columnBy Ayisha Osori
Lagos — When Asabe left her husband for her father's house with her eighteen-month-old son, she did not realise that leaving her marriage meant she would have to give up her baby.
One late afternoon, a few days after she left, her mother-in-law came to visit. After the usual pleasantries, and as she held her grandson in her arms, Asabe's mother-in-law informed her that it was okay for her to leave her husband, but she could not take their son away. She walked out the door with the baby and it was many years before Asabe would see her son again.
In March, hidden away on the pages of a little known newspaper was a story of a Nigerian woman who died while struggling to retain physical possession of her four year old son. According to eyewitnesses, the child cried as both parents tugged at him, until the father won with one final push and walked away with the child and the woman's life. This couple had four children, two had died and the husband had possession of the third.
How many women in Nigeria have illegally lost possession of their children just because their marriages have ended either by them or for them? How many of these cases are ever reported? And in how many of these cases, even when civil and customary laws dictate that these children are better off with their mothers, does the legal system support this?
The Matrimonial Causes Act 1970 is applicable to all child custody cases including children borne out of civil, customary and Islamic marriages and provides that in all custody matters, 'the interests of the child shall be paramount'. This predominance of the child's right is also echoed in the Child Rights Act 2003, but how do we decide in a patriarchal society what the 'interest of the child' is, especially when that child is a minor? This becomes even harder when the Matrimonial Act is silent on what the interests of a child are, does not define the word 'minor' nor take into consideration the special treatment that minors need.
So who gets custody of the child where both parents are fit, willing and capable?
In Nigerian case law, we see the uncertainty in the judgments as judges struggle to decide what is in the best interest of a child subject to custody proceedings. For Justice Belgore, JSC (as he then was) in Odogwu v Odogwu, 'the welfare of the child is not in material provisions of the home such as food and air conditioners it is psychologically detrimental to his (the child) welfare and ultimate
happiness and psychological development if maternal care, is denied him'. In Williams v Williams, Learned Trial Judge Williams said 'the best arrangement for the welfare of any child is that he or she should be with his or her parents'. Neither of these analyses support a situation where minors are taken away from their mothers if they are not unfit - so why is it that in Nigeria, women lose custody of their infant or under aged children even when courts provide them with sole or joint custody? Most importantly, why in the 21st century is this data unavailable from our courts?
This is where Islamic jurisprudence is more detailed because the injunctions are so clear that the flagrant disregard for the law amongst Muslims and Sharia courts is testament to how heavily the culture of patriarchy is. However, and this is a big however, the clarity ends when the different schools of interpretation are taken into consideration. Under Maliki Islamic jurisprudence, which is what majority of Nigerian Muslims adhere to, children under the age of puberty stay with their mother. In fact, female children stay with their mother until the time of marriage while male children stay with their mothers until puberty. Going further in attesting to the importance of the mother in a child's life, even when a Muslim woman cannot be granted custody, seven variations of custody lie with her family before the father's family comes into the equation - again something that rarely happens.
Apart from our culture of supreme patriarchy, the other reasons why women lose possession of their children is because they are economically disempowered and lack access to information about their rights under either customary (Islamic) or civil law.
Unfortunately there is little under Igbo and Yoruba customary law that supports a mother's right to her children. Amongst the Yoruba the children belong with the father and custody will usually be granted to him. According to research, within a certain group of the Yoruba, the paternal grandmother names the children, setting the stage for 'ownership' of the children. Ironically, in a society where all the failings of a child are 'blamed' on the mother, a tacit admission of the importance of the role, our society insists on separating young children from their mothers.
With thirty seven 'Ministries of Women's Affairs' and countless Non Governmental Organisations all focused on promoting the welfare of women and children, information on child custody issues and where to go for help and advice is sadly lacking. Baobab, a women's human rights organisation, has some relevant information but this is hidden inside annual reports and there is no information on the website on the legal position on child custody. Collating custody cases and judgments is the ideal place for law, data and public policy to merge; with the judiciary and NGOs' feeding the information into the Ministries and the Ministries using this data to ensure the right policy is implemented.
As usual, the Nigerian legal and political system is not set up to protect the rights of women and children. We missed the opportunity to use the Child Rights Act to close the gaps in the Matrimonial Causes Act. Now women, not only in the judiciary and legal profession, must begin taking collective and individual responsibility for protecting one of the most fundamental rights of a child - the right to a mother's love.