Abstract
Like any other society be it developed or developing, ancient or new, the African society consists of children, adults and elder persons. Each category of persons has different rights, freedoms and obligations under national and international law. In the African cultural context the child occupies a significant position. There is no doubt that the child is a biological product of man and woman) but at the same time he is considered to be the gift of God. The adoption of the United Nations Convention on the Rights of the Child in 1989[1] represented a significant milestone in the slow but perceptible movement towards the entrenchment of clearly definable rights for children. The articulation of these rights in a multilateral convention served to highlight basic but universally acceptable standards, which all signatories became obliged to incorporate in their national laws and policies. These standards extend to the protection of the child’s life, the promotion of health and educational opportunities and the prevention of exploitation, physical and sexual abuse.
They emphasised that every child is entitled to opportunities and facilities which guarantee healthy and normal development. In response to this clarion call by the United Nations, the African continent adopted the Charter on the Rights and Welfare of the African Child in the Summit of the Heads of State of the Organisation of African Unity[2] in 1990. The Charter stresses particularly the preservation and strengthening of positive African values which are complementary to the development of the African child. In addition, it seeks to discourage those values which are harmful to the health and status of children. The purpose of this study is to critically examine the various laws for the protection of the child with particular attention to how these laws are enacted and practiced under Nigeria laws in line with international practices, the paper will end with some concluding remarks.
1.0 Introduction
The phenomenon of childhood is not unique to humans. Most other forms of life also embody a process where infants over time become adult members of the species. However, human infants are unique, at least among the primates, in the extent of their vulnerability and dependence on an extended period of socialization and learning in order to achieve maturity. Thus, childhood for humans is a comparatively long period during which young people gradually acquire the competencies and capacities of adulthood. Because children are perceived to be vulnerable and dependent upon more competent adults, they are viewed as a distinct class for legal purposes. From biblical time to the present, the law has imposed disabilities upon, and provided special protections for children.
Like any other society, as stated earlier, be it developed or developing, ancient or new, the African society consists of children and adults[3]. Each category of persons has different rights, freedoms and obligations under national and international law[4]. The overall importance and concern for children all over the world could be said to have gotten a remote chequered history. Not only have children constituted a central focus in the social-cultural attainment of every nation, many world bodies, both international and non governmental organizations, have also established legal, administrative and institutional structures for effective recognition, protection and survival of children. Today, the issue of children’s existence, welfare, education, value, protection and survival are cardinal in the affairs of nations. Significance is now seriously attached to children so much that they constitute a unique item on the agenda of relevant bodies and organizations.[5]
In the African cultural context the child occupies a significant position. There is no doubt that the child is a biological product of man and woman but at the same time, he is considered to be the gift of God. The adoption of the United Nations Convention on the Rights of the Child in 1989 represented a significant milestone in the slow but perceptible movement towards the entrenchment of clearly definable rights for children. Significantly, the United Nation Convention on the Rights of the Child, the African Charter on the Welfare of the Child and the Child Rights Act[6], succinctly express the predicaments of the African child, his unique place in society as well as his needs. The articulation of these rights in a multilateral convention served to highlight basic but universally acceptable standards, which all signatories became obliged to incorporate in their national laws and policies. These standards extend to the protection of the child’s life, the promotion of health and educational opportunities and the prevention of exploitation, physical and sexual abuse. They emphasize that every child is entitled to opportunities and facilities which guarantee healthy and normal development. In response to this clarion call by the United Nations, the African Continent adopted the Charter on the Rights and Welfare of the African Child in the Summit of the Heads of State of the Organisation of African Unity[7] in 1990. The Charter stresses particularly the preservation and strengthening of positive African values which are complementary to the development of the African child. In addition, it seeks to discourage those values which are harmful to the health and status of children. This paper examines critically the right of an African child, with particular attention to the provisions of the laws in Nigeria. The paper further examines the right of a child under the UN and the African Charter; The Right of a child under Nigerian Law, the Juvenile justice system, the provision of the law relating to children under civil laws, as well as how the Nigerian laws has responded and addressed the needs and predicaments of the child by municipal laws in accordance with international law.
2.0 Who is a Child?
The ordinary meaning of a child is that he is a natural person, who is an offspring of another either by birth or by adoption. In simple words we may say that child is a human being from the moment of his birth to the attainment of majority. The Oxford Advanced Learner’s Dictionary defines the child as a person - boy or girl right from birth to the age of full physical development.[8] The Black’s Law Dictionary[9] defined a child as a person below the age of maturity. At common law, a child is referred to as an infant and defined as a person who had not attained the age of majority as prescribed by law. The term infant retained current usage, but is often replaced by the more modern terms such as minor, juveniles or child.[10] In Nigeria, the customary definitions of the child are different among various ethnic groups and tribes.[11] In other words, the criterion for determining childhood varies from ethnic group to ethnic group. For example in some ethnic groups a boy remains a child until initiated into an age grade society; while others prescribe the criteria of financial contribution in the development society; still others believe that childhood terminates at puberty — an age for consummation of marriage[12]. Finally, some tribes believe that the childhood continues until one attains maturity, and maturity burst into life upon the attainment of particular physical age[13]. The Children and Young Persons Act, which is an important piece of legislation dealing with the rights and welfare of children, defines the term child as a person under the age of fourteen years, while a young person is between the ages of fourteen to seventeen years.[14] It is pertinent to mention that the legal age of a child has tended to vary depending upon the purpose of the statute. The physical age limits, or the criteria for determining childhood varies from statute to statute and more particularly, depending upon the purpose of the statute. That is why, in Nigeria, the working age[15] of the child is different from the age of criminal responsibility[16]. Similarly, the marriage age prescribed under the law[17] different from civic or voting age.[18] It thus becomes clear that different physical ages are prescribed as the age of majority in different statutes but there is a reasonable relationship between particular physical age limit and the purpose of statute, which it aims to achieve.
Besides the customary and statutory definitions, there are the treaty definitions of a child. According to article 1 of the United Nations Convention of the Rights of the Child[19], a child means every human being below the age of eighteen years.[20] It means a child is any infant male or female that is not yet eighteen years or above. Similarly, the African Charter on the Rights and Welfare of the African Child[21], defines a child as every human being up to the age of eighteen years.”[22] Both universal and regional conventions relating to the rights and welfare of the child define child as a person who has not attained the age of eighteen years. It is pertinent to mention that in order to avail the benefits and protections under the above mentioned Conventions and for the purposes of this study, a child is defined as a person male or female below the age of eighteen years.[23]
3.0 Right of the Child under Nigeria Law
Nigeria is the most populous black nation in the world with an estimated 140 million people, 47 per cent of the estimated 140 million are children.[24] Although Nigeria is a signatory to the UN Convention, there has been much discussion whether the ideals of the Convention are not starkly opposed to social and traditional concepts of children. This may at first seem puzzling for a number of reasons. First, there are a number of other legal instruments applicable to Nigeria which contain similar and perhaps more extensive guarantees. For example, a formal Convention to which Nigeria is a signatory – the Charter on the Rights and Welfare of the African Child – adopted in 1990. The Charter stresses particularly the preservation and strengthening of positive African values which are complementary to the development of the African child. In addition, it seeks to discourage those values which are harmful to the health and status of children. Secondly, an examination of the 1999 Constitution, reveals in Chapter II some cardinal principles and objectives of the Nigerian State which are geared towards the protection of children. For example, section 17(3) (f) of the Constitution provides that “(f) children, young persons ... [should be] protected against any exploitation whatsoever, and against moral and material neglect.” Likewise in section 18, the Government is required to direct its policy towards ensuring equal and adequate educational opportunities at all levels.
The welfare of children was first statutorily recognised in 1943, through a Children and Young Persons Ordinance.[25] This later became Chapter 31 of the Laws of Nigeria as revised in l948[26], and was retained as Chapter 32 of the Laws of the Federation of Nigeria and Lagos as revised in 1958. The Ordinance was made applicable to Lagos in 1946, was extended to the Eastern and Western Regions of Nigeria by Order-in-Council No. 22 of 1946 and was enacted for Northern Nigeria in 1958. It can, therefore, be found in the compilations of the laws of these regions.[27] On the adoption of a state structure in 1967, many States enacted their own Children and Young Persons Laws[28] which are almost identical to the original legislation as amended. The Act was, therefore, omitted in the federal law revision exercise of 1990 because it had become state law.[29] The CYPA makes provisions for the welfare and treatment of young offenders and the establishment of juvenile courts. The Act also makes provisions for juveniles in need of care or protection. The law is divided into nine broad parts: Part one deals with preliminary issues such as definitions. Part two deals with juvenile offenders especially issues such as bail of children arrested, custody when they are not granted bail, association with detained adults while in custody, remand and committal to custody, conditions under which a parent or guardian may attend court and so on. Other matters dealt with in part two include the constitution of the juvenile court, rules of court, power of the court to punish juveniles, methods whereby children and young persons charged with offences may be dealt with, and the power to establish places of detention for juveniles.
Part three deals with probation officers. Part four deals with approved institutions, while Part five deals with juveniles in need of care and attention and contains provisions on situations where the parent or guardian is unable to exercise control. Part six makes provisions for the contribution of parents or guardians towards the maintenance of juveniles, while parts seven, eight and nine consider miscellaneous issues, trading in children and power to make regulations respectively.
4.0 The Child Right Act 2003
The Child Rights Act, is a comprehensive piece of legislation enacted by Nigeria in November 2003 which provided generally for the total well being, protection and welfare of children in Nigeria. According to the act, in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be primary consideration[30]. The act went further to provide that a child shall be giving such protection and care as is necessary for the well-being of the child, taking into account the rights and duties of the child’s parents, legal guardians, or other individuals, institutions, services, agencies, organizations, or bodies legally responsible for the child. Every person, institution, service, agency or thereabout, the act continues, responsible for the care or protection of children shall conform with the standards established by the appropriate authorities, particularly in the areas of safety, health, welfare, etc[31].
5.0 Protection of the Child under Nigeria Criminal Law
The juvenile justice system involves broadly child offenders and child complainants or victims. A third category, the child witness often goes unnoticed but clearly merits attention in relation to the topic. Article 3 of the UN Convention instructs that all judicial and administrative proceedings in which a child is involved, should be conducted in the best interests of the child. Thus, procedures which ensure that the child makes his representations freely and which guarantees his safety should be adopted in such proceedings.
Considering first, the case of the child complainant, there is no doubt that a large number of cases of sexual abuse are not reported in view of the reluctance of the child or the parent to initiate public proceeding.[32] Where the offender is an adult, procedural laws inadequately address the emotional or mental stress child victims experience at various stages of the proceedings. By virtue of section 204 of the Criminal Procedure Act, the court may ask members of the public to vacate the court where a person who, in its opinion, has not attained the age of 17 years is called to testify in a case relating to an offence against morality or decency. How often this power is exercised, however, is not clear. In some other jurisdictions, this safeguard has not been found to adequately reassure child complainants, or remove their apprehension in having to confront their attacker.[33]
As far as child offenders are concerned, the principal provisions are to be found also in the Criminal or Penal Code as well as the CYPA. Section 30 of the Criminal Code for this purpose provides that a person under the age of 7 years is not criminally responsible for any act or omission. A person under the age of 12 years is criminally responsible for an act or omission if it can be proved that at the time of doing the act or making the omission he had the capacity to know that he ought not to do so. It is important to note, however, that the absence of criminal responsibility for an offence does not remove a child or young person from the supervision or jurisdiction of the juvenile justice system; such a child may be dealt with under the CYPA particularly tinder Part V which deals with care and protection of children.
Where child offenders are proceeded against, they must be brought before a juvenile court. A juvenile court is constituted by a magistrate sitting with such other persons as the Chief Judge may appoint. In the juvenile court, proceedings are shrouded from publicity and are guided primarily by the best interests of the child.[34]
The CYPA offers some guide to the pre-trial and trial rights of the child offender. The most common is the child’s right to bail and the conditions regarding his detention in lieu of bail. According to section 3, bail is mandatory whenever a child is arrested for an offence unless:
(a) the charge is one of homicide or other grave crime;
(b) it is necessary in the interest of the child to remove him from association with any reputed criminal or prostitute; or
(c) the officer has reason to believe that the release on bail would defeat the ends of justice.
In those cases where bail is unavailable, section 4 requires that as far as practicable the child should be detained in remand homes as specified under Section 15(1) of the Act.
As association with adult inmates in a penal or detention centre tends more to be prejudicial to measures for the correction of the young person, the Act stipulates that juvenile offenders should not be allowed to associate with adult inmates of the penal or detention centre where they are detained.[35] As far as practicable also, the law prohibits the detention of young persons in police cells or prison; or punishment by sentence of imprisonment.[36] Where the court is satisfied of the guilt of a child or young person in respect of an offence, it may make any of a variety of orders, including:
(1) dismissing the charge;
(2) committing the offender to a corrective institution
(3) ordering the offender to be whipped;
(4) ordering the offender or parents or guardian to pay a fine.
In reality, however, the protection of the pre-trial and trial rights of the child are greatly eroded by the frequent detention of children in police cells with often violent adult offenders. Sometimes the child is abused or injured while in detention.[37] This highlights another pertinent observation on the CYPA. If its relatively simple provisions have not been effectively enforced because of a dire lack of infrastructure and skilled personnel, the fate of more elaborate and complex provisions looks quite bleak. There is no doubt, however, that for the juvenile justice system to succeed, the facilities for the reception of children and the calibre of officials, especially probation officers, should be sufficiently adequate to rehabilitate children in the system.
In this regard, section 17 of CYPA provides for the appointment of probation officers with the following duties:
(a) to visit or receive reports from the person under supervision;
(b) to see that the person under supervision observes conditions of his recognizance;
(c) to report to the court as to his behaviour;
(d) to advise, assist, and befriend him, and when necessary, to endeavour to find him suitable employment.
No doubt these are responsibilities which require specialised skills and dedication. In view of the increasing number of juvenile offenders, it is also important to increase the number of officers.
6.0 Social Welfare
Probation officers are drawn from the wider corps of social development workers in the Department of Social Welfare. From time to time the Department prepares policies and objectives of social development for the guidance of government.[38] As far as the training of social workers is concerned, it is envisaged that curricula should be standardised in order to induce professionalism in such work.[39] It is noteworthy too that the fundamental principles that shape policies in the area of child welfare emphasise the need to adopt preventive measures aimed at the creation and maintenance of an environment conducive to the healthy growth and development of the child.
The following are samples of the specific objectives of the policy:[40]
(1) enhancement of the health status of Nigerian children and their mothers through measures to control causes of high child death rate and maternal mortality rates;
(2) adoption of measures to ensure effective education of the Nigerian child at all levels;
(3) ensuring that every child grows up in a social and cultural situation that is conducive to the healthy development of his total personality, and which provides him with adequate opportunity participate in social and cultural activities;
(4) minimising the incidence of the various forms of child abuse and neglect prevalent in the society with a view to eventually eliminating them;
(5) ensuring that fostered and adopted children are protected and given necessary care;
(6) minimising the incidence of teenage pregnancy and child marriages.
Although these goals are laudable, it is doubtful whether since 1989 they have been substantially realised. The implementation of these policies appears to be be-devilled by haphazard action and grossly inadequate funding. There is no doubt that the Government bears a heavy burden in respect of funding child welfare or social development programmes. Indeed, the Federal Government often acknowledges special responsibility for ensuring that levels of funding for child welfare and development, care of the elderly and the disabled are adequate. In recent years, however, the level of public funds injected into these programmes has been inadequate. Although the private sector contributes considerably to this sector, particularly through programmes designed to generate funds, it appears that on the aggregate, its contribution has been relatively negligible compared to the enormity of the work required to be done.
It may be asked, why, if the family is primarily responsible for the upkeep of child, the Government should concern itself with funding child welfare schemes. An answer to this poser can be found in the introduction to Chapter 8 of the Social Development Policy for Nigeria. It states:
The family is the basic social unit of any nation since the nation is built by members of the family. Hence, the social and economic development of the nation depends on the stability and well-being of the family. There is need, therefore, to ensure that the family is properly planned and developed to be able to function effectively for the overall development of the nation.
It states further that the welfare of the child is bound up inextricably with that of his parents, his family and kinship group. Parents have moral and legal responsibilities to their children. One of the basic responsibilities is to support them with the necessities of life such as food, clothing, shelter, education and health. In this regard, the State is enjoined to play an active role. Article 18(1) of the African Charter on Human and Peoples Rights[41] provides that:
the family shall be the natural unit and basis of society. It shall be protected by the State...
Paragraph 3 of the same Article provides that “the State shall... ensure the protection of the rights of the woman and the child as stipulated in international declarations and Conventions.”
From these provisions, it is clear that the State has a responsibility towards the family and the child. Studies have confirmed that the probability of child abuse occurrences is commensurate with the level of stress in the family.[42] It is not surprising, therefore, that in articulating a child welfare policy, Government acknowledges the need to enhance the well being and security of the family by initiating measures which strengthen the family’s ability to provide the necessary environment for healthy child development.
However, the reality today is that these supportive measures are too feeble to have the desired effect. High levels of inflation, unemployment and retrenchment, combine effectively with job insecurity, social vices and lowered educational standards to form a dismal and vicious cycle of poverty. In the light of the reigning policy of Structural Adjustment, public expenditure on subsidies, social development and public utilities have significantly shrunk, while a drastically devalued currency has effectively crippled the purchasing power of individual families.[43]
7.0 Education
There is no doubt that education is a central pivot in any effort to improve the rights of the child. The education of the child begins at birth, but the multi-ethnic configuration of Nigeria with differing cultural perceptions of the child, its rights and duties, prevents the identification of a standard cultural practice on the education of the child. Needless to say, upbringing and development in significantly different cultural, social, economic, political and physical environments predispose Nigerian children to behavioural tendencies traceable to their cultural background.
Education of children may be classified into formal and non-formal education. Formal education with which we are concerned may be further classified into preschool education, primary/secondary education and tertiary education. It is not intended to discuss each category in-depth, but to raise issues of implementation for consideration especially in relation to primary and secondary education.
Constitutionally, education falls within the legislative competence of both State and federal governments[44] At the State level; there is no statutory compulsion upon parents to educate children. In the old Western Region[45] the extant Education Law provided that pupils were to be educated in accordance with the wishes of parents and in accordance with age, ability and aptitude.[46] Furthermore, section 32 imposed a duty on the parents of every child of primary school age to cause him[47] to receive efficient full time education suitable to his age, ability and aptitude either by regular attendance at school or otherwise. The apparent lack of a sanction for breach of this provision rendered it less effective, although the operation of free education within the defunct Western Region encouraged compliance by parents. Outside the Western Region where there is no statutory provision for compulsory education, the matter is left to the discretion and financial capability of parents. Although customary, traditional and cultural education is imparted in the process of upbringing, it does not compete favourably with much needed formal western education especially in the context of the need to benefit from the development and advancement of technology in other cultures.
At the federal level, the African Charter provides that every individual shall have the right to education.[48] In addition, the Constitution[49] enjoins the Federal Government to direct its policies towards sound educational objectives. Section 18 of Chapter II on Fundamental Objectives and Directive Principles of State Policy provides:
(1) Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.
(3) Government shall strive to eradicate illiteracy, and to this end, Government shall, as and when practicable, provide:
(a) free, compulsory, universal primary education;
(b) free secondary education;
(c) free university education; and
(d) free adult literacy programme.
The non-justiciability of this provision, especially on free, compulsory, universal primary education eroded the benefit which the child could have derived from it. In Archbishop Olubunmi Okogie v. Attorney-General of Lagos State[50], TM the court held that the fundamental objectives provisions of the constitution are subsidiary to the fundamental human rights provisions of the constitution. As such, the attainment of the objectives re subject to the legislative powers conferred upon the State. The court implied here that there must be a statutory provision compelling the State to educate citizens. The court rested its conviction on section 6(6)(c) of the Constitution and the as and when practicable limb of section 18(3) of the same Constitution.
S.6 (6)(c) provides that the judicial powers vested in accordance with the provisions of the section:.
(c) shall riot, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.
The decision in Okogie is a set back to the realisation of the objectives set out in Chapter 11 of the Constitution. It encourages governments, whether democratic or undemocratic, with or without a constituency to whom it will report, to pursue policies which are not necessarily beneficial to its citizens’ welfare.
Lacking any constitutional responsibility to educate its citizens, the Federal Government morally pursues the matter as dictated by policy which the citizens are usually not aware of, and even if aware of, are unable to enforce. The first National Policy on Education was published in 1977, and revised in 1981[51] Strategies for implementing the policy have been dependent on socio-economic considerations which almost always confine education to the back seat.
8.0 Conclusion
All the rights and duties discussed above are all targeted towards the achievement of the continuity of the human race in a stable, harmonious, progressive and civilised manner, through the establishment of a societal regime which is characterised by peace, development and happiness. And, inasmuch as the child is the father of man, law and conventions have been made to protect the child. In the words of the African Charter.
In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.[52]
This provision should be perceived, however, not as one seeking to achieve the propagation of the welfare and best interests of the child as an end by itself, but rather, as a means to assuring the welfare and best interests of mankind, in view of the fact that the child constitutes the cycle of continuity for mankind
In order to practically curb incidents of discrimination as it affects the rights of the child, legislators should continually make and improved laws, which will specially protect the rights of the child and provide sufficient safeguard and mechanism for redressing any infringements. A great deal still has to be done in the field, however, to ensure that the 21st century will also be that of the children. Child abuse is a monster, walking tall on our street. This must stop. The child should be seen as a subject of rights and not as an object of it, because, Humanity will only progress if we are able to prepare the children of today to become the citizens of tomorrow by appreciating and respecting their rights.
One of the evils bedeviling the application and observance of children rights is the disparities in the definition ascribed to children in various jurisdictions; the above disparities in the definition and description of a child have practical implication for the application and observance of children’s rights and welfare. They complicate the administration and protection of these rights, as it is not clear who is a child. There is need to harmonise the description and age categorization for more efficacious administration and protection of children’s rights. A common age of entry into adulthood is required. Eighteen years seems appropriate and reasonable. Everybody below 18 should be accorded the description of ‘child’ and the other descriptions’ and age categorizations should be only retained and applied where it is reasonable and necessary. For example, the provision in most Penal Codes that a male child below 12 years of age is immune from criminal prosecution for sexual offence should be retained, but those in most Matrimonial Causes Acts ascribing different ages for different races particularly in Africa for different genders should be removed[53].
Although the Criminal and Penal Codes prohibit cases of sexual and physical abuse of children it is only concerned with penalizing such cases. The Children and Young Persons Act, however, prescribes measures for removing or protecting children from the adverse effects of these activities. Thus, Part V of the Act brings children who are victims of abuse or neglect, (not necessarily as defined under criminal law), under the jurisdiction of a juvenile court for the purpose of ordering that appropriate measures for the child’s care and protection should be taken.[54]
This essay highlights the need for more resources allocation in the system if the rights of the child detailed in the UN Convention, the African Charter, and the Child Rights Act[55], are ever to be effectively realized. As Paulsen has pointed out, ‘no law can be better than its implementation, and implementation can be no better than resource permits’ The ratification of the above two conventions and the enactment of the Child Rights Act, heightening the awareness of child rights will be meaningless if the necessary resources are not allocated to achieve these rights in practice. It is often said that a society can best be judged by the way in which it treats its less privileged citizens, African countries, and Nigeria inclusive, are fond of engaging in rhetoric about the ‘unique and privileged’ position that children occupy in the society, it is up to Nigeria, to match rhetoric with practical initiatives . To these end, it is suggested that to ensure that these rights as enshrined in the two convention and domesticated in the Child Rights Act , as provided in the first chapter of the act which provides that
in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be primary consideration
are enjoyed by children , the provisions of the Act as provided above , be adhered to, to the letter, to ensures that children in all ramifications, enjoy these rights, to achieve the purpose of the act as actually a law to protect the rights of the child.
1.0 Introduction
The phenomenon of childhood is not unique to humans. Most other forms of life also embody a process where infants over time become adult members of the species. However, human infants are unique, at least among the primates, in the extent of their vulnerability and dependence on an extended period of socialization and learning in order to achieve maturity. Thus, childhood for humans is a comparatively long period during which young people gradually acquire the competencies and capacities of adulthood. Because children are perceived to be vulnerable and dependent upon more competent adults, they are viewed as a distinct class for legal purposes. From biblical time to the present, the law has imposed disabilities upon, and provided special protections for children.
Like any other society, as stated earlier, be it developed or developing, ancient or new, the African society consists of children and adults[3]. Each category of persons has different rights, freedoms and obligations under national and international law[4]. The overall importance and concern for children all over the world could be said to have gotten a remote chequered history. Not only have children constituted a central focus in the social-cultural attainment of every nation, many world bodies, both international and non governmental organizations, have also established legal, administrative and institutional structures for effective recognition, protection and survival of children. Today, the issue of children’s existence, welfare, education, value, protection and survival are cardinal in the affairs of nations. Significance is now seriously attached to children so much that they constitute a unique item on the agenda of relevant bodies and organizations.[5]
In the African cultural context the child occupies a significant position. There is no doubt that the child is a biological product of man and woman but at the same time, he is considered to be the gift of God. The adoption of the United Nations Convention on the Rights of the Child in 1989 represented a significant milestone in the slow but perceptible movement towards the entrenchment of clearly definable rights for children. Significantly, the United Nation Convention on the Rights of the Child, the African Charter on the Welfare of the Child and the Child Rights Act[6], succinctly express the predicaments of the African child, his unique place in society as well as his needs. The articulation of these rights in a multilateral convention served to highlight basic but universally acceptable standards, which all signatories became obliged to incorporate in their national laws and policies. These standards extend to the protection of the child’s life, the promotion of health and educational opportunities and the prevention of exploitation, physical and sexual abuse. They emphasize that every child is entitled to opportunities and facilities which guarantee healthy and normal development. In response to this clarion call by the United Nations, the African Continent adopted the Charter on the Rights and Welfare of the African Child in the Summit of the Heads of State of the Organisation of African Unity[7] in 1990. The Charter stresses particularly the preservation and strengthening of positive African values which are complementary to the development of the African child. In addition, it seeks to discourage those values which are harmful to the health and status of children. This paper examines critically the right of an African child, with particular attention to the provisions of the laws in Nigeria. The paper further examines the right of a child under the UN and the African Charter; The Right of a child under Nigerian Law, the Juvenile justice system, the provision of the law relating to children under civil laws, as well as how the Nigerian laws has responded and addressed the needs and predicaments of the child by municipal laws in accordance with international law.
2.0 Who is a Child?
The ordinary meaning of a child is that he is a natural person, who is an offspring of another either by birth or by adoption. In simple words we may say that child is a human being from the moment of his birth to the attainment of majority. The Oxford Advanced Learner’s Dictionary defines the child as a person - boy or girl right from birth to the age of full physical development.[8] The Black’s Law Dictionary[9] defined a child as a person below the age of maturity. At common law, a child is referred to as an infant and defined as a person who had not attained the age of majority as prescribed by law. The term infant retained current usage, but is often replaced by the more modern terms such as minor, juveniles or child.[10] In Nigeria, the customary definitions of the child are different among various ethnic groups and tribes.[11] In other words, the criterion for determining childhood varies from ethnic group to ethnic group. For example in some ethnic groups a boy remains a child until initiated into an age grade society; while others prescribe the criteria of financial contribution in the development society; still others believe that childhood terminates at puberty — an age for consummation of marriage[12]. Finally, some tribes believe that the childhood continues until one attains maturity, and maturity burst into life upon the attainment of particular physical age[13]. The Children and Young Persons Act, which is an important piece of legislation dealing with the rights and welfare of children, defines the term child as a person under the age of fourteen years, while a young person is between the ages of fourteen to seventeen years.[14] It is pertinent to mention that the legal age of a child has tended to vary depending upon the purpose of the statute. The physical age limits, or the criteria for determining childhood varies from statute to statute and more particularly, depending upon the purpose of the statute. That is why, in Nigeria, the working age[15] of the child is different from the age of criminal responsibility[16]. Similarly, the marriage age prescribed under the law[17] different from civic or voting age.[18] It thus becomes clear that different physical ages are prescribed as the age of majority in different statutes but there is a reasonable relationship between particular physical age limit and the purpose of statute, which it aims to achieve.
Besides the customary and statutory definitions, there are the treaty definitions of a child. According to article 1 of the United Nations Convention of the Rights of the Child[19], a child means every human being below the age of eighteen years.[20] It means a child is any infant male or female that is not yet eighteen years or above. Similarly, the African Charter on the Rights and Welfare of the African Child[21], defines a child as every human being up to the age of eighteen years.”[22] Both universal and regional conventions relating to the rights and welfare of the child define child as a person who has not attained the age of eighteen years. It is pertinent to mention that in order to avail the benefits and protections under the above mentioned Conventions and for the purposes of this study, a child is defined as a person male or female below the age of eighteen years.[23]
3.0 Right of the Child under Nigeria Law
Nigeria is the most populous black nation in the world with an estimated 140 million people, 47 per cent of the estimated 140 million are children.[24] Although Nigeria is a signatory to the UN Convention, there has been much discussion whether the ideals of the Convention are not starkly opposed to social and traditional concepts of children. This may at first seem puzzling for a number of reasons. First, there are a number of other legal instruments applicable to Nigeria which contain similar and perhaps more extensive guarantees. For example, a formal Convention to which Nigeria is a signatory – the Charter on the Rights and Welfare of the African Child – adopted in 1990. The Charter stresses particularly the preservation and strengthening of positive African values which are complementary to the development of the African child. In addition, it seeks to discourage those values which are harmful to the health and status of children. Secondly, an examination of the 1999 Constitution, reveals in Chapter II some cardinal principles and objectives of the Nigerian State which are geared towards the protection of children. For example, section 17(3) (f) of the Constitution provides that “(f) children, young persons ... [should be] protected against any exploitation whatsoever, and against moral and material neglect.” Likewise in section 18, the Government is required to direct its policy towards ensuring equal and adequate educational opportunities at all levels.
The welfare of children was first statutorily recognised in 1943, through a Children and Young Persons Ordinance.[25] This later became Chapter 31 of the Laws of Nigeria as revised in l948[26], and was retained as Chapter 32 of the Laws of the Federation of Nigeria and Lagos as revised in 1958. The Ordinance was made applicable to Lagos in 1946, was extended to the Eastern and Western Regions of Nigeria by Order-in-Council No. 22 of 1946 and was enacted for Northern Nigeria in 1958. It can, therefore, be found in the compilations of the laws of these regions.[27] On the adoption of a state structure in 1967, many States enacted their own Children and Young Persons Laws[28] which are almost identical to the original legislation as amended. The Act was, therefore, omitted in the federal law revision exercise of 1990 because it had become state law.[29] The CYPA makes provisions for the welfare and treatment of young offenders and the establishment of juvenile courts. The Act also makes provisions for juveniles in need of care or protection. The law is divided into nine broad parts: Part one deals with preliminary issues such as definitions. Part two deals with juvenile offenders especially issues such as bail of children arrested, custody when they are not granted bail, association with detained adults while in custody, remand and committal to custody, conditions under which a parent or guardian may attend court and so on. Other matters dealt with in part two include the constitution of the juvenile court, rules of court, power of the court to punish juveniles, methods whereby children and young persons charged with offences may be dealt with, and the power to establish places of detention for juveniles.
Part three deals with probation officers. Part four deals with approved institutions, while Part five deals with juveniles in need of care and attention and contains provisions on situations where the parent or guardian is unable to exercise control. Part six makes provisions for the contribution of parents or guardians towards the maintenance of juveniles, while parts seven, eight and nine consider miscellaneous issues, trading in children and power to make regulations respectively.
4.0 The Child Right Act 2003
The Child Rights Act, is a comprehensive piece of legislation enacted by Nigeria in November 2003 which provided generally for the total well being, protection and welfare of children in Nigeria. According to the act, in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be primary consideration[30]. The act went further to provide that a child shall be giving such protection and care as is necessary for the well-being of the child, taking into account the rights and duties of the child’s parents, legal guardians, or other individuals, institutions, services, agencies, organizations, or bodies legally responsible for the child. Every person, institution, service, agency or thereabout, the act continues, responsible for the care or protection of children shall conform with the standards established by the appropriate authorities, particularly in the areas of safety, health, welfare, etc[31].
5.0 Protection of the Child under Nigeria Criminal Law
The juvenile justice system involves broadly child offenders and child complainants or victims. A third category, the child witness often goes unnoticed but clearly merits attention in relation to the topic. Article 3 of the UN Convention instructs that all judicial and administrative proceedings in which a child is involved, should be conducted in the best interests of the child. Thus, procedures which ensure that the child makes his representations freely and which guarantees his safety should be adopted in such proceedings.
Considering first, the case of the child complainant, there is no doubt that a large number of cases of sexual abuse are not reported in view of the reluctance of the child or the parent to initiate public proceeding.[32] Where the offender is an adult, procedural laws inadequately address the emotional or mental stress child victims experience at various stages of the proceedings. By virtue of section 204 of the Criminal Procedure Act, the court may ask members of the public to vacate the court where a person who, in its opinion, has not attained the age of 17 years is called to testify in a case relating to an offence against morality or decency. How often this power is exercised, however, is not clear. In some other jurisdictions, this safeguard has not been found to adequately reassure child complainants, or remove their apprehension in having to confront their attacker.[33]
As far as child offenders are concerned, the principal provisions are to be found also in the Criminal or Penal Code as well as the CYPA. Section 30 of the Criminal Code for this purpose provides that a person under the age of 7 years is not criminally responsible for any act or omission. A person under the age of 12 years is criminally responsible for an act or omission if it can be proved that at the time of doing the act or making the omission he had the capacity to know that he ought not to do so. It is important to note, however, that the absence of criminal responsibility for an offence does not remove a child or young person from the supervision or jurisdiction of the juvenile justice system; such a child may be dealt with under the CYPA particularly tinder Part V which deals with care and protection of children.
Where child offenders are proceeded against, they must be brought before a juvenile court. A juvenile court is constituted by a magistrate sitting with such other persons as the Chief Judge may appoint. In the juvenile court, proceedings are shrouded from publicity and are guided primarily by the best interests of the child.[34]
The CYPA offers some guide to the pre-trial and trial rights of the child offender. The most common is the child’s right to bail and the conditions regarding his detention in lieu of bail. According to section 3, bail is mandatory whenever a child is arrested for an offence unless:
(a) the charge is one of homicide or other grave crime;
(b) it is necessary in the interest of the child to remove him from association with any reputed criminal or prostitute; or
(c) the officer has reason to believe that the release on bail would defeat the ends of justice.
In those cases where bail is unavailable, section 4 requires that as far as practicable the child should be detained in remand homes as specified under Section 15(1) of the Act.
As association with adult inmates in a penal or detention centre tends more to be prejudicial to measures for the correction of the young person, the Act stipulates that juvenile offenders should not be allowed to associate with adult inmates of the penal or detention centre where they are detained.[35] As far as practicable also, the law prohibits the detention of young persons in police cells or prison; or punishment by sentence of imprisonment.[36] Where the court is satisfied of the guilt of a child or young person in respect of an offence, it may make any of a variety of orders, including:
(1) dismissing the charge;
(2) committing the offender to a corrective institution
(3) ordering the offender to be whipped;
(4) ordering the offender or parents or guardian to pay a fine.
In reality, however, the protection of the pre-trial and trial rights of the child are greatly eroded by the frequent detention of children in police cells with often violent adult offenders. Sometimes the child is abused or injured while in detention.[37] This highlights another pertinent observation on the CYPA. If its relatively simple provisions have not been effectively enforced because of a dire lack of infrastructure and skilled personnel, the fate of more elaborate and complex provisions looks quite bleak. There is no doubt, however, that for the juvenile justice system to succeed, the facilities for the reception of children and the calibre of officials, especially probation officers, should be sufficiently adequate to rehabilitate children in the system.
In this regard, section 17 of CYPA provides for the appointment of probation officers with the following duties:
(a) to visit or receive reports from the person under supervision;
(b) to see that the person under supervision observes conditions of his recognizance;
(c) to report to the court as to his behaviour;
(d) to advise, assist, and befriend him, and when necessary, to endeavour to find him suitable employment.
No doubt these are responsibilities which require specialised skills and dedication. In view of the increasing number of juvenile offenders, it is also important to increase the number of officers.
6.0 Social Welfare
Probation officers are drawn from the wider corps of social development workers in the Department of Social Welfare. From time to time the Department prepares policies and objectives of social development for the guidance of government.[38] As far as the training of social workers is concerned, it is envisaged that curricula should be standardised in order to induce professionalism in such work.[39] It is noteworthy too that the fundamental principles that shape policies in the area of child welfare emphasise the need to adopt preventive measures aimed at the creation and maintenance of an environment conducive to the healthy growth and development of the child.
The following are samples of the specific objectives of the policy:[40]
(1) enhancement of the health status of Nigerian children and their mothers through measures to control causes of high child death rate and maternal mortality rates;
(2) adoption of measures to ensure effective education of the Nigerian child at all levels;
(3) ensuring that every child grows up in a social and cultural situation that is conducive to the healthy development of his total personality, and which provides him with adequate opportunity participate in social and cultural activities;
(4) minimising the incidence of the various forms of child abuse and neglect prevalent in the society with a view to eventually eliminating them;
(5) ensuring that fostered and adopted children are protected and given necessary care;
(6) minimising the incidence of teenage pregnancy and child marriages.
Although these goals are laudable, it is doubtful whether since 1989 they have been substantially realised. The implementation of these policies appears to be be-devilled by haphazard action and grossly inadequate funding. There is no doubt that the Government bears a heavy burden in respect of funding child welfare or social development programmes. Indeed, the Federal Government often acknowledges special responsibility for ensuring that levels of funding for child welfare and development, care of the elderly and the disabled are adequate. In recent years, however, the level of public funds injected into these programmes has been inadequate. Although the private sector contributes considerably to this sector, particularly through programmes designed to generate funds, it appears that on the aggregate, its contribution has been relatively negligible compared to the enormity of the work required to be done.
It may be asked, why, if the family is primarily responsible for the upkeep of child, the Government should concern itself with funding child welfare schemes. An answer to this poser can be found in the introduction to Chapter 8 of the Social Development Policy for Nigeria. It states:
The family is the basic social unit of any nation since the nation is built by members of the family. Hence, the social and economic development of the nation depends on the stability and well-being of the family. There is need, therefore, to ensure that the family is properly planned and developed to be able to function effectively for the overall development of the nation.
It states further that the welfare of the child is bound up inextricably with that of his parents, his family and kinship group. Parents have moral and legal responsibilities to their children. One of the basic responsibilities is to support them with the necessities of life such as food, clothing, shelter, education and health. In this regard, the State is enjoined to play an active role. Article 18(1) of the African Charter on Human and Peoples Rights[41] provides that:
the family shall be the natural unit and basis of society. It shall be protected by the State...
Paragraph 3 of the same Article provides that “the State shall... ensure the protection of the rights of the woman and the child as stipulated in international declarations and Conventions.”
From these provisions, it is clear that the State has a responsibility towards the family and the child. Studies have confirmed that the probability of child abuse occurrences is commensurate with the level of stress in the family.[42] It is not surprising, therefore, that in articulating a child welfare policy, Government acknowledges the need to enhance the well being and security of the family by initiating measures which strengthen the family’s ability to provide the necessary environment for healthy child development.
However, the reality today is that these supportive measures are too feeble to have the desired effect. High levels of inflation, unemployment and retrenchment, combine effectively with job insecurity, social vices and lowered educational standards to form a dismal and vicious cycle of poverty. In the light of the reigning policy of Structural Adjustment, public expenditure on subsidies, social development and public utilities have significantly shrunk, while a drastically devalued currency has effectively crippled the purchasing power of individual families.[43]
7.0 Education
There is no doubt that education is a central pivot in any effort to improve the rights of the child. The education of the child begins at birth, but the multi-ethnic configuration of Nigeria with differing cultural perceptions of the child, its rights and duties, prevents the identification of a standard cultural practice on the education of the child. Needless to say, upbringing and development in significantly different cultural, social, economic, political and physical environments predispose Nigerian children to behavioural tendencies traceable to their cultural background.
Education of children may be classified into formal and non-formal education. Formal education with which we are concerned may be further classified into preschool education, primary/secondary education and tertiary education. It is not intended to discuss each category in-depth, but to raise issues of implementation for consideration especially in relation to primary and secondary education.
Constitutionally, education falls within the legislative competence of both State and federal governments[44] At the State level; there is no statutory compulsion upon parents to educate children. In the old Western Region[45] the extant Education Law provided that pupils were to be educated in accordance with the wishes of parents and in accordance with age, ability and aptitude.[46] Furthermore, section 32 imposed a duty on the parents of every child of primary school age to cause him[47] to receive efficient full time education suitable to his age, ability and aptitude either by regular attendance at school or otherwise. The apparent lack of a sanction for breach of this provision rendered it less effective, although the operation of free education within the defunct Western Region encouraged compliance by parents. Outside the Western Region where there is no statutory provision for compulsory education, the matter is left to the discretion and financial capability of parents. Although customary, traditional and cultural education is imparted in the process of upbringing, it does not compete favourably with much needed formal western education especially in the context of the need to benefit from the development and advancement of technology in other cultures.
At the federal level, the African Charter provides that every individual shall have the right to education.[48] In addition, the Constitution[49] enjoins the Federal Government to direct its policies towards sound educational objectives. Section 18 of Chapter II on Fundamental Objectives and Directive Principles of State Policy provides:
(1) Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.
(3) Government shall strive to eradicate illiteracy, and to this end, Government shall, as and when practicable, provide:
(a) free, compulsory, universal primary education;
(b) free secondary education;
(c) free university education; and
(d) free adult literacy programme.
The non-justiciability of this provision, especially on free, compulsory, universal primary education eroded the benefit which the child could have derived from it. In Archbishop Olubunmi Okogie v. Attorney-General of Lagos State[50], TM the court held that the fundamental objectives provisions of the constitution are subsidiary to the fundamental human rights provisions of the constitution. As such, the attainment of the objectives re subject to the legislative powers conferred upon the State. The court implied here that there must be a statutory provision compelling the State to educate citizens. The court rested its conviction on section 6(6)(c) of the Constitution and the as and when practicable limb of section 18(3) of the same Constitution.
S.6 (6)(c) provides that the judicial powers vested in accordance with the provisions of the section:.
(c) shall riot, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.
The decision in Okogie is a set back to the realisation of the objectives set out in Chapter 11 of the Constitution. It encourages governments, whether democratic or undemocratic, with or without a constituency to whom it will report, to pursue policies which are not necessarily beneficial to its citizens’ welfare.
Lacking any constitutional responsibility to educate its citizens, the Federal Government morally pursues the matter as dictated by policy which the citizens are usually not aware of, and even if aware of, are unable to enforce. The first National Policy on Education was published in 1977, and revised in 1981[51] Strategies for implementing the policy have been dependent on socio-economic considerations which almost always confine education to the back seat.
8.0 Conclusion
All the rights and duties discussed above are all targeted towards the achievement of the continuity of the human race in a stable, harmonious, progressive and civilised manner, through the establishment of a societal regime which is characterised by peace, development and happiness. And, inasmuch as the child is the father of man, law and conventions have been made to protect the child. In the words of the African Charter.
In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.[52]
This provision should be perceived, however, not as one seeking to achieve the propagation of the welfare and best interests of the child as an end by itself, but rather, as a means to assuring the welfare and best interests of mankind, in view of the fact that the child constitutes the cycle of continuity for mankind
In order to practically curb incidents of discrimination as it affects the rights of the child, legislators should continually make and improved laws, which will specially protect the rights of the child and provide sufficient safeguard and mechanism for redressing any infringements. A great deal still has to be done in the field, however, to ensure that the 21st century will also be that of the children. Child abuse is a monster, walking tall on our street. This must stop. The child should be seen as a subject of rights and not as an object of it, because, Humanity will only progress if we are able to prepare the children of today to become the citizens of tomorrow by appreciating and respecting their rights.
One of the evils bedeviling the application and observance of children rights is the disparities in the definition ascribed to children in various jurisdictions; the above disparities in the definition and description of a child have practical implication for the application and observance of children’s rights and welfare. They complicate the administration and protection of these rights, as it is not clear who is a child. There is need to harmonise the description and age categorization for more efficacious administration and protection of children’s rights. A common age of entry into adulthood is required. Eighteen years seems appropriate and reasonable. Everybody below 18 should be accorded the description of ‘child’ and the other descriptions’ and age categorizations should be only retained and applied where it is reasonable and necessary. For example, the provision in most Penal Codes that a male child below 12 years of age is immune from criminal prosecution for sexual offence should be retained, but those in most Matrimonial Causes Acts ascribing different ages for different races particularly in Africa for different genders should be removed[53].
Although the Criminal and Penal Codes prohibit cases of sexual and physical abuse of children it is only concerned with penalizing such cases. The Children and Young Persons Act, however, prescribes measures for removing or protecting children from the adverse effects of these activities. Thus, Part V of the Act brings children who are victims of abuse or neglect, (not necessarily as defined under criminal law), under the jurisdiction of a juvenile court for the purpose of ordering that appropriate measures for the child’s care and protection should be taken.[54]
This essay highlights the need for more resources allocation in the system if the rights of the child detailed in the UN Convention, the African Charter, and the Child Rights Act[55], are ever to be effectively realized. As Paulsen has pointed out, ‘no law can be better than its implementation, and implementation can be no better than resource permits’ The ratification of the above two conventions and the enactment of the Child Rights Act, heightening the awareness of child rights will be meaningless if the necessary resources are not allocated to achieve these rights in practice. It is often said that a society can best be judged by the way in which it treats its less privileged citizens, African countries, and Nigeria inclusive, are fond of engaging in rhetoric about the ‘unique and privileged’ position that children occupy in the society, it is up to Nigeria, to match rhetoric with practical initiatives . To these end, it is suggested that to ensure that these rights as enshrined in the two convention and domesticated in the Child Rights Act , as provided in the first chapter of the act which provides that
in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be primary consideration
are enjoyed by children , the provisions of the Act as provided above , be adhered to, to the letter, to ensures that children in all ramifications, enjoy these rights, to achieve the purpose of the act as actually a law to protect the rights of the child.
Igbinedion University, Okada Edo State, Nigeria
[1] The Convention was adopted by the forty-fourth UN General Assembly on 20th November 1989.
[2] Now African Union
[3] Chhangani R.C. “The Child’s Right to Birth Registration in Nigeria” Vol 5 University of Maiduguri Law Journal (2002) P138.
[4] See Ayua A.I & Okagbue,I.E (eds) The Rights of the Child in Nigeria, Lagos, Nigerian Institute of Advanced Legal Studies, (1996), P. 28 See also. R Chhangani, “The African society and the status of the child,” Nigerian Forum vol. 18 (1997) P. 171.
[5] Idowu A.A. ‘Child Trafficking in Africa’ Ondo State Law Journal Vol 1 No 1 (2004) P 2
[6] 2003, applicable to Nigeria
[7] Now African Union
[8]Hornby A S (ed) Oxford Advanced Learner’s Dictionary (6th d.)Oxford, Oxford University Press, (2001) P. 187.
[9] Garner ; B.A. (ed) Black’s Law Dictionary (8th ed ) U S , Thompson West, (2004 ) P254.
[10] Gardner M.R and Dupre A.P : Children and the Law:Cases And Material., New Jersey, LexisNexis (2002) P1
[11] . Nwogugu E I – Family Law in Nigeria (3rd Ed) Ibadan, Heinemann Education Books (1999 ) P. 23. Note under customary law the age of majority is the age of puberty, See Labinjoh. V. Abake (1924) 5 NLR 3. See also Adedokun A. Adevemi, ‘Children in especially difficult circumstances in the contexts of the United Nations Convention and the OAU Charter On The Rights Of The Child’ Vol. 1 The Nigerian Journal Of Public Law, University of Lagos,(1997) PP16-25. See recently Alemika, Emily I ‘Legal Frameworks for the Child Rights in Nigeria’ Journal of public law and constitutional practice University of Jos, Vol 3 No 2 2010 PP1-17
[12] Chhangani R.C. “The Child’s Right to Birth Registration in Nigeria” op. cit P138
[13] Sec. 17(3)(f) of the Constitution of the Federal Republic of Nigeria, 1999, hereinafter referred to as 1999 Constitution,. Under Nigeria Law, Children, young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect.
[14] Sec. 2 of the Children & Young Persons Act 1958 while Sec 2 of the Children and Young Person’s Law, Laws of Northern Nigeria, 1963, Cap 21 prescribes the age of 18 for a young person. These laws were the earlier legislation on child rights that were in operation in Nigeria before the enactment of the Child Rights Act 2003.
[15] Sec. 58 (1) of the Nigerian Labour Act, defines child as a person below the age of 12 while sections 58(3) & (8) [prescribe the age of 14 and 16 respectively. Ss. 58-63 of the Labour Act protect children under 14 years of age from being engaged in strenuous jobs injurious to their health or dangerous or immoral etc.
[16] See 30 of the Criminal Code (Sec. 50 of the Penal Code) prescribes that a person under the age of 7 years is not criminally responsible.
[17] Sec. 57(2) & (3) of the Matrimonial Causes Act , Cap M10 Laws of the Federation of Nigeria 2004 prescribes the age of 16 years.
[18] Sec. 1(1) of the Electoral Act; 2006; also Ss. 77(2) & 117(2) of the 1999 Constitution fixed the age of 18 years as the minimum age of eligibility to vote at elections to legislative Houses.
[19] 1989
[20] Art II reads: “a child means every human being below the age of 18 years unless under the law applicable to the child majority is attained earlier”.
[21] 1990
[22] Art II reads: “a child means every human being below the age of 18 years.
[23] Article II of the OAU Charter on the Rights and Welfare of the Child. However, Article I of the United Nations Convention on the Rights of the Child defines a Child as every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. This means that for specific purposes, majority can be achieved earlier under specific national laws, as in the cases of capacity to contract marriage, responsibility for crimes, age qualification for apprenticeship, or university admissions.
[24] National Population Policy (Department of Population Activities, Federal Ministry of Health) at p. 5
[25] No. 41 of 1943 as amended by No. 44 of 1945 and No. 27 of 1947. Hereinafter referred to, as CYPA.
[26] Laws of Nigeria 1948 (containing ordinances and subsidiary legislation enacted before 1st January, 1948).
[27] See e.g. Cap 21 Laws of Northern Nigeria, 1963, Cap 19 Laws of Eastern Nigeria, 1963 and Cap 20 Laws of Western Nigeria, 1959.
[28] Hereinafter referred to as CYPA.
[29] 7. See Vol.1 Laws of the Federation of Nigeria, 1990.
[30] Section 1 of the Child Rights Act 2003.
[31] The Act has 278 chapters and 11 schedules. The provision of the Act is almost similar to the Children and Young Persons Act, the major difference is the while the CYPA is a regional or state law; the Act is a Federal law.
[32] P 3 .
Criminal prosecution must in general be concluded publicly. See s.33(3) of 1979 Constitution. Section 203 Criminal Procedure Act Cap C37 LFN 2004.
[33] See para I - 11 Report of the Advisory Group on Video Evidence 1989 (Home Office) and 0. Glaser and JR. Spencer, “Sentencing, Children’s Evidence and Children’s Trauma” [1990] Crim L.R. 371.
[34] Section 6(2) CYPA.
[35] See sections 5, 11(3) and 15(3) CYPA.
[36] Section 5, 7, 11, 12 and 23.
[37] See, Ex-Kid Robbers Tell Their Story’, Weekend Concord, January 16, 1993 p. 9.
[38] See Social Development Policy for Nigeria. (Department of Social Welfare, 1989).
[39] ibid., paragraph 18. 2.1. p. 90
[40] ibid., para 8.2.5.
[41] Cap P9 Laws of the Federation of Nigeria 2004.
[42] Makanju O.O.A and Oguntuwase K.A., “The Consequences of Marital Divorce on the Social and Psychological Development of the Child”; Saba K.O., “Surviving Marital Break Up: What Prospects for the Child’, Papers presented at National Conference on Women and Children in Divorce, Nigerian Institute of Advanced Legal Studies, March 1996.
[43] Bolajii Owasanoye, ‘The Development of Extra-Legal Services for the Family in Crises” paper presented at the National Conference on Women and Children in Divorce, Nigerian Institute of Advanced Legal Studies, March 1996.
[44] See Item L paras. 27, 28 and 29 of the Concurrent Legislative List, Constitution of the Federal Republic of Nigeria, 1999.
[45] Now comprising Ogun, Ondo, Osun, Oyo, Edo and Delta States.
[46] E.g., section 18 Education Law Cap. 36, Laws of Ondo State of Nigeria, 1978. Similar provisions are to be found in the Education Laws of other States of the oh Western Region. See also section 18 Education Law Cap 37, Laws of Lagos State, 1973.
[47] The use of the masculine gender here does not exclude the feminine, see section 14(a) of the Interpretation Act Cap 192 LFN 1990. Now Cap I 13 Laws of the Federation 2004.
[48] Article 17(1).
[49] Constitution of the Federal Republic of Nigeria 1999.
[50] (1981) 2 NCLR 337.
[51] Children and Women in Nigeria: A Situation Analysis (UNICEF/FGN, 1990) AT P. 19.
[52] Article IV(1) of the Charter; ibid. See also, similar provision in Article 3 of the Convention, ibid.
[53] See Kenyan Penal Code, Cap,63, Nigerian Criminal Code Cap C38 Laws of the Federation of Nigeria 2004
[54] See section 26(2) CYPA.
[55] Monrad Paulsen, ‘The Law and Abused Children” in Helfer , R and Kempe C (eds) The Battered Child Chicago, University of Chicago Press 1974, quoted in Ayua I A and Okagbue I E (Eds) The right of a child in Nigeria Op cit P 307
[1] The Convention was adopted by the forty-fourth UN General Assembly on 20th November 1989.
[2] Now African Union
[3] Chhangani R.C. “The Child’s Right to Birth Registration in Nigeria” Vol 5 University of Maiduguri Law Journal (2002) P138.
[4] See Ayua A.I & Okagbue,I.E (eds) The Rights of the Child in Nigeria, Lagos, Nigerian Institute of Advanced Legal Studies, (1996), P. 28 See also. R Chhangani, “The African society and the status of the child,” Nigerian Forum vol. 18 (1997) P. 171.
[5] Idowu A.A. ‘Child Trafficking in Africa’ Ondo State Law Journal Vol 1 No 1 (2004) P 2
[6] 2003, applicable to Nigeria
[7] Now African Union
[8]Hornby A S (ed) Oxford Advanced Learner’s Dictionary (6th d.)Oxford, Oxford University Press, (2001) P. 187.
[9] Garner ; B.A. (ed) Black’s Law Dictionary (8th ed ) U S , Thompson West, (2004 ) P254.
[10] Gardner M.R and Dupre A.P : Children and the Law:Cases And Material., New Jersey, LexisNexis (2002) P1
[11] . Nwogugu E I – Family Law in Nigeria (3rd Ed) Ibadan, Heinemann Education Books (1999 ) P. 23. Note under customary law the age of majority is the age of puberty, See Labinjoh. V. Abake (1924) 5 NLR 3. See also Adedokun A. Adevemi, ‘Children in especially difficult circumstances in the contexts of the United Nations Convention and the OAU Charter On The Rights Of The Child’ Vol. 1 The Nigerian Journal Of Public Law, University of Lagos,(1997) PP16-25. See recently Alemika, Emily I ‘Legal Frameworks for the Child Rights in Nigeria’ Journal of public law and constitutional practice University of Jos, Vol 3 No 2 2010 PP1-17
[12] Chhangani R.C. “The Child’s Right to Birth Registration in Nigeria” op. cit P138
[13] Sec. 17(3)(f) of the Constitution of the Federal Republic of Nigeria, 1999, hereinafter referred to as 1999 Constitution,. Under Nigeria Law, Children, young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect.
[14] Sec. 2 of the Children & Young Persons Act 1958 while Sec 2 of the Children and Young Person’s Law, Laws of Northern Nigeria, 1963, Cap 21 prescribes the age of 18 for a young person. These laws were the earlier legislation on child rights that were in operation in Nigeria before the enactment of the Child Rights Act 2003.
[15] Sec. 58 (1) of the Nigerian Labour Act, defines child as a person below the age of 12 while sections 58(3) & (8) [prescribe the age of 14 and 16 respectively. Ss. 58-63 of the Labour Act protect children under 14 years of age from being engaged in strenuous jobs injurious to their health or dangerous or immoral etc.
[16] See 30 of the Criminal Code (Sec. 50 of the Penal Code) prescribes that a person under the age of 7 years is not criminally responsible.
[17] Sec. 57(2) & (3) of the Matrimonial Causes Act , Cap M10 Laws of the Federation of Nigeria 2004 prescribes the age of 16 years.
[18] Sec. 1(1) of the Electoral Act; 2006; also Ss. 77(2) & 117(2) of the 1999 Constitution fixed the age of 18 years as the minimum age of eligibility to vote at elections to legislative Houses.
[19] 1989
[20] Art II reads: “a child means every human being below the age of 18 years unless under the law applicable to the child majority is attained earlier”.
[21] 1990
[22] Art II reads: “a child means every human being below the age of 18 years.
[23] Article II of the OAU Charter on the Rights and Welfare of the Child. However, Article I of the United Nations Convention on the Rights of the Child defines a Child as every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. This means that for specific purposes, majority can be achieved earlier under specific national laws, as in the cases of capacity to contract marriage, responsibility for crimes, age qualification for apprenticeship, or university admissions.
[24] National Population Policy (Department of Population Activities, Federal Ministry of Health) at p. 5
[25] No. 41 of 1943 as amended by No. 44 of 1945 and No. 27 of 1947. Hereinafter referred to, as CYPA.
[26] Laws of Nigeria 1948 (containing ordinances and subsidiary legislation enacted before 1st January, 1948).
[27] See e.g. Cap 21 Laws of Northern Nigeria, 1963, Cap 19 Laws of Eastern Nigeria, 1963 and Cap 20 Laws of Western Nigeria, 1959.
[28] Hereinafter referred to as CYPA.
[29] 7. See Vol.1 Laws of the Federation of Nigeria, 1990.
[30] Section 1 of the Child Rights Act 2003.
[31] The Act has 278 chapters and 11 schedules. The provision of the Act is almost similar to the Children and Young Persons Act, the major difference is the while the CYPA is a regional or state law; the Act is a Federal law.
[32] P 3 .
Criminal prosecution must in general be concluded publicly. See s.33(3) of 1979 Constitution. Section 203 Criminal Procedure Act Cap C37 LFN 2004.
[33] See para I - 11 Report of the Advisory Group on Video Evidence 1989 (Home Office) and 0. Glaser and JR. Spencer, “Sentencing, Children’s Evidence and Children’s Trauma” [1990] Crim L.R. 371.
[34] Section 6(2) CYPA.
[35] See sections 5, 11(3) and 15(3) CYPA.
[36] Section 5, 7, 11, 12 and 23.
[37] See, Ex-Kid Robbers Tell Their Story’, Weekend Concord, January 16, 1993 p. 9.
[38] See Social Development Policy for Nigeria. (Department of Social Welfare, 1989).
[39] ibid., paragraph 18. 2.1. p. 90
[40] ibid., para 8.2.5.
[41] Cap P9 Laws of the Federation of Nigeria 2004.
[42] Makanju O.O.A and Oguntuwase K.A., “The Consequences of Marital Divorce on the Social and Psychological Development of the Child”; Saba K.O., “Surviving Marital Break Up: What Prospects for the Child’, Papers presented at National Conference on Women and Children in Divorce, Nigerian Institute of Advanced Legal Studies, March 1996.
[43] Bolajii Owasanoye, ‘The Development of Extra-Legal Services for the Family in Crises” paper presented at the National Conference on Women and Children in Divorce, Nigerian Institute of Advanced Legal Studies, March 1996.
[44] See Item L paras. 27, 28 and 29 of the Concurrent Legislative List, Constitution of the Federal Republic of Nigeria, 1999.
[45] Now comprising Ogun, Ondo, Osun, Oyo, Edo and Delta States.
[46] E.g., section 18 Education Law Cap. 36, Laws of Ondo State of Nigeria, 1978. Similar provisions are to be found in the Education Laws of other States of the oh Western Region. See also section 18 Education Law Cap 37, Laws of Lagos State, 1973.
[47] The use of the masculine gender here does not exclude the feminine, see section 14(a) of the Interpretation Act Cap 192 LFN 1990. Now Cap I 13 Laws of the Federation 2004.
[48] Article 17(1).
[49] Constitution of the Federal Republic of Nigeria 1999.
[50] (1981) 2 NCLR 337.
[51] Children and Women in Nigeria: A Situation Analysis (UNICEF/FGN, 1990) AT P. 19.
[52] Article IV(1) of the Charter; ibid. See also, similar provision in Article 3 of the Convention, ibid.
[53] See Kenyan Penal Code, Cap,63, Nigerian Criminal Code Cap C38 Laws of the Federation of Nigeria 2004
[54] See section 26(2) CYPA.
[55] Monrad Paulsen, ‘The Law and Abused Children” in Helfer , R and Kempe C (eds) The Battered Child Chicago, University of Chicago Press 1974, quoted in Ayua I A and Okagbue I E (Eds) The right of a child in Nigeria Op cit P 307