MzAgams

Recently a number of custody issues have made the news with the father of the children in question expressing and unilaterally exercising ‘ownership’ of the children to the exclusion of their mother. Precious Chikwendu and FFK remain the most visible Nigerian couple in a custody dispute. More recently the case of Kezia Irek and Raymond Uwak was reported on Twitter and has been making headlines. I like to bring up the case of Obansanjo from the 1970’s for context. I’ve written about Obasanjo here and here. Note that the men are all politicians. That’s probably why their stories have made the headlines. The fact is hundreds of thousands of Nigerian women are forcibly separated from their children every year. Usually under the guise of customary laws that purport to grant a father the absolute right to the custody of his legitimate or legitimated children. 

Customary Law is still applicable within the Nigerian legal system as a law that was in force before colonisation and the reception of English laws in 1863. The application of English Law did not abrogated customary law in Nigeria. Both exist side by side as laws applicable in Nigeria. However, customary law must pass the repugnancy test to be applicable. If a customary law is repugnant to natural justice, equity and good conscience, incompatible with statutory law or contrary to public policy it should be void. I will return to these validity tests later.

Professor Chinweizu argues in ‘Anatomy of Female Power’ that the bride price, by what ever name called, paid to a brides family during her wedding secures for her husband rights to the fruit of her womb. He literally called the payment ‘womb rent.’ In precolonial south east Nigeria where he wrote about, children/offsrping were not defined or considered as autonomous human beings. The very presence of slavery made human beings chattel that could be bought and sold. And children were expected to provide labour to their father as soon as they were strong enough. The concept of children as autonomous human beings with rights did not exist in most traditional African schools of thought. People belonged to a tribal community or lineage and long after they attained what is considered ‘adulthood’ they were still subject to the authority of their father and their lineage.

As a matter of fact AjaNwachuku, contends in ‘A Legal Analysis of the Nebulous Concept of Childhood in Nigeria’ that in parts of the South Eastern Nigeria, the first male child of the family remains ‘a child’ under customary law until the death of his father. According to him ‘Childhood under the different customary laws in Nigeria is determined by circumstance rather than age.’ His assertion is supported by a unique phenomena among Nigeria adults who and their continued obedience to their parents. An unfortunate result of this concept of ‘ownership’ of offspring no matter their age is physical abuse as punishment. One of my clients was a medical doctor in his late 20’s that complained of his father still flogging him with a belt while he lived in his father’s house. One need only imagine the abuse he must have experienced when he was little.

Children within the various customary law systems in Nigeria were not ‘individuals.’ The individualism of the western social systems was completely alien. Everyone ‘belonged’ somewhere, to someone and that belonging was literal in the sense of ‘ownership.’ Western capitalism dismantled the extended family system that was the locus of authority. Capital and its agents, industry and the government, have to be the final authority for capitalism to thrive. I will not comment extensively on this development. Individualism dominates the modern world and the global economy despite the brave efforts of African scholars to retain and revive African collectivist ideologies such was Ubuntu. Suffice it to say that this is the hangover that child custody in Nigeria continues to suffer from.

Regardless, the government is responsible for ensuring child welfare within the state and within the family. Most states of the federation have legislation that regulates the application of customary law and most of these legislation provide that in matters regarding custody and guardianship the best interest of the child must be paramount. In addition the Child Rights Act was passed into federal law in 2003 and since then has been domesticated in 24 states of the republic. In the states where the Act has been domesticated the legal definition of child is anyone that is below the age of 18 and custody and guardianship can only be decided by a court of competent jurisdiction based on the best interest of the child. In other words, in states where the Act is operative a father’s customary rights over his offspring will no longer be absolute. This isn’t as radical as it may appear. The Supreme Court had earlier ruled that –

“The only proper manner in which the custody of a child under Customary Law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child. Like the Customary Court, the High Court failed to do so. Its decision cannot, therefore, be said not to have caused a miscarriage of justice. Furthermore, the Court of Appeal made the same mistake since it agreed with the decision of the Customary Court which has been shown to have been a misdirection. It too based its decision merely on the request made by the respondent in the Customary Court to have custody of the children and not on evidence adduced to determine the interest and welfare of the children” 

Okwueze v. Okwueze (1989) 3 NWLR (Pt.109)

Sadly, neither the law nor precedent has succeeded in stopping people like FFK, Uwak and the many men whose names we may never know from literally ripping suckling babes from the arms of nursing mothers in the name of customary child ownership. And it’s not only men perpetuating this wickedness. In one of my cases it was the mother in law that took a nursing baby from the mother. In my personal case a sister in law referred to me as being ‘merely the biological mother’ as if I was a surrogate or something.

In contract law I often tell clients that a contract is only as good as the money you set aside to enforce in court should that become necessary. Likewise, despite what the law and the courts say about custody the vast majority of mothers in Nigeria cannot afford to go to court for a judicial determination of their rights. Even when courts grant mothers custody it may be impossible to enforce the judgement as happened in Precious Chikwendu’s case. Several courts had ruled that FFK should return the children to her custody considering their tender age. At the time she left FFK her twins were less than a year old. When a parent refuses to obey a court order the appropriate action is to issue a bench warrant for their arrest and an order for them to produce the children in court. Sadly, political power in Nigeria prefers to ignore the rule of law. I wrote about it here.

It’s not a pretty picture. It would appear that mothers have little recourse in law to enforce their custodial rights unless their co-parent is cooperative. So what can they do instead? That’s a hard question to answer if you don’t have the resources to go to court.

Under customary law when a women divorced her husband, which involves the return of the bride price he paid, she was free to marry again. In villages and small towns all over Nigeria there are numerous children whose mothers left them when they divorced their fathers. I personally know adults who did not have a relationship with their mothers when they were young. A lady on Facebook boasted about leaving her three sons with their father when she divorced him. She remarried. One of my friends happily parented his grandchild after the child’s mother left his son. One of my great aunts, my grand fathers contemporary married and divorced four times, leaving the children she had with each man. When she was old and could no longer go to the farm or the market she went to live with the most successful of her numerous children. When I divorced my first husband the elderly women in my paternal home told me to leave our children with him and make a new family somewhere else. It’s the way it was, judging them isn’t appropriate, they were from a different era.

Sometimes leaving the children with an ex-husband may be the best strategy. Being a single mother is hard financially and emotionally. Even if a court gives you maintenance for the children it is rarely enough and it is rarely enforced. Just the past day a Nigerian actor proudly declared on social media that he gives his ex-wife NGN70,000 a month to care for 4 children. Single-mothers are more likely to be poor and more than half of all women that divorce fall into poverty.

While my advice to all women is to be financially independent whether they are married for not, a woman considering a divorce must make sure that she is financially independent, if possible before filing divorce process. The court must consider the financial status of which ever parent is asking for custody. Sometimes leaving the children till you are financially independent is the best thing to do. One of my early clients was struggling to take care of her baby while her baby daddy and his family insisted that they will only support the child if they had custody. I convinced her to let them take the child and promised to help her get on her feet financially. I also made sure I negotiated for her to have visitation. When she became rich and moved to the U.K. her baby daddy literally begged her to take the child, just like I told her he eventually would. And sometimes leaving children of tender age with the father can have the opposite effect when he realises just how much work it is.

Each situation is unique. Don’t always listen to the lawyer that promises to get you custody. Consider your situation realistically and work from there. Chikwendu has accepted some sort of compromise in order to have access to her children. Kezia will probably have to do the same. No matter how much you resent your spouse your children still have a right to a relationship with both their parents. That’s right. It’s a child’s right to have a relationship with both their parents, not the parents right to have access to a child. That’s why the courts, customary and statutory courts, have to consider the best interests of the child when determining custody.

Now back to the validity tests of customary law. Sharia law was considered customary law in Nigeria until some states made it state law removing it from the ambit of the repugnancy and other validity tests that customary law is normally subjected to. In other states it is still customary law. All of the 11 states yet to domesticate the Child Rights Act are northern Sharia states. One of the biggest bones of contention in those states is the definition of what is a ‘child.’ The definition particularly affects the legal age of marriage and the age of voting. A girl child that is married automatically acquires the right to vote for instance whereas normally she would not be able to vote. Child marriages are repugnant by virtue of being unwholesome and inhuman, a position fully supported by science.

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