bigamy in nigeria

579 Pages·2016·1.67 MB·English

BIGAMY IN NIGERIA

CHAPTER ONE – INTRODUCTION

Bigamy in Africa (generally) is a reality and not a myth. Many a
times we found out that most people in marriage advertently or
inadvertently contract a bigamous marriage. Surprisingly, bigamy in
most laws in Africa is an act of criminal offence. In Nigeria in
particular, various national Laws made it a criminal offence
punishable with various jail terms. Yet the practice persists, in that
majority of those in the so-called polygamous marriages have
committed the crime of bigamy but the long arm of the law never
catches up with them, except for one man in the history of existence of
the state entity called Nigeria.
The act of bigamy has been given various definitions, but I take
it to mean the act of legally marrying more than one wife at a time or
the act of legally marrying more than one husband at a time.
Therefore, it is an offence that can be committed by both spouses to a
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marriage. However, exclusively men commit this act of bigamy in
Nigeria and indeed other parts of Africa. There have been no cases
recorded and unrecorded of incidents of bigamy involving women as
culprits. The act of committing bigamy in Africa has been solely an
all-male affair.
The Chambers Dictionary defines bigamy1 as “marriage to two
wives or two husbands at once” and in bracket, it stated that it is a
crime in some countries. There are various reasons why the law on
bigamy has remained largely ineffective. We will examine all these in
this book. The position of our national laws will also be looked into
and remedies will be proffered on how to make this law effective and
functional. This book is all about bigamy and how to rid our societies
of this social malaise.
Our world has been derogatively called a third world because of
some of the things that obtain in our society and the rampant
occurrence of bigamy can be identified as one of the practices that
hurls a pail of disgust on us. Making our societies more conducive
would entail the complete eradication of some of our traditional
practices that are harmful and unjust to a section or a group of our
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society. This will definitely make our society civil and amenable to
the needs of individual members of each society. The problem
besetting us right here in Africa is indeed multi-facet and grappling
with each of these problems often results to volatile issues being
touched off. This rampant occurrence of the offence of bigamy comes
with a religious and cultural undertone, this account for its state of
inertia and it has turned it into a moribund law.
Now we have to make a distinction between bigamy and
polygamy. We must acknowledge here that due to cultural and
religious leaning, polygamy has become an everyday affair in Africa;
people now view it as our normal way of life without blinking an
eyelid. This has been carried over to bigamy because people do not
know where polygamy stops and where bigamy starts and as a result,
all is muddled up.
Polygamy is divided into two, namely polygyny and polyandry.
Unlike bigamy which involves the practice of both human sexes.
Polygyny is an act whereby a man marries simultaneously more than
one wife. Polyandry in the same vein is an act whereby a woman
marries simultaneously more than one husband. Unlike in Statutory
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Law, in Islamic and Cultural Laws, polygyny is permissible and the
practice thrives in those spheres. Polyandry is not allowed by these
laws and like bigamy to civil law, it is abominable in the sight of these
laws. From the above short definition of polygamy, it is quite evident
that the type of polygamy allowed by Islamic and Cultural Laws is the
one that is favourable to men and unjust to women. The aspect of
polygamy that is favourable to women and unjust to men is decreed an
abomination and is thrown into the gutter.
Chambers Dictionary also defines2 polygamy as “the state or
custom of having more than one wife or husband at the same time”.
Going by this definition of Chambers Dictionary, there is no
difference between polygamy and bigamy, it is all an act of marrying
more than one wife or husband simultaneously. In Britain and most
Western world, a marriage contracted by two consenting adults
without any impediment as to affinity or other impediments to a valid
marriage, is deemed legally binding. However, in Nigeria, the case is
not the same; there are three types of marriages obtainable, the Islamic
marriage, cultural marriage and statutory marriage. All these
marriages are legally binding to whoever contracts it.
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However, Islamic law and customary law allow polygamy while
statutory law prohibits polygamy and sanctioned it with the offence of
bigamy. Therefore, for one to commit the offence of bigamy in
Nigeria, such a person must have married twice simultaneously under
statutory law or must have married simultaneously once under Islamic
and Customary law and once under Statutory law. This is where the
issue of legality comes in, in any definition of bigamy. A man can
marry as many as four wives under Islamic law and has not committed
any act of bigamy. Four wives is the limit placed by Islamic laws on
the number of wives a man can marry. However, there is no sanction
that awaits anybody who violates this limit and marries as many as
twenty or more. It is a religious law whose sanction awaits any
violator in the life after death. Also, in Customary law, there is no
limit placed on the number of wives a man can have, so under
Customary law, a man can marry as many as forty wives without
having committed any crime known as bigamy. Therefore, the need
arises to distinguish such Customary and Islamic marriages by adding
the word legal in the definition of bigamy. Besides, customary and
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Islamic marriages are not registered, therefore, there is no written or
documented evidence to show that such marriages ever occurred.
There is no doubt that such chaotic state of our marriage laws
has contributed immensely towards the ineffectiveness of the law of
bigamy in Nigeria. This is what we are going to tackle adequately in
this book, but we must point out here, what we all stand to gain in
Nigeria if the law of bigamy is made effective.

Why The Law Of Bigamy Must Be Made Effective

1. A Chaos Free Law Will Be Made
Conflict of laws in Nigeria is a serious nightmare
bedevilling the state of our marriage laws in Nigeria. British
colonial rule bequeathed us with three distinctive systems of
laws and jurisprudence in the sphere of marriage and Law of
Personal Status. Marriages in Nigeria are governed by three
laws.
The first type of marriage contracted in Nigeria is marriage
under the Marriage Act otherwise known as General or Statutory
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Law; it also includes the Case Law. This form of marriage is
purely a monogamous affair and it punishes any violator with
prescribed jail terms. It is within the exclusive legislative
competence of the Federal Government. Its dissolution is
governed by the Matrimonial Causes Act of 1970, which is also
a federal enactment. However, it is not all aspects of this
marriage that is governed by federal enactments, such other
properties of marriage such as legitimacy and legitimation, effect
of marriage on proprietary rights, succession both testate and
intestate are governed by state enactments.
The second form of marriage contracted in Nigeria is the
customary marriage, which is governed by Customary Law. It is
within the exclusive legislative competence of the state
governments. Customary marriages are polygamous in nature as
there is no limit to the number of wives a man can marry.
Finally, the third form of marriage obtainable in Nigeria is
the Islamic marriage. This type of marriage is governed by
Islamic law, which operates in Northern states in Nigeria.
Islamic law like customary law is within the exclusive legislative
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competence of the states. However, Islamic law placed a
limitation of four wives on the number of wives a man can
marry simultaneously.
Conflicts arises certainly, in application of these laws to
our marriages, but under the received conflict of law rules, a
marriage is valid only when it is formally valid under the law of
the place of celebration and must comply as to essentials, with
the law of the ante nuptial domiciles of each of the spouses3.
However, one must point out that the essentials of valid
marriage differ markedly under the various systems of law. This
has brought a state of chaos to marriage laws in Nigeria. Apart
from this marked differences in the application of marriage laws,
there also arise some problems in the area of administration.
Conflicts of jurisdiction arise even though the jurisdiction of
specific courts for each of our marriage laws are clearly spelt out
but all the same problems still arise out of jurisdiction. One must
also note here that some incidents of statutory marriage are
governed by state enactments, which also contribute to the
conflict of law scenario.
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We must note here that the ineffective state of the law of
bigamy stems from the fact that there exist side by side with
statutory law, Islamic law that allows polygamy up to four wives
and a customary law that allows polygamy to the fullest. This
have impeded the enforcement of the law of bigamy single-
mindedly as stated by Julius Nyerere former President of
Tanzania4,
“We have always accepted that Moslems can have four
wives and tribalists can have ten or twenty. But if I should
take a second wife, I could be prosecuted. Yet the Police
Constable who arrested me might be a polygamist as well
as the Magistrate who sentenced me to four years of hard
labour. This is ridiculous”.

Indeed, it is ridiculous for such a scenario to enact in
Africa but a strict enforcement of the law of bigamy will also
include a blanket ban on polygamy in the country. That is the
only way it could be made effective and strictly binding. And
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once this is done, it will eliminate completely the chaos that
pervades our marriage laws and our marriages.

2. It Will Make Our Society Civil
There is no doubt today that our society cannot be said to
have attained a high level of civilization because of certain
practices that obtain within it. I know a lot of people in Nigeria
will disagree with me, but let us face the fact, an act whereby a
man is married to two or more women simultaneously as wives
cannot be described pointedly as a civilized act. It has all the
trappings of an uncivilized acts like other practices which our
society has come to accept as being uncivilized e.g. slave trade.
Just like slave trading is unjust and inhuman to the slaves, so is
polygamy unjust and inhuman to women. It degrades their status
in life and it relegates them to the background as second-class
citizens. To be seen and not to be heard and sometimes not even
to be seen as it obtains in Islamic law.
A civilized society as I understand it is one where there is
justice, equity, fairness, liberty and freedom. And these
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