Critical Examination Of The Concept Of Illegitimacy Under Nigerian Laws

Josephine Nkeonye Egemonu, Senior Lecturer, Nigerian Law School, Yenagoa Campus, Bayelsa State, Nigeria

ABSTRACT

The law recognizes the difference between a legitimate child and an illegitimate child, especially when issues such as inheritance and succession are involved. The reason for this distinction probably, may be to discourage immorality and promiscuity and promote high standard of moral behavior among the people. A stronger reason may be the need for families to protect and preserve their family unit and blood line from being infiltrated by “mixed blood”. Whatever may be the reason, the law differs from jurisdiction to jurisdiction. In the Nigerian legal system, two distinct types of marriage are recognized and these are, monogamous marriage[1] and polygamous marriage.[2] Whilst monogamous marriage permits the marriage of one man to one wife, polygamous marriage, which is either customary or Islamic marriage, allows a man to marry more than one wife at a time. Consequently, for a child to be considered legitimate, he must be a product of a validly contracted marriage. However, children “born without marriage can also be regarded as legitimate children for certain purposes, if paternity has been acknowledged by the putative father”.[3] This work critically examines the concept of illegitimacy under Nigerian laws, statutory and judicial authorities and the attitude of Nigerian courts. The article used available Nigerian sources, such as statutes, decided cases as well as international treaties adopted by Nigeria, found both offline and online. It concluded that the 1999 Constitution of the Federal Republic of Nigeria in particular and the international treaties frown against any form of discrimination; that though section 42(2) of the Constitution did not expressly state that the concept of illegitimacy has been abolished, the wordings of the section are clear and unambiguous and ought to be given its ordinary meaning. Further, that the section has made all forms of discrimination, including illegitimacy, unconstitutional.

Keywords: Child; Illegitimacy; Legitimacy; Legitimation.

[1] Referred to as ‘statutory marriage’ or ‘court marriage’. [2] This may be traditional marriage or Islamic marriage [3] Lawal v Younan (1961) NSCC 130.