PROJECT TOPIC- ILLEGITIMACY AND RIGHT TO FREEDOM FROM DISCRIMINATION IN NIGERIA
This long essay is concerned with the concept of illegitimacy, which is an important concept as t determines the status of a child in relation to the society. While a legitimate child is conferred with the rights of a legitimate child which includes right to maintenance, succession among others, an illegitimate child is denied these rights by virtue of the fact that he is born illegitimate or outside wedlock and he remains so until legitimated either by subsequent marriage of his parents or by acknowledgement of paternity by the father, the absence of which the child would still be regarded as an illegitimate child with the resulting effect of discrimination from the society. This research project seeks to examine the family law reform relating to legitimacy and legitimation of illegitimate children. The aim of this research work is on exposing the unnecessary social discrimination faced by illegitimate children in the society and stipulating ways and means by which their sufferings and pains can be alleviated and also on how to ensure lack of discrimination in local and peculiar circumstances. The doctrinal approach was adopted in carrying out this research work. This work is therefore a critical analysis of the purport of Section 42(2) of the 1999 constitution as amended on the eradication of the stigma associated with an illegitimate child in Nigeria. Among other things, this research work employed the concept of legitimation and right to freedom from discrimination in giving a voice to illegitimate children in relation to maintenance and succession to the intestate estate of their natural parents. This work recommends that discrimination against illegitimate children should be criminalized in order to be totally eradicated along with the social stigma attached thereon. This paper concludes that Section 42(2) of the 1999 Constitution is a veritable tool for eradicating or alleviating the discrimination faced by illegitimate children and therefore steps should be taken to ensure that such children do not suffer by reason of the circumstances of their birth.
1.1 Background of the Study
The question of illegitimacy, legitimacy and legitimation are principally connected with status. It is therefore important to determine the status of a child at any given moment as it has far reaching legal consequences. A child may be born legitimate or acquire that status by subsequent legitimation. A legitimate child is one regarded by law as a child born with full rights and it confers on the child certain rights against the man the law regards as his father and generally against the society.
An illegitimate child on the other hand is seen or regarded as a bastard and the beggars belonging to the motley crowd of disreputable social types which the society has generally resented but endured. Children born or conceived when there is a valid and subsisting marriage between their parents are referred to as legitimate children while those of unmarried parents are “fillis nullus or fillius populi” meaning a bastard who has no legal relationship, neither is he recognized with the father nor with any other relative, he is therefore deprived of the right which legitimate children possess. Illegitimacy finds it’s origin from biblical times. Deuteronomy chapter 23 v 2provides;
“One of illegitimate birth shall not enter the assembly of the lord, even to the tenth generation, none of his descendants shall enter the assembly of the lord” In Genesis 49 v 8-12, God promised Judah that the scepter will not depart from him. Judah then committed adultery with another woman and Perez was born and because of that single act, ten generations passed before the promise was fulfilled. Islam also frowns at illegitimacy, they call them (adopted sons) by the names of their fathers that is more just with Allah.
A legitimate marriage is one contracted according to the rules guiding its validity which includes customary marriages. In strict customary law, marriages in the concept of paternity, marriage and legitimacy have no necessary connection unlike under the common law. For instance, a child may be regarded as legitimate even though the natural parents are not married to each other and the person with respect to whom the child is legitimate is not the natural father.
In Igbo custom, a man who has no male children may persuade one of his daughters to stay behind and not marry for the purpose of bearing him a son who will be the male successor to her father and thereby “save” the lineage from threatened extinction. Thus, any child she bears while remaining with her parents is considered the child of her father at birth. Any male child so produced has full right of succession to the grandfather’s title. This custom is known as “idegbe”. Also customs like “Akoku” of the Oka people of Ondo State exist.
There is the practice of “supo” in the Yoruba speaking areas where the youngest brother of the widow’s deceased husband can inherit her so as to breed children for the late husband. This custom is referred to as widow’s inheritance and such children are regarded as legitimate children even though the parents are not formally married. That is not to say that illegitimacy is not recognized in Yoruba customary law as they are referred to as “omo-ale” meaning a child of an adulterous woman or an unmarried woman (a bastard), a child who has not been acknowledged by his father and generally has no succession right in Yoruba customary law.
Under Igbo customary, a child of an unmarried woman, (the term unmarried include women whose marriages have been legally dissolved as submitted by Dr. Obi is regarded as belonging to his maternal grandfather, meaning that the connection between him and his maternal grandfather accord him the right to succession with his other grandfather’s children.Although there is the status of illegitimacy under customary law, the willingness of the grandfather or the natural father to accept the child helps to remove the burden placed on that status.
As we have seen so far, illegitimacy have both religious and cultural undertone with the attendant discrimination meted out on illegitimate children which has not in any way solved the problem. Attempts therefore have been made to finding solutions to the eradication of the ill-treatment meted out on illegitimate children. Our grundnorm, particularly in Section 42(2) 1999 constitution forbids the subjection of any person to “disability”, “deprivation” or any form of discrimination by reason of circumstances of his birth.
This age-long principle of law in our jurisprudence has been called to question. Thus there is an overlap of Constitutional Law into Family Law. This is the main subject matter which this long essay proposes to address. An act of discrimination is an abuse of violation of one’s Constitutional rights to freedom from discrimination, describing it as a dismay, a gross abuse of human right and indeed a flagrant violation of the Constitution.
PROJECT TOPIC- ILLEGITIMACY AND RIGHT TO FREEDOM FROM DISCRIMINATION IN NIGERIA
1.2 Statement of the Problem
Illegitimacy makes a child to bear the status of being illegitimate. Therefore, legitimation is the process of changing such illegitimate status to a legitimate one. To curb this downside, the Constitution in Section 42(2) has frowned at discrimination of any citizen of Nigeria in relation to any circumstance of their birth which the concept of illegitimacy encourages. This research project seeks to examine the family law reform relating to legitimacy and legitimation of illegitimate children.
1.3 Research Questions
This study will therefore examine the following questions
- Whether an illegitimate child can succeed his natural father in regards to inheritance.
- If an illegitimate child can be further legitimated and how.
- Has the provision of Section 42(2) of the Constitution successfully eradicated the stigma and injury suffered by illegitimate children?
1.4 Aims and Objectives of the Study
This study is aimed at exposing the unnecessary social discrimination faced by illegitimate children in the society, the ways and means by which their sufferings and pains can be alleviated and how to enforce this nondiscrimination to apply to local and peculiar circumstances in order to make it effective and workable so as not to reduce such innocent souls to paying for the sins of their parents.
1.5 Scope of Study
It will be limited to family law in aspect of illegitimacy, in respect to legitimacy, legitimation and right to freedom from discrimination as adumbrated under Section 42(2) of the 1999 Constitution of Nigeria as (amended). This study will also be linked to our principal religions in Nigeria, which is Christianity and Islam. It will also compare our various customary indigenous laws and the English position.
1.6 Limitation of the Study
Lack of finance: is one of the major limitations encountered in the course of this research project.
Time constraint: there was limited time for the writing and submission of this thesis and as such limited the research work.
1.7 Significance of the Study
Illegitimacy is a widely used word today and the young ones may not even recognize it as an insult. The term designated unmarried women and their unlucky children. Illegitimate children are sometimes referred to as “bastards”. As a label, illegitimacy described their collective status as outcasts. To be illegitimate was to be shamed and shunned. Those who lived under illegitimacy were endangered, in U.S Bureau for example and in the case of African-American children, perceptions of cultural difference in regard to illegitimacy were compounded by patterns of legal segregation that impacted child welfare. Thus, in Nigeria, due to it’s diverse of ethnic background, illegitimate children are being treated differently in these locality and the essence of this project is on the efficacy of Section 42(2) of the constitution to the eradication of the illegitimacy stigma.
1.8 Research Methodology
This will be based on documentary source of information from textbooks, dictionaries, articles, encyclopedias, law journals, periodicals and opinion of writers which are the secondary sources of data. The primary sources include the holy bible, Quran, Constitution and other relevant sources of information.
1.9 Literature Review
Quite a handful of available literature was reviewed in this work in order to properly understand and significance, principal among such is the 1999 Constitution as amended which in Section 42(2) provides that “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
Law in strict sense says there is no necessary connection between the concept of paternity, marriage and legitimacy as a child can be regarded as legitimate even though the natural parents are not married.
Cretney S.M states that the concept of legitimacy and legitimation borders on status and it is a concept whereby a couple’s child is entitled to full recognition as a family.
Cheshire and North in their book, sees legitimacy as the status acquired by a person who is born in lawful wedlock.
The Black’s Law Dictionary said illegitimacy is a condition before the law, or the social status of a child born out of wedlock; condition of one whose parents were not intermarried at the time of his or her birth.
Dr. Obi was of the view after carrying out his studies that a child born of an unmarried woman is illegitimate at birth. Under the English common law, an illegitimate child was described as a bastard.
According to Nwogugu, the state of illegitimacy exists under customary law but the traditional love of children and the spontaneous willingness of the grandfather or the putative father to accept the child removes that status. He opined also that the status of illegitimacy used to be the biggest discrimination suffered by a child born out of lawful wedlock.
Davis Kis of the view that the legitimate child is one born with full rights and confers certain rights against the man whom the law regards as his father but the illegitimate child is resented by both his family and the society at large.
Curzonplaces emphasis on the fact that legitimacy is the condition of belonging to a class in the society, the members of which are regarded as having been begotten in lawful matrimony by the man whom the law regards as their father which negates the position under Islamic law, where it provides that only the natural father takes possession of the legal status in relation to a child.
According to Kasumulegitimacy is the status acquired by a person who is born in lawful wedlock. The children of such marriage or wedlock will be legitimate at birth.
It is important to establish that lawful wedlock in Nigeria may either be by customary, Islamic or statutory law marriage and the operative effect of these differs from one legal system to another. For instance, in the monogamy legal system, it is irrelevant if at the date of birth, the marriage is dissolved, the parents must be married at the time of conception while in some customary legal system (Yoruba), the child might be legitimated without the parents being married if the natural father acknowledges the paternity of the child.
To Sagay the concept of legitimacy and legitimation are important concepts of law because of the social stigma attached or associated with illegitimacy in the western and Christian oriented class in the society.
Ambali M.A said that legitimacy is an important link between father and son and it is a condition precedent for succession. Therefore, a child of an illicit relationship will not be allowed to inherit the estate of the partner of his or her mother in the act of Zina; that is fornication or adultery. This position of sharia is far from what operates in our contemporary society and cannot pass as a general operative law under our Nigerian statutes or law. Thus Section 42(2) of the 1999 Constitution provides for the eradication of illegitimacy in Nigeria.
1.10 Chapter Analysis
This essay deals with illegitimacy and the right to freedom from discrimination in Nigeria.
Chapter one gives a general introduction of the work containing a background review of the research work, stating its objectives, scope and significance. A literature review of the concept of illegitimacy and legitimacy.