Introduction
In Nigerian family law, few concepts have generated as much legal debate and social consequence as the question of legitimacy. At the heart of this discussion lies a child’s legal status, especially in matters relating to inheritance, parental responsibility, recognition, and protection. Historically, the distinction between children born in wedlock (legitimate) and those born outside of it (illegitimate) shaped not only the structure of family law but also the social standing and rights of affected children. However, the emergence of modern constitutionalism, child rights advocacy, and Nigeria’s ratification of international conventions have begun to shift the conversation from status-based discrimination to child-centred justice. Central to this transition is the 1999 Constitution of the Federal Republic of Nigeria, which, through its provisions on equality and non-discrimination, attempts to dismantle the historic disadvantages that illegitimate children faced. This article explores the concept of legitimacy in Nigeria through the lens of family law and constitutionalism. It analyses how the 1999 Constitution influences legal and social understandings of legitimacy, especially about the rights of children born outside of wedlock. It further evaluates the interplay between statutory law, customary practices, Islamic law, and constitutional guarantees.
Understanding Legitimacy in Legal Context
Legitimacy, in the context of family law, refers to the legal status of a child in relation to the marriage of their parents. A legitimate child is one born within a lawful marriage. Conversely, an illegitimate child, often referred to in legal parlance as a child born out of wedlock, is one whose parents were not legally married at the time of birth. Historically, this classification had significant implications. Under both common law and various indigenous Nigerian legal systems, legitimacy determined a child’s rights to inherit from the father, bear the father’s name and be acknowledged in his lineage, receive maintenance or parental support, and participate in customary rites and traditions. The legal rationale was rooted in the sanctity of marriage as the recognised institution for procreation and family structure. Anything outside of it was often treated as morally and legally suspect.
The Historical and Social Basis of Legitimacy in Nigeria
Legitimacy, while a legal classification, has deep social and cultural roots. In many Nigerian societies, especially under customary law, legitimacy was synonymous with identity, belonging, and inheritance rights. A legitimate child could trace their descent, lay claim to property, and be recognised in family councils. In contrast, an illegitimate child might be denied these privileges unless specifically recognized and acknowledged by the father or through subsequent marriage of the parents. Under colonial rule, British common law further entrenched the legitimacy doctrine. Colonial courts recognised children born out of wedlock as “bastards”, a term now widely viewed as derogatory and outdated. These children were generally excluded from intestate succession unless the father had explicitly made provision for them. Even post-independence Nigerian statutory laws, including the Matrimonial Causes Act and various State inheritance laws, reflected these colonial legacies, despite growing awareness of children’s rights.
The 1999 Constitution and the Shift in Legal Paradigm
The 1999 Constitution of the Federal Republic of Nigeria introduced a transformative provision that altered the trajectory of legitimacy discourse. Section 42 of the Constitution provides that “a citizen of Nigeria shall not be subjected to any form of discrimination by reason only of community, ethnic group, place of origin, sex, religion or political opinion”. More specifically, Section 42(2) addresses legitimacy directly by stating that “no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”.
This provision is unequivocal: being born out of wedlock shall not be a basis for discrimination or denial of rights. It effectively supersedes customary and statutory laws that impose disabilities on children based on legitimacy.
Nigerian courts have affirmed the supremacy of Section 42 in several landmark cases. In Ukeje v. Ukeje, the Supreme Court held that denying inheritance rights to children born out of wedlock under Igbo customary law was discriminatory and unconstitutional. Similarly, in Salubi v. Nwariaku, the Court of Appeal reinforced that all children, regardless of birth status, are equal before the law and must be treated as such. The court held that:
Since the coming into force of the 1979 constitution, the term illegitimate children used to describe children born out of wedlock has been rendered illegal and unconstitutional…
These rulings reflect a growing judicial trend toward harmonising customary law with constitutional guarantees.
Customary Law and the Persistence of Discrimination
Despite the constitutional and judicial shifts, customary law in many Nigerian communities still discriminates against children born out of wedlock. Such laws are often justified on the basis of tradition, religious beliefs, or community cohesion. Denial of inheritance rights, refusal to perform naming or funeral rites, social ostracism of mothers and their children, and requirement of paternal acknowledgement before legitimacy is conferred are some of the persisting practices. Even when challenged, many customary laws are enforced in family and community contexts where constitutional provisions are either unknown or disregarded. This legal pluralism creates tension between modern rights-based law and indigenous legal orders.
Islamic Law and Legitimacy
In Northern Nigeria, where Islamic law operates under the Sharia legal system, legitimacy is also a key determinant of a child’s rights. Under Islamic law, only children born within a valid marriage are considered legitimate. Illegitimate children, known as walad al-zina, cannot inherit from the biological father. The duty of maintenance falls primarily on the mother unless paternity is accepted. However, Islamic law also places a high premium on justice and compassion. There is growing discourse among progressive Islamic scholars on ways to reinterpret inheritance and legitimacy rules in light of broader Quranic principles of fairness and mercy.
Statutory Provisions and Attempts at Harmonization
Beyond the Constitution, other statutes also impact the issue of legitimacy. The Matrimonial Causes Act provides for legitimation by subsequent marriage. The Child’s Rights Act, though not adopted by all states, upholds the dignity and non-discrimination of all children. The Administration of Estates Law in some states has also been reformed to allow children born out of wedlock to inherit equally. However, inconsistencies remain, especially across states that have not domesticated the Child’s Rights Act. The lack of uniform application undermines the constitutional objective of equality.
,Legal Remedies and Enforcement Challenges
Children or their guardians may challenge discriminatory practices through constitutional actions under the Fundamental Rights (Enforcement Procedure) Rules, applications in family court for declaration of paternity, or claims for inheritance under intestacy or will. Despite these avenues, enforcement challenges include high legal costs, limited awareness, delays in the judicial process, and cultural pressures discouraging litigation. Legal aid and public interest litigation remain underutilised tools in combating discrimination on legitimacy grounds.
Toward a Unified and Rights-Based Framework
To bridge the gap between law and practice, several steps must be taken. National campaigns should sensitise communities on the constitutional rights of children. Law reform commissions should recommend uniform laws across states. Customary law reforms must engage traditional rulers in reviewing discriminatory customs. Judicial activism should be encouraged to uphold Section 42 in diverse contexts. Ultimately, legitimacy should be rooted not in the marital status of parents but in the inherent dignity of every child.
Conclusion
Legitimacy in Nigerian family law has undergone significant evolution, especially under the influence of the 1999 Constitution. While tradition, religion, and statutory inconsistencies persist, the legal trajectory is increasingly clear: children, regardless of the circumstances of their birth, are entitled to equal rights, dignity, and protection. Section 42 of the Constitution offers a robust framework for challenging discriminatory practices. However, realisation of this promise depends on widespread legal literacy, judicial courage, and societal willingness to confront deep-seated prejudices. No Nigerian child should be denied their rightful place in society due to factors beyond their control. Legitimacy must now be understood not as a status granted by parental conduct but as a constitutional right rooted in the principle of equality.
Written by:
SALAWA ABIKE SULE-AZEEZ
Legal Practitioner
08104746175, 09051587201
Source: BarristerNG
