authenticity to Prophet Muhammad. A major tragedy of Islamic history is that the process of continuous re-interpretation to derive new Islamic laws to fit new contexts – what is called ijtihaad – suffered a closure by which all further interpretation ceased. This closure introduced a lie into the claim by Muslims that Islam was a universal message for all time, because by this closure of ijtihaad, Islam, which was a process with fixed principles but dynamic applications became overall a frozen system. It is the legal components of this frozen system that many today commonly call ‘Shari’ah’.

What is now called ‘Shari’ah’ is in actual fact no more than the frozen classical Islamic Law that was codified by the end of the third century of Islam. Classical Islamic Law – what is today popularly called Shari’ah – was sourced from ’usool-ul-fiqh, a term that did not conceptually exist until the time of the genius-jurist-theologian-imam Idrees M Shaafi‘ who was born 150 years after the Prophet had died. This historical fact, that Islam already existed for more than 150 years before the evolution of what we now know as Shari’ah and the principles (of ’usool-ul-fiqh) from which it was derived; is the clearest indication that Islam is not synonymous with Shari’ah.

That most Muslims, after centuries of the closure of ijtihaad, have come to see Islam as synonymous with Shari’ah encapsulates the ongoing tragedy that has to be overcome. It is necessary to overcome that constraint since large numbers of Muslims everywhere appear to remain tied to the idea of Islam playing a role, big or small, in the public sphere, in spite of two centuries of imperatives – sometimes violent – aimed at getting them to think differently.

Now, under “Shari’ah” (actually classical Islamic Law), a child ceases to be a child at puberty.

For boys, the onset of puberty was always fluid, for obvious reasons. For girls it was marked by the onset of menstruation, the point at which a girl was capable of conceiving a child. One day a girl was a girl. And the next day, she was a woman. Today, even though human beings and the world in which they live has changed tremendously in 1400 years, “Shari’ah” has not changed because reforming “Shari’ah” through ijtihaad is now widely seen as changing Islam, which for ordinary Muslims is tantamount to an admission that Islam is faulty. While re-interpretation remains closed, we are stuck with “Shari’ah”, as it is. This absence of reform is the greatest problem facing Muslims in today’s world.

By the way, this absence of reform is caused partly by internal factors: authoritarian political cultures and regimes, poor governance and corrupt political and religious elites. It is also partly due to external factors. For example, world-leading ethicist Thomas Pogge points out that poor governance and corrupt regimes survive in many parts of the world because such a state of affairs is in the interest of rich powerful countries[i]. It is well known that ruling regimes in many Muslim countries, many of which have oil, are accountable more to foreign elites than to their own people. There is also the problem of colonialism, which prevented any further evolution of Islamic Law in the light of modern developments beyond the 18th century and turned Islamic Law into a domain of resistance.

Yet, colonialism, though violently hegemonic and deserving resistance, also brought the benefits of modernity at the time it occurred. Islamic Law thus became a form of resistance to colonialism (and thus modernity), and became even more frozen psychologically as a golden past to be retrieved. Up till 1800 when colonialism intensified, the Islamic Law system in Ottoman Turkey was considerably more advanced than the Western legal system in several spheres. With lack of use, lack of institutionalisation, and confinement into the unregulated private sphere, Islamic Law ceased all further evolution and became the domain of resistance to preserve Muslim values and cultures. Today, Islamic Law is understandably behind the times, to put it most mildly. The task facing Muslims is to institutionalize reform so that Muslims can live Shari’ah in the 21st century, and remain true both to their values and their times.

As earlier stated, under classical Islamic Law, a child ceases to be a child and was considered mature (blgh in the Arabic root term) at puberty. 1400 years ago, the onset of menstruation would typically occur between the ages of 14 years and 17 years, and Muslim girls would typically become sexually active wives very soon after menses began (since they were usually married before or soon after[ii]).

Today, children as young as 9 years old commence menstruation. In addition, the current state of human knowledge (of medical science) allows us to know that whereas the capacity to conceive a baby (marked by the onset of menstruation) is now achieved sometimes as early as 9 years old; the capacity to safely give birth to a baby comes years after. Universal medical evidence now shows that a moderately high level of first-birth safety is usually not attained until about the age of 17 years when the pelvis (hip bone) and the birth canal achieve their full size and stop further growth[iii].

On the basis of this biological and natural fact alone, which shows a gap of years between the ability to get pregnant and the ability to safely give birth, the idea of menstruation marking maturity / adulthood ought to see reform. This is aside from the social fact that what it took to parent a baby 1400 years ago – when carers in the extended family were plenty and life was simple – is not what it takes today (psychologically and emotionally) to competently parent another human being in the modern world. This is moreover a role which today has to be combined with the adult-role of wife – with all it psychological, economic and biological implications.

It is not Islamic to insist in the 21st century that the onset of menstruation, say in a 9 or 10-year old marks maturity or adulthood. Islamic leaders, jurists and scholars have a duty to alter the definition of buloogh in the face of current truths. Their continuing failure not only constitutes violence against Muslims (especially poor Muslim girls); by such failures and silences, they do violence immense violence against their own souls. I will later address the often-cited argument related to the marriage between the Prophet of Islam and ‘Aisha, the only wife of the Prophet that was neither a widow nor a divorcee.

Every intelligent person must know that children do sometimes menstruate, as early as the 9th, 10th or 11th year. Yet every sane person must accept that sexual intercourse is harmful to children. Those who ignorantly or immorally contest either reality are not only beyond persuasion or dialogue; they are unfit to speak anything in God’s name. Those who decide today to fix – permanently and for all eternity – the commencement of menstruation as the marker of maturity and the signifier of adulthood, are not only ignorant of physical truths, but also oblivious to God’s eternal message and wondrous ways.

Essentially because marriage involves sexual intercourse and the potential for motherhood, it is violence to place any child in a situation where she is forced to play an adult role and bear a child. It should therefore be a matter of commitment to humanity that no child should be married when she is of an age at which she is too young to competently play the role of wife and potential mother. Yet such commitment must concede that beyond the basic biological determinants, the age at which such roles can be competently performed vary from culture to culture.

Beyond the physical and biological capacity to function sexually (not merely as a passive object but as a willing subject and co-participant) whether or not a 15 year old is competent to be wife will depend on a wide array of psychological, social, economic and cultural factors. Beyond the physical and biological capacity to bear a child with a decent level of safety to mother and child (at birth and thereafter); whether a 14 or 16-year old is fit to mother a child will depend on the widest array social and other factors, which of course include the type of family structure – nuclear or extended – that obtains in the culture in question; whether support structures are available; whether for example the care of the infant is solely dependent on the new mother or whether care is shared.

So in Sweden[iv], 18 years old is rightly set for the minimum age of marriage. Turkey[v] and South Africa[vi] rightly set 15 years. Egypt[vii] and the United Kingdom[viii] rightly set 16 years. Several states of the US allow the marriage of 14 year-olds under special circumstances[ix]. To ignore the diversity of the human condition entails a great deal of ignorance and arrogance.

The equations even go beyond the diversity of culture: I for one would consider it harmful for a 14-year old to be married as fourth wife to a 55-year old man in 21st century society. This is because the Qur’an teaches me that marriage is based on mutuality[x]. When I read Qur’an 30: 21 taken together with Q 2:187 and other such verses, it is clear to me that sex is only correct when it is a mutual enterprise, not a an experience in which a man fulfils his needs through a woman who is passive or who lacks the status of being an active agent and co-beneficiary in a pleasurable encounter. How is this Qur’anic ethic to be fulfilled when men in their 30s and 40s thrust themselves upon 12 and 13 year-olds?!

While mutuality is possible between two adults, even when age differences are substantial, the mutuality spoken of in the Qur’an is not possible between a 14-year old teenager and a 55-year old adult who has other adult wives, and possibly children in their 30s. The day-to-day realities of marriage obviously involve mostly subconscious but constant compromise, partnership and negotiation (and partnership and negotiation are meaningless when parties are so unequal). Yet I would see no wrong in the same 14-year old girl being married to a 15-year old boy to whom she consents where such practice is socially and culturally valid.

In short, so complex and so tied to the diversity of culture, class and condition is human marriage that ignoring all these differences and nuances and going ahead to impose a universal age of marriage upon peoples with different cultures amounts to cultural violence.

It is in the above context that one may raise concerns about the new/upcoming Children’s Bill, which was initially roundly rejected when put to the lower chamber of Nigeria’s legislature only to be dramatically endorsed almost without debate when later re-introduced. We too often count the success of human rights advocacy in terms of legal changes made. It is doubtful whether such a dramatic and embarrassing ‘success’ indicates real development, since they so vividly minimize the role of agency and choice by communities, a matter so important in any human rights discourse. In the long run, human rights are not advanced by deference to external imperatives and impositions – especially those that minimize and stifle democratic exchanges.

Without suggesting that vesico-vaginal-fistula (VVF) happens to every under-aged girl giving birth, or that it occurs only to mothers who are too young, or even that it is the only (physical, not to mention psychological) harm that child mothers face, I want to use it as an illustration because it is quite common with under-aged mothers. Causality is substantiated to the extent that there is overwhelming medical and statistical evidence showing that child marriage massively increases all the risks of maternal mortality (death) and morbidity (injury during birth)[xi]. One such common morbidity is VVF whereby due to childbirth difficulties, a woman suffers a rupture of tissues that leaves the vagina and the urinary passage to the bladder joined together, causing the loss of the ability to control urine.

How can we as Muslims lay the claim to Justice if we make ‘Islamic’ claims to support the marriage of a 10 year-old, whose marriage is consummated after the eighth menstrual cycle at age 11, and who, while still a child slightly under 12 faces the prospect of giving birth to another child? Because the hole in her pelvic bone is still too small, she labours for 60 hours, the baby’s head being unable to pass through the pelvis. The baby eventually is a still-birth having been asphyxiated by too long being trapped in the cervix.

The girl-mother survives, but ends with fistula, no longer capable of controlling her urine. Labour leaves her battered in body and soul, her breasts are full and sore, her genitals damaged, her whole body in pain, and her baby is dead leaving her with nothing to show for the whole endeavour. Her mother-in-law and other members of the extended family tell her that she is a ‘weakling’ and is the first daughter-in-law who has ‘failed’ to successfully give birth and lost them a son at birth. Weeks after, because she is still “leaking urine, she is smelly, embarrassing and a source of shame”, she is cast out to live in a separate quarter within the compound, or even outside altogether. Her mental trauma worsens.

After being cast out for six months due to her condition, she is in due course divorced. Her husband who is typically at least double her age; joined by others; including the imam of the nearby mosque, explain to her that ‘chronic illness’ and  ‘defects’ are a legitimate ground for divorce in Islam, and that one of the legitimate grounds for divorcing a woman according to (Maliki) law
[xii] is ifda’ or urinary incontinence (leakage of urine), which she now suffers.

She becomes ultimately convinced that she has been a multiple victim, but somehow, all those around her tell her that all that has befallen her is allowable in Islam: the marriage, the consequences, and the divorce. Her faith in Islam eventually departs her even if she doesn’t affirmatively renounce Islam. Now, how can we justify the marriage of this girl, all the consequences of that marriage, and ultimately her divorce?

The above illustration, experienced in real life by thousands and thousands of girls around the Muslim world, demonstrates the tragedy of postponing the reform of Islamic Law.

The foregoing and what follows are an attempt to deconstruct prevalent notions of ‘maturity’ in traditional understandings of ‘Islamic Law’ with the aim of fashioning a rights framework for ending Child Marriage in Muslim societies, especially Northern Nigeria.

It is acknowledged that human rights legislation are not only useless but also counter-productive for overall human rights advocacy unless they have at least a chance of enforcement. Taking as point of departure the reality that laws that stand no chance of being accepted, much less made enforceable within the target populace are at the very least unhelpful to the extent they are not only ineffective, but also widen the gap between the lived realities of communities and the domain of formal laws – and thus people’s overall perception of Law. Because law is meaningless unless enforced by the threat of sanction, I think it counter-productive to human rights, especially the rights of those who most deserve protection, to fix 18 years as the minimum legal age of marriage in Nigeria.

In arguing above that the use of the onset of menstruation as marker of maturity is un-Islamic today; I have deployed a largely biological argument from the moral framework of Islam. In contending that the marriage of children is wrong, I have argued along the lines of natural law. Under such arguments it would be a straightforward matter to describe as un-Islamic, harmful, wrong and evil, sexual intercourse with a 9, 10 or 12-year-old wife even if she has commenced menstruation.

The major aim of such arguments will be to show that the onset of menstruation cannot
Islamically or rightly serve as the marker of buloogh (maturity or legal majority) today. The principle of maqaasid-al-Shari’ah, which emphasizes the intention or spirit of Shari’ah in the application of fiqh (and the interpretation of religious concepts and the derivation of religious laws), would be helpful in establishing such arguments. Islamic jurists have often demonstrated throughout history that the overall intent and spirit of Shari’ah is more important than specific legalisms, and that ijtihaad is required when there is a gap or contradiction between the maqaasid, the spirit or intent of Shari’ah on the one hand, and a formal adherence to legalism on the other.

It is also possible to argue that the role of a mother in Islam is central, since Islam names the mother as the first teacher and the one who offers the first forms of guidance in life to children. Whether a 12, 13 or 14 year old is competent, psychologically and knowledge-wise, to fulfill the role of a Muslim mother in today’s complex world is anyone’s guess. It is now accepted worldwide that 8 years of formal education in school (roughly equivalent of Junior Secondary education) is the minimum education that anyone requires to competently cope as an adult with the challenges of the modern world.

Constitutional guarantees, several Nigerian laws and policies, including the national policy on education (NPE) thus make the minimum of Junior Secondary education (JS3) compulsory for all Nigerians. Very clearly, the nature of secondary education (unlike tertiary education), make it close to impossible to combine secondary education with the role of wife and mother. There is thus another moral basis for delaying marriage till after. Nigerian students complete their JS3 examinations usually between the ages of 13 and 16 years.

The Islamic Law principle of maslahah, by which regulations are applied on the basis of what is in the public interest of a Muslim community, can be very helpful in establishing the argument that Muslim women or Muslim mothers can only fulfill their Islamic role if they have the minimum education required to function as a competent adult citizen in the modern world. So can arguments based on the far-reaching public health, social and economic problems of under-aged marriage, all of which are contrary to the public interest of the Muslim community and require legislation to stop.

Yet, it is important to engage with definitions in a matter that is this controversial.

I address in this paper only child marriage: the marriage of children, specifically the marriage of girls to men. I am neither addressing “early marriage” nor am I addressing “forced marriage”. As for ‘forced marriage’, there is no controversy amongst Muslims as regards the status of ‘forced marriage’ whether of a young girl or a woman. Forced marriage is no marriage – null and void within the legal systems at issue. In Islamic Law, not only is a forced marriage void if consent was withheld or obtained with coercion, a forced marriage is either conceptually impossible or if possible under Shari’ah, not sustainable and prone to dissolution once the ‘bride’ declares that her consent was coerced[xiii]. Thus my discussion is not of forced marriage, but rather child marriage.

I am also not discussing “early marriage”, because I find the term to be not only unhelpful, but loaded with a lot of ideological baggage. What is early marriage? Does early marriage suggest that some age might be late for marriage? Do women have the freedom to marry ‘late’ as do men? How does this feed into the sociocultural imperatives that coerce women to marry at certain ‘deadline’ ages? “Early marriage” is very relative. For example, average ages of marriage for women keeps going up (now over 28 years) in Japan.

And most Japanese women are facing first-birth after marriage. On the contrary, women’s ages of marriage or cohabitation in the US, after going up steadily for many decades have begun falling rapidly. Even falling very much faster is the average age of women at first-birth. Beyond the ages of childhood and early teen years, terms such as ‘early marriage’ tend to fit into the larger discourse of cultural imperialism in which some cultures are posed as possessing a universalizing power over and above other cultures, because they represent the ‘best life’.

I think it unacceptable to so many outside the West, and counter-productive for human rights advocacy everywhere. The term ‘early marriage’ comes across to many as being loaded with ethnocentrism. Purely from the perspective of social scholarship, the terms ‘early marriage’ is ambiguous, lacking in specificity and therefore not very useful in categorizing a specific typology. That explains the focus on child marriage. When traditional people hear ‘early marriage’, they ask quite validly, how early is ‘early’.

Which leads to the question; “who is a child?”

The Convention on the Rights of the Child (which all countries have signed except the US and Somalia) establishes 18 years as threshold.  But the convention itself recognizes that other laws may rightly exist which set an earlier age for legal majority on other issues. The minimum age of marriage is implicitly one of these issues. As shown in the earlier examples, different countries have always understood the CRC this way.

I advocate the age of 15 years to be set as minimum age of marriage under law for the needs of today’s Nigeria. I argue that this does not change Shari’ah; but rather changes a principle (the age of buloogh) that no longer applies today. I also argue that such a change is needed if Islam (and Islamic Law) is to validate popular Muslim claims that Islam offers guidance for all time. Most importantly, I am arguing that leaders, judges, jurists and Islamic public intellectuals, within the northern Nigerian states that have adopted Shari’ah-based legislations do have a duty under Islam to construct a new hermeneutic and do the ijtihaad necessary, or make the necessary change by collective ijmaa‘.

The marriage of girl-children can be shown to be counter to the fundamental Islamic principles of justice, and the duty of leaders to protect the weak, apart from representing a gross contradiction to the aggregate societal aims of any community of Muslim believers. The range of physical, medical, psychological, economic, social and even spiritual damage done to young girls, their children and even their husbands (if they knew it) by early marriage constitute gross avoidable social damage and destruction of lives, and flies in the face of Shari’ah.

Those who oversee the implementation of Shari’ah-based legislation have a duty to protect from harm. Of course, a minimum age fixed today would not become Shari’ah since Shari’ah itself was not intended to become frozen, except on matters of worship: legislation would always be open to change with varying contexts and circumstances. Laws concerning social relations defy being frozen.
In arguing for 15 years to be set as minimum age of marriage instead of the 18 years being proposed by many within Nigeria’s human rights movement, I call attention to the fact that the Convention on the Rights of the Child (CRC) only employs a definitive threshold of 18 years for “childhood”.

The CRC itself envisages that other laws may rightly exist which set an earlier age of legal majority, while the age of 18-years remains fixed for legal majority especially with respect to liability for criminal punishments (such as the death penalty) and other related matters. The United Nations High Commission for Human Rights (UNHCHR) itself fixes 15 years as the recommended minimum age of marriage
[xiv], leaving States to set minimums according to their various socio-cultural and political contexts. As stated, different countries have set age ranges from 15 to 18 years.

I have chosen the 15-year benchmark for my advocacy because I can honestly advocate to Muslims on a 15-year minimum age using Shari’ah principles and the medical evidence of Muslim doctors over the decades[xv]. Also, my commitment is the protection of the vulnerable – not necessarily the achievement of a legislation on paper, one that is unlikely to work on the ground.

Under the human rights law principle of margin of appreciation, it would be more in favour of human rights that a 15-year mark is established in order to provide protection to the most vulnerable – the poor girls in the age range of 9 to 14 years – than establishing an 18-year mark that ensures rejection by entire cultural communities and forsakes the possibility of implementation. Putting forward 18-years as the minimum age of marriage, as the new Children’s Bill in the pipeline proposes, even if zealous, is quite ill-informed and ultimately counter-productive to the advancement of the human rights of the most vulnerable. It is problematic for implementation with regards to the poor Muslim communities at which it is apparently targeted to bring about positive change.

The employment of liberal frameworks that ignore cultural and socio-economic specificities and presuppose notions of Western cultural superiority are flawed, both in conception and in their consequences on advocacy efforts towards the acceptance of the universality of human rights. Obviously, the fixing the minimum age of marriage at 15 years (as has been done in numerous countries including South Africa) or at most 16 years (as obtains in Egypt or the United Kingdom) is not contradictory to the spirit of the CRC or the UN human rights commission and offers the best chance for acceptance and enforcement.

It also has better guarantees of protection for the most vulnerable girl children. Fixing the minimum age at 18 only ensures that the resulting legislation will be rejected in the very social spaces where it is most needed, and that the dire need of the most vulnerable for protection will be forfeited.
One must also address the dominant claim that child-marriage cannot be Islamically prohibited “because the Prophet married ‘Aisha when she was 9 (or according to some other reports, when she was 6 years old)”. 

It is interesting that the alleged marriage of ‘Aisha at age 9 has come to be accepted almost as a dogma. Several hadeeth collections seem to validate this claim. Yet, a closer study of isnaad shows that
almost every report is credited to Hisham Ibn Urwah, grandson of Asma. Hisham’s claim has not been without controversy over the ages. This fact is made plain by studying the seerah (Islamic history). Contradictions have been reported in his claims of Aisha being 9 at the age of marriage, when chronologically compared with Aisha’s date of birth, and her known age at death – and these in comparison to Hisham’s claims concerning the age of his own grandmother, Asma and the difference between Asma’s age and that of Aisha. These controversies can always be pursued inconclusively.

Yet for me, even if ‘Aisha can be shown to have been married at age 9, 1400 years ago, two things collapse the argument that it can then be right to marry a 9-year old bride today.

Firstly, it is known that this ‘marriage’ was actually a betrothal, as was common practice in the middle ages, and it is known that Aisha’s marriage was not consummated for several years after she was betrothed. If at all it is possible to determine today the age at which ‘Aisha commenced menstruation from the maze of historical reports at our disposal (some of which directly contradict each other, and are nonetheless simultaneously reported in the same hadeeth books); it is close to impossible to prove today beyond reasonable doubt the exact age at which ‘Aisha’s marriage was consummated.

Secondly and most importantly, it is important to point out that the very same persons who insist that ‘Aisha was married at 9 years old totally ignore all the reports that the Prophet consistently declined to numerous suitors the hand of his daughter
Fatimah in marriage, saying that she was “too young”. It is well known that Fatimah (the only offspring that survived the Prophet) was not married to ‘Ali until she was well into her teens.

Why then do Muslim men keep harping on ‘Aisha’s ‘marriage’ in Makkah, rather than on the Prophetic example in Madinah, where the message of Islam was fuller and more complete? Since when have serious Muslims begun accepting Makkan hujjah over that of Madinah? Why is the noise of Aisha’s age 9 so loud, and the latter Madinah example of the Prophet almost totally obscured?  The only explanation is patriarchy: male supremacy. The interest of patriarchy is obviously better served by perpetuating the marriage of men to girls (instead of to women). There is hardly any other way to explain this attitude of Muslim men.

Child marriage is no doubt a public health issue. It has reached crisis proportions in some parts of northern Nigeria, and there is no doubt that those who sustain such practices that violate the health and well-being of girls make use of Islam. I saw this myself during my one-year stay in the North. States with Shari’ah-based laws have a duty to take up the challenge by enacting necessary legislating. Islam does not expect marriage to be celibate; so marriage opens the possibility that a girl faces sexual intercourse and thus the potential for facing pregnancy and birth. It is useless to suggest that girl-children can be ‘married’, but the marriage not consummated until full maturity. Such stipulations would be totally unenforceable.

Yet any discussion of child marriage that ignores poverty is incomplete. We must always highlight the inextricable link between poverty and child-marriage. What are the commonalities shared by the child bride for example in Nepal, or by the Hindu girl in rural India, the Buddhist girl in Burma or Sri Lanka, on the one hand; and on the other, that iconic Muslim child bride in Pakistan, Bangladesh or Northern Nigeria?
Is it not the case that we associate the denial of sexual health and reproductive well-being to girl victims of marriage to one specific culture or religion? Why do we so often fail to critique those powerful images and icons that feed into global public opinion, which present or represent the child-bride as a Muslim girl, automatically – while at the same time failing to name extreme poverty as a causal factor and a commonality.

Only in 2003 did IPPF (planned parenthood federation) publish a comprehensive study on the inextricable link between child marriage and poverty[i]. Is our silence not complicity? Would there not be horror in ‘the West’ if civil/political rights and individual liberties were denied to the extent of the large-scale denial of socio-economic rights that we have seen in the global South?

Why do we accept and puppet frameworks that name as “second-class rights” those socio-economic and cultural rights which peoples of the global South, including Africans and Muslims find to be at least as equally important as civil/political rights and individual liberties? I interrogate the Women’s Movement’s claims of ‘global sisterhood’ in the face of its apparent acquiescence to unregulated capitalism, globalization and other imperatives that indirectly favour (women of) the global North while worsening extreme forms of poverty for women of colour – after all, the effects of poverty tells first and worst on women.

The global feminization of poverty impacts constantly on at least 1.5 billion women worldwide and forecloses all possibilities of their enjoying basic human rights or living worthy lives. What is the response to the accusation that Global Feminism, led, controlled and funded by Western women, who also set or drive most of the agendas, is not representative of the pains of women of the South, who after all also have agency, autonomy and choice, and should therefore have ownership with respect to these agendas? How do we explain the reality that the fight against the unregulated globalization and capitalism, that impoverishes women in our world in the worst ways, is being carried almost solely by Southern women such as the women of DAWN (Development Alternatives for Women in a New Era)?

Even though poverty is the biggest source of human rights violation to the largest majority of women (some 1.5 billion people), does the Global Feminist Movement prioritize poverty the same way it does ‘FGM’? What support against poverty comes from ‘sisters’ from the rich countries, who benefit from the status quo and are therefore complicit? Does the dehumanizing impoverishment of so many women and girls trigger the same calls for action that have been seen with FGC (Female Genital Cutting) especially given the unlimited opportunity offered by “female genital mutilation”[ii] to demonstrate the cultural savagery of “others”?

It is suggested that rights frameworks that ignore the role of poverty and the untenable denial of socio-economic rights in the sustenance of Child Marriage practices are negligently complicit and are a disservice to efforts to expand the rights of women and girls in an increasingly unequal globalising world.
Perhaps, the task of saving hapless girls from the violence of child-marriage and child-motherhood are made even more difficult by the mixed messages we send. Sometimes we suggest that sex is unhealthy and harmful to children. At other times, we suggest it’s only bad if it happens to children within the context of marriage – or only if the husband is a man who is (much) older. The discourse ultimately becomes ideological, with the poor victims no longer at the core. Perhaps we don’t really mind 13-year olds having sex.

We only mind if they have such sex as wives. Yet, in our discourse of child-marriage, we place sexual and reproductive health at the core. If the real argument is between two options: whether girls might have their first sex at 13 with a boyfriend or whether such sex should be with a husband; then perhaps the discourse will expand beyond health and well-being, which though remaining focal, might get pushed to the secondary level by the broader issue of cultural politics, ethics, political ideology and religious philosophy: totally out of the control of people who work in the area of public health.

With such a discursive frame, there is one side saying that since sex is not good for children, and since we all agree abstinence is best, then children should not be taught anything about how their bodies function sexually, should not be taught how to resist peer pressure, or communicate dissent, should not be taught about sexual risks – in short should know nothing about sexuality.

Even in the face of evidence that some children continue to have sex in spite of all moral and religious teachings imparted on them at home and at the mosque/ church; and that the risks in which they thus place themselves include not only sexually transmitted diseases and unwanted pregnancies, but even death through HIV/AIDS, unsafe abortion or maternal mortality during childbirth.

The myth is thus perpetuated that ignorance promotes chastity. Or perhaps those children who go on to have sex against the rules deserve to face the risks, including death. On the other side are those who assume that all children are having sex anyway, even though we tell them not to. It is even sometimes claimed that ‘children of today’ can’t do without sex. We might as well distribute condoms to them so that they can avoid the risks involved in intercourse.

The mutual error of both sides prevents policies that really might help the so many children who are caught in between. These issues are only mentioned because they are always present, lurking underneath every discussion about sparing children from the ongoing tragedy of child-marriage: which not only forces children to be adults, but also makes children to have children. The overall intent of this paper presentation has been to stimulate discussion and reflection and to demonstrate that under Shari’ah, it is not only possible, but also necessary for authorities implementing Islamic Shari’ah Law to fix minimum a minimum age appropriate to their contexts (without fearing that they are making ‘new Shari’ah’ and with the knowledge that such minimum age will not become frozen law, but will remain open to future changes that society may go through).

The overriding issue is to protect the weak and vulnerable, and ensure social justice within the framework of the Shari’ah. And we should always remember the victim and her lived experiences and realities. In arguing for an enforced minimum of 15 years (as do countries such as South Africa, Turkey and Kuwait[i]) instead of 18 years, I speak with the certain knowledge that rights frameworks perceived in local communities as an imposition or importation from external hegemonies too often lack acceptance and are problematic for implementation.

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