Abstract
Jurisprudence is mainly concerned with rationalizing, analyzing and giving meaning to legal concepts[1]; the concept of rights inclusive. The Child’s Rights Act 2003 is the basic statutory enactment on the rights of the Nigerian child. This paper reviewed some jurisprudential concepts and meanings of rights vis-à-vis the rights of the Nigerian Child as provided for in the Act and discovered that rights of the Nigerian Child for the purpose of the provisions of the Act are non-existent, when viewed from the reviewed jurisprudential concepts and meanings of the word “rights”.
1. Introduction:
The introduction of English type of Laws in Nigeria in 1863 by an Ordinance of that year,[2] Nigeria has her customary law on the rights of the Nigerian Child.[3] The introduction of English type of Laws, English Statutes inclusive paved way for the existence of English Laws, side by side, with customary Laws, but that customary Laws apply, subject to passing validity tests.[4] The introduction of English type of Laws in 1863 led to the making of laws in Nigeria, that are of the English type, so that statutory laws were made in Nigeria by Nigerian parliamentarians. The statutory laws so made, include the Children and Young Persons Ordinance of 1943 and more recently, the Child’s Rights Act, 2003.[5] The Act is the basic and principal enactment that contains the rights of the Nigerian child. The Act may however be said to be the only enactment on the rights of the Nigerian Child, for the Act has it in its section 274, that the provisions of the Act supercede the provisions of all enactments relating to children, adoption, fostering, guardianship, wardship, approved institutions, remand centres and borstal institutions and that where any provision of the Act is inconsistent with any of the enactments above mentioned, the enactment(s) shall to the extent of its inconsistency, be void.
In the main, the provisions of the rights of the child as contained in the Act as could be summarized as follows:
i. Rights generally provided for in chapter IV of the constitution of the Federal Republic of Nigeria, under Fundamental Rights.[6]
ii. Right to protection (e.g. from being used for criminal activities of child labour or being bought and or sold or exploited).[7]
iii. Right to care and supervision (e.g. of children who have run out of parental control).[8]
iv. Right to custody (e.g. guardianship, wardship, fostering, adoption and minding).[9]
v. Right to Special Justice Administration (e.g. where inter alia, the identity of a child being tried in the court shall not be made known to the public).[10]
vi. Right to residence in approved institutions and in event of confinement pursuant to Special Justice Administration, right to post-release supervision.[11]
The provision of the rights of the child in the Act is an issue of law and just as law itself has not been able to have a universally accepted definition,[12] all concepts based on law (including rights) are not also capable of a universally accepted definition. Not only do different legal minds ascribe different meanings to rights but legal minds within a group, propound different meanings to rights. For legal minds who are scholars of jurisprudence, differences exist on the meaning of rights. This paper shall review the meaning of rights from some jurisprudence scholars vis-à-vis the rights of the Nigerian child as provided for in the Act and determine whether or not the rights of the Nigerian Child under the Act are in existence.
2. Rights of the Nigerian Child in the Child’s Rights Act: A Jurisprudential Review.
Ordinarily, rights as a noun and taken in an abstract sense could be said to mean justice, ethical correctness or consonance with the rule of law or the principles of morals. In a concrete sense, it could be said to mean power, privilege, faculty or demand inherent in one person and incident on another. It could also be said to be a legally enforceable claim of one person that the other shall do a given act, or shall not do a given act. It further means that, which one person ought to have or receive from another, who may be a person or persons, group or the government.[13] These various ordinary notions of the meaning of the word ‘rights’ are in tandem with what has generally been agreed to be the attributes of ‘rights’: that there must be a holder of the rights, that there must be a person bound by duty to respect the rights, that there must be an act of action or forbearance to which the rights relate, that there must be the subject matter or object of the rights and that there must be a title by which the rights have been vested.[14]
Relating these attributes to the rights as provided for under the Act, the holder of the rights is the Nigerian child, the person bound by duty to obey the rights are the parents, relations, the public and even the government, the arms and the agencies; the act of forbearance to which the rights relate and the subject matter or object of the rights are sufficiently set out in the entire gamut of the Act; while the title by which the rights have been vested is the Act.
For various scholars of jurisprudence, the meaning of rights is not as straight forward and as simple as it has hereinabove been represented. Several factors have accounted for why it is not as straight forward and as simple as it has hereinabove been represented.
The most prominent of these factors is that the term ‘rights’ has been a subject of several jurisprudential analysis and theories, one different from another. For instance, while normative jurisprudence of rights seeks to explain the moral foundation of rights and to answer the question, what rights do we really have? Analytical jurisprudence of rights aims at answering the question, what does it mean to have rights? In other words, what does the word ‘rights’ mean?[15] Between the two, that of analytical jurisprudence is preferred, for it is more directly in point, to the issue of the meaning of rights. It ventures to answer the question what are rights, unlike normative jurisprudence that proceeds to determine what rights one could be said to have, without determining first and foremost what is meant by those rights.[16] However even within the preferred analytical jurisprudence of rights, several analysis and theories on rights exist, that are not easily and readily reconcilable, one with another. This work shall expensively analyse two of such theories. While extensively analysing the two theories, reference shall be made to the rights of the Nigerian Child in the Act, with a view to ascertaining whether the rights provided for in the Act are really rights, in view of the notion of scholars of this school of jurisprudence, on what the word ‘rights’ mean.
One of the theories, notably propagated by Hart, is known as the Will Theory on rights. This theory emphasizes will or choice. This theory views the purpose of law as being to grant the widest possible means of self expression to the individual, the maximum degree of individual self-assertion. The theory is closely related to ideas of sovereignty so that the only way of reconciling conflicting wills is by postulating a superior will which can overcome all opposition. It is also closely related to ideas of moral individualism. For this theory, there is a direct relationship between rights and duties, so that a man is said to have a right, if a duty is owed to him. Furthermore and more importantly, a man who is said to have a right must have the power over the duty, so that he can choose to waive it, extinguish it, enforce it or leave it unenforced. These decisions are those of the person who has a right and that is why such a person is said to have the right. According to this theory, the decision to make a choice concerning the duty owed to him according to his discretion is the single most distinctive feature of the concept of rights.[17] By this is therefore meant that right in itself and the essence of possession of it is the power of the holder of it to make a choice on whether or not to waive the duty owed to him[18]. Flowing from the stand point of the theory of will, the ready inference that could be drawn is that, on the reverse, where a person does not have the power to make any of these choices, he does not have the right with respect to the duty concerned.
Against the backdrop of choice as the essential ingredient of right and taking cognizance of all that have been provided for as the rights of the Nigerian Child under the Act, to ascertain whether the said provisions are indeed rights, one must pose and answer the following questions in the affirmative. Does the child have the power to make a choice to waive the performance of the duty owed to him/her or to extinguish the duty or to enforce the duty or to leave the duty, unenforced? Unfortunately, a child may not have the power to make any of these choices, because by virtue of the child’s young age, he/she may be incapable of making any of these choices. If he/she is incapable of making any of these choices then, from the Will Theory, such a child does not have a right, for reason of his/her not having the power to make a choice on the option open to him/her with respect to the duty attendant thereto.
If a child is capable of making any of these choices and makes one, and the choice is the enforcement of the duty, the crucial question becomes, does he/she have the power to enforce it? Enforcement in this context, contemplates legal action. In other words the poser simply becomes, can he/she initiate a suit in a court of law to enforce the performance of the duty? The obvious answer is in the negative. Here again, for reason of not being able to actualize the choice he/she has made, he/she does not have the right to the performance of that duty. Therefore, to the extent to which if a child has made a choice to enforce his/her right he/she cannot enforce it, he/she has no right. What these translate to is this: To the extent to which a Nigerian Child is unable to enforce the duty owed to him by the provisions of the Act, the right attendant to the duty does not exist and accrue to such child.
The way out of this problem of legal procedural incapacitation of the Nigerian Child appears to have been found in the general provision of the procedural law that a child can sue by his next friend (usually the parents or guardian) and the specific provision of the Act, empowering children to be entitled to guardian or guardian ad litem, with powers to initiate suits for and on behalf of such children[19]. However, the problem of legal procedural incapacitation shall certainly remain where it is, if the parent(s) or guardian(s) for any reason at all refuse(s) to litigate on the non performance of the duty owed to the child. If on the other hand the parent(s) or guardian(s) undertake(s) the litigation, the solution to the problem of legal procedural incapacitation shall have been found if the presumption is that the next friend or guardians is/are performing that act that the child would have performed but for reason of being too young to maintain an action in court.[20] In spite of this presumption, the question may still be, was the child the person that was taking the legal steps to enforce his/her rights? The ready answer is in the negative and as long as it is so, the child has not been able to practicalise his/her choice of enforcing the duty owed to him/her and so does not have any right in respect thereto.
From the contention of Will Theory on what rights are, no right exists for the child in the Child’s Rights Act for reason of the child not being able to make a choice and if he/she is so able, for not being able to take legal procedural steps (of litigation) to actualize the choice that he/she has made.
The Will Theory on rights contemplates that the person against whom the right could be claimed or exercised has a duty to perform failure of which shall amount to a breach of the right of the person entitled to benefit from the performance of the duty. It brings to fore, the concept, that the opposite of right is duty. So soon as right is looked upon as having duty as its correlation, one appreciates that right in that context does not wholly and entirely exist on its own. It only exists when the person entitled thereto is desirous of exercising or enjoying it. The reverse therefore is that if the person entitled to the right does not want to exercise it, then no duty has arisen for the person against whom the right is claimed. From this contention of Will Theory, if therefore a child does not want to or more appropriately cannot exercise any of the rights provided for in the Act, such a right does not therefore exist, for no duty has arisen against the person whom the right is claimed.
Another theory of analytical jurisprudence on rights, popularized by MacCormick in the recent past,[21] is the Interest (or benefit) Theory on rights. This theory posits that the purpose of law is to protect certain interests. The theory contends that rights are benefits secured for persons by rules regulating relationships, so that a person can be said to have a right (whether in moral theory or within a legal system) whenever the protection or advancement of an interest of his, is recognized (by moral theory or the legal system, as the case may be) as a reason for imposing obligations, whether they are actually imposed or not.[22]
MacCormick has treated Hart’s theory on rights as false for the simple reason that by Hart’s theory children do not have rights, since they cannot make a choice, when of a fact, it is true and certain that children have rights.
MacCormick’s contention that rights mean the protection of interests, is quite advantageous because one can readily talk of rights in advance of determining exactly who has the duty or spelling out in detail, what is comprised in the duty. However just as the Will theory has the flaw of tying rights to duties (a flaw quickly noticed by MacCormick), the interest (or benefit) theory also has its own flaw of tying rights to benefits. For certain it is not in all cases that rights are tied to benefits.[23] MacCormick has however conceded that a right that accrues to another is a right on its own quite different from the right to perfect that right. In other words, rights are comprised in the rights themselves and the ability to actualize, realize, enjoy or enforce the rights, which may be by litigation. He further concedes that children cannot sue to enforce their rights and need to do so by and through their next friend[24]. This also plunges the interest (benefit) theory of MacCormick into the same problem for which Hart’s Will theory has been criticized: The child having only to sue by and through a next friend, which act though presumed to be that of the child, is not that of the child.
MacCormick has insisted on the existence of rights per se and that it is different from the right to enforce the right. To him, since a child has a right as has been provided for him in the Laws (e.g. as in the Act), the fact that he may lack the procedural right to litigate and actualize same does not make same non-existent. Interesting as this argument sounds, the absence of the procedural rights of a child to actualize the rights provided for him in the substantive law, may frustrate the provisions in the substantive law and make the rights provided therein, non-existent, in practical terms.
Flowing from the above analysis of Will Theory and Interest (benefit) Theory on rights vis-à-vis the rights of the Nigerian Child as provided for in the Act, it does appear as if the fate of both theories are the same: For Will Theory, a Nigerian child has no right under the Act because he cannot make a choice and for Interest (benefit) Theory, a Nigerian child has no right under the Act because his inability to litigate on the substantive rights and realize same translates to absence of the rights in any meaningful and practical sense.
3. Conclusion
The Will Theory postulates that for a right to exist, there must be a duty and the person to whom the duty is owed must have the power to choose what to do or what not to do with respect to the duty. This power of choice, does not reside in a Nigerian child, so that from this theory the Nigerian child has no right under the Act. This Theory cannot be correct. It is rather “preposterous: we known that children have rights”.[25]
The Interest (or benefit) theory states that a right is a benefit protected by law, which law is either substantive, providing for substantive rights or procedural, providing for procedural rights. The theory concedes that children (as in under the Act) have their rights provided for in substantive laws and have procedural rights to enforce the rights in such substantive laws but through parents and guardians. One may contend that to the extent to which the parents or guardians may decline to exercise the procedural rights of the child for the child, the substantive rights may be aborted and become non-existent, in practical terms. Again this theory cannot be correct, for it is certain that children have rights.[26]
By way of conclusion, to the extent to which these theories represent children as having no rights on the face of the certainty that they have, the theories are faulty.
[1] This has explained why Roscoe Pound has this to say: “Jurisprudence is the science of law”. Roscoe Pound (1870-1964) was the Dean of Harvard Law School and founder of American School of Jurisprudence.
Several definitions of Jurisprudence however abound but shall not be dealt with as the definition of Jurisprudence is not the purpose this paper is meant to achieve, so that to delve into the definition of the term “Jurisprudence” would be a distraction.
[2] See Ordinance No. 3 of 1863.
[3] The rights of the Nigerian child under customary law include the right to protection against harm while in the womb; the right to advancement in life (by the parents and the relatives); the right to the procurement of a wife or wives by the parents and relatives and the right to be relieved from burial expenses of the father (by the father in his lifetime, making provisions for his burial). In Nigeria customary law, there is no generally accepted age of childhood. Whether or not a person is child depends on the custom of the area for customary law differs from place to place.
[4] The validity tests are the public policy test, the repugnancy test and the incompatibility test. See generally section 18(3) of the Evidence Act 2011 and the various High Court Laws of the Eastern States e.g. s. 20(1) of Ebonyi State High Court Law, Cap 92 Laws of Ebonyi State of Nigeria, 2009. See respectively, Re Adadevoh (1951) 13 WACA p. 304; Asika v. Atuanya (2008) 17 NWLR (pt. 1117) p. 484 ratio 5 and Re Kweku Damptey (Koddieh v. Affram) (1930) 1 WACA p. 12.
[5] See Cap C. 50 Laws of the Federation of Nigeria, 2004. It shall hereinafter simply be referred to as “the Act”.
[6] See sections 1-10 of the Act.
[7] See Ibid., sections 26-33.
[8] See Ibid., sections 41-62.
[9] See Ibid., sections 82-203
[10] See Ibid., sections 204-237.
[11] See Ibid., sections 247-259.
[12] In the words of A.O. Obilade, “the opinion one holds about law may depend on the angle from which one views it … [for] law is indeed a complex phenomenon”. See A.O. Obilade, The Nigerian Legal System, (London: Sweet & Maxwell 1981), p. 4.
[13]For these definitions of ‘rights’, see Black’s Law Dictionary Sixth Edition, (Massachusetts: West Publishing Co., 1990), pp. 1323-1324.
[14] For these general attributes of rights. See B. Obinna Okere, Law Lecturer, Jurisprudence and Legal Theory, lecture notes, University of Nigeria, Enugu Campus, 1986/87 session, p. 338.
[15] See M.E. Simmonds, Central Issues in Jurisprudence: Justice Law and Rights 2nd Edition, (London: Sweet and Maxwell 2002), p. 254.
[16] However normative jurisprudence on rights is not altogether unmeritorious. This is so for since normative jurisprudence concerns itself with ascertaining the moral foundation of rights, there is therefore the supposition by a normative jurisprudence scholar, that rights must find in them, a moral foundation, so that in the absence of same, what is seen as right is no right.
[17] For the Will Theory, see M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence Eigth Edition, (London: Sweet and Maxwell 2008), p. 394.
[18] See Lloyd, Introduction to Jurisprudence Seventh Edition, (London: Sweet and Maxwell 2001), p.354.
[19] The Act, op cit., sections 82-92, particularly sections 82, 87 and 89.
[20] This presumption has been reinforced by the fact that so soon as the child comes of age, he/she can continue the act or perform the act or perform a completely different act or even refuse to act, without obtaining the leave, consent or authority of the performing parent(s) or guardian(s).
[21] This Theory was first found in the writings of Bentham and adopted by Jhering. Some other persons have in the recent past espoused on this theory. These persons include MacCormick, Raz, Lyons and Campbell.
[22] This is however the notion of rights, from the interest (or benefit) theory, as propounded by MacCormick, Raz and Campbell. Other interest (benefit) theorists conceive of rights as benefits that accrue to a person from the performance of a duty. This is in tandem with the utilitarian terms that all duties are meant to promote some benefit.
Our analysis shall however not delve into the analysis of these set of theorists, to avoid digression and distraction. Our analysis shall be confined to the theory of MacCormick and his likes of Raz and Campbell.
[23] For instance, in the Act, it is the right of a child to acquire universal basic education i.e. primary school and junior secondary school education (see section 15 of the Act). For sure, the interest of the parents of these children might have been advanced but no rights have been conferred on such parents, but on the children.
[24] Op. cit, note 14, p.331.
[25] Apparently wanting to accommodate children, this theory has posited that although the choices are to be made by parents or guardians, the choices so made are not dependent on what the parents or guardians can do but what the children could have done sui juris and also when the children become sui juris, they exercise the power without any need for an assignment of same to them. In other words, the actions of the parents and guardians are not theirs, but of the children through them. For these arguments that tend to accommodate children, as possessing rights, within Hart’s Will Theory, see Op. cit, note 14, p. 332.
[26] Just like in Will Theory, the Interest (or benefit) Theory has tried to accommodate children, as having rights. This it has done by drawing a distinction between substantive rights (which children have) and procedural rights (which children also have but are exercised on their behalf by their parents and guardians) and contending that the right of children exist because they are provided for in the substantive law, they are worth being protected and they are indeed being protected.
1. Introduction:
The introduction of English type of Laws in Nigeria in 1863 by an Ordinance of that year,[2] Nigeria has her customary law on the rights of the Nigerian Child.[3] The introduction of English type of Laws, English Statutes inclusive paved way for the existence of English Laws, side by side, with customary Laws, but that customary Laws apply, subject to passing validity tests.[4] The introduction of English type of Laws in 1863 led to the making of laws in Nigeria, that are of the English type, so that statutory laws were made in Nigeria by Nigerian parliamentarians. The statutory laws so made, include the Children and Young Persons Ordinance of 1943 and more recently, the Child’s Rights Act, 2003.[5] The Act is the basic and principal enactment that contains the rights of the Nigerian child. The Act may however be said to be the only enactment on the rights of the Nigerian Child, for the Act has it in its section 274, that the provisions of the Act supercede the provisions of all enactments relating to children, adoption, fostering, guardianship, wardship, approved institutions, remand centres and borstal institutions and that where any provision of the Act is inconsistent with any of the enactments above mentioned, the enactment(s) shall to the extent of its inconsistency, be void.
In the main, the provisions of the rights of the child as contained in the Act as could be summarized as follows:
i. Rights generally provided for in chapter IV of the constitution of the Federal Republic of Nigeria, under Fundamental Rights.[6]
ii. Right to protection (e.g. from being used for criminal activities of child labour or being bought and or sold or exploited).[7]
iii. Right to care and supervision (e.g. of children who have run out of parental control).[8]
iv. Right to custody (e.g. guardianship, wardship, fostering, adoption and minding).[9]
v. Right to Special Justice Administration (e.g. where inter alia, the identity of a child being tried in the court shall not be made known to the public).[10]
vi. Right to residence in approved institutions and in event of confinement pursuant to Special Justice Administration, right to post-release supervision.[11]
The provision of the rights of the child in the Act is an issue of law and just as law itself has not been able to have a universally accepted definition,[12] all concepts based on law (including rights) are not also capable of a universally accepted definition. Not only do different legal minds ascribe different meanings to rights but legal minds within a group, propound different meanings to rights. For legal minds who are scholars of jurisprudence, differences exist on the meaning of rights. This paper shall review the meaning of rights from some jurisprudence scholars vis-à-vis the rights of the Nigerian child as provided for in the Act and determine whether or not the rights of the Nigerian Child under the Act are in existence.
2. Rights of the Nigerian Child in the Child’s Rights Act: A Jurisprudential Review.
Ordinarily, rights as a noun and taken in an abstract sense could be said to mean justice, ethical correctness or consonance with the rule of law or the principles of morals. In a concrete sense, it could be said to mean power, privilege, faculty or demand inherent in one person and incident on another. It could also be said to be a legally enforceable claim of one person that the other shall do a given act, or shall not do a given act. It further means that, which one person ought to have or receive from another, who may be a person or persons, group or the government.[13] These various ordinary notions of the meaning of the word ‘rights’ are in tandem with what has generally been agreed to be the attributes of ‘rights’: that there must be a holder of the rights, that there must be a person bound by duty to respect the rights, that there must be an act of action or forbearance to which the rights relate, that there must be the subject matter or object of the rights and that there must be a title by which the rights have been vested.[14]
Relating these attributes to the rights as provided for under the Act, the holder of the rights is the Nigerian child, the person bound by duty to obey the rights are the parents, relations, the public and even the government, the arms and the agencies; the act of forbearance to which the rights relate and the subject matter or object of the rights are sufficiently set out in the entire gamut of the Act; while the title by which the rights have been vested is the Act.
For various scholars of jurisprudence, the meaning of rights is not as straight forward and as simple as it has hereinabove been represented. Several factors have accounted for why it is not as straight forward and as simple as it has hereinabove been represented.
The most prominent of these factors is that the term ‘rights’ has been a subject of several jurisprudential analysis and theories, one different from another. For instance, while normative jurisprudence of rights seeks to explain the moral foundation of rights and to answer the question, what rights do we really have? Analytical jurisprudence of rights aims at answering the question, what does it mean to have rights? In other words, what does the word ‘rights’ mean?[15] Between the two, that of analytical jurisprudence is preferred, for it is more directly in point, to the issue of the meaning of rights. It ventures to answer the question what are rights, unlike normative jurisprudence that proceeds to determine what rights one could be said to have, without determining first and foremost what is meant by those rights.[16] However even within the preferred analytical jurisprudence of rights, several analysis and theories on rights exist, that are not easily and readily reconcilable, one with another. This work shall expensively analyse two of such theories. While extensively analysing the two theories, reference shall be made to the rights of the Nigerian Child in the Act, with a view to ascertaining whether the rights provided for in the Act are really rights, in view of the notion of scholars of this school of jurisprudence, on what the word ‘rights’ mean.
One of the theories, notably propagated by Hart, is known as the Will Theory on rights. This theory emphasizes will or choice. This theory views the purpose of law as being to grant the widest possible means of self expression to the individual, the maximum degree of individual self-assertion. The theory is closely related to ideas of sovereignty so that the only way of reconciling conflicting wills is by postulating a superior will which can overcome all opposition. It is also closely related to ideas of moral individualism. For this theory, there is a direct relationship between rights and duties, so that a man is said to have a right, if a duty is owed to him. Furthermore and more importantly, a man who is said to have a right must have the power over the duty, so that he can choose to waive it, extinguish it, enforce it or leave it unenforced. These decisions are those of the person who has a right and that is why such a person is said to have the right. According to this theory, the decision to make a choice concerning the duty owed to him according to his discretion is the single most distinctive feature of the concept of rights.[17] By this is therefore meant that right in itself and the essence of possession of it is the power of the holder of it to make a choice on whether or not to waive the duty owed to him[18]. Flowing from the stand point of the theory of will, the ready inference that could be drawn is that, on the reverse, where a person does not have the power to make any of these choices, he does not have the right with respect to the duty concerned.
Against the backdrop of choice as the essential ingredient of right and taking cognizance of all that have been provided for as the rights of the Nigerian Child under the Act, to ascertain whether the said provisions are indeed rights, one must pose and answer the following questions in the affirmative. Does the child have the power to make a choice to waive the performance of the duty owed to him/her or to extinguish the duty or to enforce the duty or to leave the duty, unenforced? Unfortunately, a child may not have the power to make any of these choices, because by virtue of the child’s young age, he/she may be incapable of making any of these choices. If he/she is incapable of making any of these choices then, from the Will Theory, such a child does not have a right, for reason of his/her not having the power to make a choice on the option open to him/her with respect to the duty attendant thereto.
If a child is capable of making any of these choices and makes one, and the choice is the enforcement of the duty, the crucial question becomes, does he/she have the power to enforce it? Enforcement in this context, contemplates legal action. In other words the poser simply becomes, can he/she initiate a suit in a court of law to enforce the performance of the duty? The obvious answer is in the negative. Here again, for reason of not being able to actualize the choice he/she has made, he/she does not have the right to the performance of that duty. Therefore, to the extent to which if a child has made a choice to enforce his/her right he/she cannot enforce it, he/she has no right. What these translate to is this: To the extent to which a Nigerian Child is unable to enforce the duty owed to him by the provisions of the Act, the right attendant to the duty does not exist and accrue to such child.
The way out of this problem of legal procedural incapacitation of the Nigerian Child appears to have been found in the general provision of the procedural law that a child can sue by his next friend (usually the parents or guardian) and the specific provision of the Act, empowering children to be entitled to guardian or guardian ad litem, with powers to initiate suits for and on behalf of such children[19]. However, the problem of legal procedural incapacitation shall certainly remain where it is, if the parent(s) or guardian(s) for any reason at all refuse(s) to litigate on the non performance of the duty owed to the child. If on the other hand the parent(s) or guardian(s) undertake(s) the litigation, the solution to the problem of legal procedural incapacitation shall have been found if the presumption is that the next friend or guardians is/are performing that act that the child would have performed but for reason of being too young to maintain an action in court.[20] In spite of this presumption, the question may still be, was the child the person that was taking the legal steps to enforce his/her rights? The ready answer is in the negative and as long as it is so, the child has not been able to practicalise his/her choice of enforcing the duty owed to him/her and so does not have any right in respect thereto.
From the contention of Will Theory on what rights are, no right exists for the child in the Child’s Rights Act for reason of the child not being able to make a choice and if he/she is so able, for not being able to take legal procedural steps (of litigation) to actualize the choice that he/she has made.
The Will Theory on rights contemplates that the person against whom the right could be claimed or exercised has a duty to perform failure of which shall amount to a breach of the right of the person entitled to benefit from the performance of the duty. It brings to fore, the concept, that the opposite of right is duty. So soon as right is looked upon as having duty as its correlation, one appreciates that right in that context does not wholly and entirely exist on its own. It only exists when the person entitled thereto is desirous of exercising or enjoying it. The reverse therefore is that if the person entitled to the right does not want to exercise it, then no duty has arisen for the person against whom the right is claimed. From this contention of Will Theory, if therefore a child does not want to or more appropriately cannot exercise any of the rights provided for in the Act, such a right does not therefore exist, for no duty has arisen against the person whom the right is claimed.
Another theory of analytical jurisprudence on rights, popularized by MacCormick in the recent past,[21] is the Interest (or benefit) Theory on rights. This theory posits that the purpose of law is to protect certain interests. The theory contends that rights are benefits secured for persons by rules regulating relationships, so that a person can be said to have a right (whether in moral theory or within a legal system) whenever the protection or advancement of an interest of his, is recognized (by moral theory or the legal system, as the case may be) as a reason for imposing obligations, whether they are actually imposed or not.[22]
MacCormick has treated Hart’s theory on rights as false for the simple reason that by Hart’s theory children do not have rights, since they cannot make a choice, when of a fact, it is true and certain that children have rights.
MacCormick’s contention that rights mean the protection of interests, is quite advantageous because one can readily talk of rights in advance of determining exactly who has the duty or spelling out in detail, what is comprised in the duty. However just as the Will theory has the flaw of tying rights to duties (a flaw quickly noticed by MacCormick), the interest (or benefit) theory also has its own flaw of tying rights to benefits. For certain it is not in all cases that rights are tied to benefits.[23] MacCormick has however conceded that a right that accrues to another is a right on its own quite different from the right to perfect that right. In other words, rights are comprised in the rights themselves and the ability to actualize, realize, enjoy or enforce the rights, which may be by litigation. He further concedes that children cannot sue to enforce their rights and need to do so by and through their next friend[24]. This also plunges the interest (benefit) theory of MacCormick into the same problem for which Hart’s Will theory has been criticized: The child having only to sue by and through a next friend, which act though presumed to be that of the child, is not that of the child.
MacCormick has insisted on the existence of rights per se and that it is different from the right to enforce the right. To him, since a child has a right as has been provided for him in the Laws (e.g. as in the Act), the fact that he may lack the procedural right to litigate and actualize same does not make same non-existent. Interesting as this argument sounds, the absence of the procedural rights of a child to actualize the rights provided for him in the substantive law, may frustrate the provisions in the substantive law and make the rights provided therein, non-existent, in practical terms.
Flowing from the above analysis of Will Theory and Interest (benefit) Theory on rights vis-à-vis the rights of the Nigerian Child as provided for in the Act, it does appear as if the fate of both theories are the same: For Will Theory, a Nigerian child has no right under the Act because he cannot make a choice and for Interest (benefit) Theory, a Nigerian child has no right under the Act because his inability to litigate on the substantive rights and realize same translates to absence of the rights in any meaningful and practical sense.
3. Conclusion
The Will Theory postulates that for a right to exist, there must be a duty and the person to whom the duty is owed must have the power to choose what to do or what not to do with respect to the duty. This power of choice, does not reside in a Nigerian child, so that from this theory the Nigerian child has no right under the Act. This Theory cannot be correct. It is rather “preposterous: we known that children have rights”.[25]
The Interest (or benefit) theory states that a right is a benefit protected by law, which law is either substantive, providing for substantive rights or procedural, providing for procedural rights. The theory concedes that children (as in under the Act) have their rights provided for in substantive laws and have procedural rights to enforce the rights in such substantive laws but through parents and guardians. One may contend that to the extent to which the parents or guardians may decline to exercise the procedural rights of the child for the child, the substantive rights may be aborted and become non-existent, in practical terms. Again this theory cannot be correct, for it is certain that children have rights.[26]
By way of conclusion, to the extent to which these theories represent children as having no rights on the face of the certainty that they have, the theories are faulty.
[1] This has explained why Roscoe Pound has this to say: “Jurisprudence is the science of law”. Roscoe Pound (1870-1964) was the Dean of Harvard Law School and founder of American School of Jurisprudence.
Several definitions of Jurisprudence however abound but shall not be dealt with as the definition of Jurisprudence is not the purpose this paper is meant to achieve, so that to delve into the definition of the term “Jurisprudence” would be a distraction.
[2] See Ordinance No. 3 of 1863.
[3] The rights of the Nigerian child under customary law include the right to protection against harm while in the womb; the right to advancement in life (by the parents and the relatives); the right to the procurement of a wife or wives by the parents and relatives and the right to be relieved from burial expenses of the father (by the father in his lifetime, making provisions for his burial). In Nigeria customary law, there is no generally accepted age of childhood. Whether or not a person is child depends on the custom of the area for customary law differs from place to place.
[4] The validity tests are the public policy test, the repugnancy test and the incompatibility test. See generally section 18(3) of the Evidence Act 2011 and the various High Court Laws of the Eastern States e.g. s. 20(1) of Ebonyi State High Court Law, Cap 92 Laws of Ebonyi State of Nigeria, 2009. See respectively, Re Adadevoh (1951) 13 WACA p. 304; Asika v. Atuanya (2008) 17 NWLR (pt. 1117) p. 484 ratio 5 and Re Kweku Damptey (Koddieh v. Affram) (1930) 1 WACA p. 12.
[5] See Cap C. 50 Laws of the Federation of Nigeria, 2004. It shall hereinafter simply be referred to as “the Act”.
[6] See sections 1-10 of the Act.
[7] See Ibid., sections 26-33.
[8] See Ibid., sections 41-62.
[9] See Ibid., sections 82-203
[10] See Ibid., sections 204-237.
[11] See Ibid., sections 247-259.
[12] In the words of A.O. Obilade, “the opinion one holds about law may depend on the angle from which one views it … [for] law is indeed a complex phenomenon”. See A.O. Obilade, The Nigerian Legal System, (London: Sweet & Maxwell 1981), p. 4.
[13]For these definitions of ‘rights’, see Black’s Law Dictionary Sixth Edition, (Massachusetts: West Publishing Co., 1990), pp. 1323-1324.
[14] For these general attributes of rights. See B. Obinna Okere, Law Lecturer, Jurisprudence and Legal Theory, lecture notes, University of Nigeria, Enugu Campus, 1986/87 session, p. 338.
[15] See M.E. Simmonds, Central Issues in Jurisprudence: Justice Law and Rights 2nd Edition, (London: Sweet and Maxwell 2002), p. 254.
[16] However normative jurisprudence on rights is not altogether unmeritorious. This is so for since normative jurisprudence concerns itself with ascertaining the moral foundation of rights, there is therefore the supposition by a normative jurisprudence scholar, that rights must find in them, a moral foundation, so that in the absence of same, what is seen as right is no right.
[17] For the Will Theory, see M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence Eigth Edition, (London: Sweet and Maxwell 2008), p. 394.
[18] See Lloyd, Introduction to Jurisprudence Seventh Edition, (London: Sweet and Maxwell 2001), p.354.
[19] The Act, op cit., sections 82-92, particularly sections 82, 87 and 89.
[20] This presumption has been reinforced by the fact that so soon as the child comes of age, he/she can continue the act or perform the act or perform a completely different act or even refuse to act, without obtaining the leave, consent or authority of the performing parent(s) or guardian(s).
[21] This Theory was first found in the writings of Bentham and adopted by Jhering. Some other persons have in the recent past espoused on this theory. These persons include MacCormick, Raz, Lyons and Campbell.
[22] This is however the notion of rights, from the interest (or benefit) theory, as propounded by MacCormick, Raz and Campbell. Other interest (benefit) theorists conceive of rights as benefits that accrue to a person from the performance of a duty. This is in tandem with the utilitarian terms that all duties are meant to promote some benefit.
Our analysis shall however not delve into the analysis of these set of theorists, to avoid digression and distraction. Our analysis shall be confined to the theory of MacCormick and his likes of Raz and Campbell.
[23] For instance, in the Act, it is the right of a child to acquire universal basic education i.e. primary school and junior secondary school education (see section 15 of the Act). For sure, the interest of the parents of these children might have been advanced but no rights have been conferred on such parents, but on the children.
[24] Op. cit, note 14, p.331.
[25] Apparently wanting to accommodate children, this theory has posited that although the choices are to be made by parents or guardians, the choices so made are not dependent on what the parents or guardians can do but what the children could have done sui juris and also when the children become sui juris, they exercise the power without any need for an assignment of same to them. In other words, the actions of the parents and guardians are not theirs, but of the children through them. For these arguments that tend to accommodate children, as possessing rights, within Hart’s Will Theory, see Op. cit, note 14, p. 332.
[26] Just like in Will Theory, the Interest (or benefit) Theory has tried to accommodate children, as having rights. This it has done by drawing a distinction between substantive rights (which children have) and procedural rights (which children also have but are exercised on their behalf by their parents and guardians) and contending that the right of children exist because they are provided for in the substantive law, they are worth being protected and they are indeed being protected.