“An Evaluation of the Impact of the Child Rights Act in Regulating the Rights of a Child in Nigeria” by the Hon. Zaynab Bashir
It has been nearly 18 years since Nigeria passed into law the Child Rights Act of 2003 which contains lofty aspirations and stipulated beneficial provisions for the Nigerian child. The rights contained in the Child Rights Acts and the intention of care and protection for the Nigerian child by the Act is not distanced from that which is intended for children of other parts of the word. This is because the foundation for the Child Rights Act are Conventions applicable to many other countries both regionally and internationally. At the international level, the United Nations Convention on the Rights of the Child (CRC) which was adopted in 1989 formed the basis upon which the United Nations attempted to make a consolidation of the international law on the basic rights of the child. It is from the said convention that the Nigerian federal legislators derived the many well-thought provisions of the Child Rights Act. At the regional level, the African Charter on the Rights and Welfare of the Child also played a vital role in the coming to life of the Child Rights Act.
In the face of the provisions of the Child Rights Act, there is no gainsaying that the Act has intended the best life for the Nigerian Child. The question that however arises is to what extent has the life of the Nigerian child been impacted by the provisions of the Act to make for a change in the narrative of an average Nigerian child whose life is not hitherto guaranteed nor assured of a daily meal nor proper shelter.
This paper therefore presents an evaluation of the impact of the Child Rights Act in regulating and protecting the rights of a child in Nigeria particularly in specific areas such as, child labour, criminal justice administration of a child and regulation of cultural and religious practices that negatively affects the welfare and wellbeing of the Nigerian child.
Background to the Enactment of the Child Rights Act
Tracing the history of child rights and child protection to the colonial period in Nigeria, it was observed that the issue of child protection was nonexistent in Nigeria for a long time and that during the colonial rule, the welfare of the Nigerian child was not particularly, a major concern to the colonial master.
Although it must be reckoned that during the said colonial period, there had been enacted the Criminal Code Act which regulates penalties for offences committed by citizens including children. Also, the Prison Ordinance of 1917 makes provision for the separation of children of below fourteen years from adult prisoners.
With regards to criminal justice administration of a child, the first attempt geared towards child protection in Nigeria, was in 1943, when the Children and Young Persons’ Act (CYPA) was promulgated for application in any part of the Protectorate of Nigeria on the order of the Governor-in-council. The said Children and Young Persons Act was not an elaborate and far from an all-encompassing law for the protection of child rights. Rather, it was limited in scope as it merely regulates the criminal proceedings involving a child. In other words, the Children and Young Persons Act was promulgated to make provisions for the welfare of the young and the treatment of young offenders before the established juvenile courts.
Going forward, the United Nations Convention on the Rights of a Child which was the springboard for the Child Rights Act was adopted in 1989 and the said convention with 54 articles have today been ratified by 196 countries with only 1 country still to ratify.
In ratifying the Convention of rights of the Child, it is recounted that Nigeria submitted its first report on the implementation of the Child Rights Convention to the United Nation Committee on the Rights of the Child in 1996 and One of the major recommendations made by the committee was to finally ensure the domestication of the Child Rights Convention, as it was necessary for its full implementation under Nigeria law. For want of emphasis, the Constitution of Federal Republic of Nigeria 1999 (as amended) require the ratification of an international law before same will become operative in Nigeria.
The narrative further points that a first bill on children’s rights had already been elaborately drafted and proposed in 1993, but could not be passed into law by the military government because of opposition from religious groups and traditionalists which led to the setting up of a special Committee charged with the duty to “harmonize the children’s bill with Nigerian religious and customary beliefs”. The Bill, providing for the rights and the responsibilities of children in Nigeria, as well as for a renewed system of juvenile justice administration, was rejected by the parliament in October 2002 on religious and cultural grounds.
It was also gathered that main objection was targeted at a provision setting 18 years as the minimum age for marriage as same was considered incompatible with religious and cultural traditions in various parts of the country, where girls are given in marriage at a younger age.
It was perhaps on the basis of the said objection that many national and international Non-Governmental Organizations, as well as other sectors of the civil society in Nigeria, criticized the rejection of the Bill and forced the legislators to reconsider its decision to oppose to the Child’s Right Bill.
Eventually, the Child Right Act was passed into law in July 2003. However, the Act being a federal law does not automatically become applicable or operative in the 36 states of the Federation and therefore, each state is required to re-enact the said Act as a state law within its territory as matters of child right is not on any of the legislative list of the Constitution. In addition, being a domestication of international treaties, the Child Rights Act cannot be imposed on States by virtue of section 12 (3) of the Constitution of Nigeria, 1999, which requires that the bill for such laws must have been ratified by all the States of the Federation before becoming law. The bill for the Child Rights Act was neither ratified nor consented to by the States of the Federation before its enactment, hence the need to adopt the Child Rights Act and enact similar laws by the States’ Houses of Assembly.
Currently, there are only 25 states of the Federation that have adopted the Child Rights Act and enacted same for their respective states while the 11 other states are still under the operation of outdated, archaic and inadequate laws such as the Children and Young Persons Law of such states promulgated by the British government. This is not only dysfunctional but anachronistic, making it increasingly difficult for the Nigerian child to be adequately protected.
Evaluation of the Impact of the Child Rights Act
In conducting an evaluation of the impact of the Child Rights Act, it must be said that prior to the coming to force of the Child Rights Act, there existed in disconnect, several laws relating to the Child. For instance, there exists customary laws under which the age of contract by a child was said to be upon attainment of puberty; the Criminal Code fixes the minimum age of criminal responsibility at 7 and makes provision for canning a child who is below 17 found guilty of an offence but shall not be sentenced to death. These dissimilarities are the bane of proper administration of child rights in Nigeria and it is to this extent that this paper shall consider three important areas which the Child Rights Act have grappled with in terms of having an impact in regulating child rights in Nigeria.
1. Criminal Justice Administration of the Child
As innocent as a child may seem, there are those found wanting in terms of deviancy and delinquency. That notwithstanding, the treatment to be meted out on a child who is found guilty of delinquency must be different from that of an adult in view of the fact that children are generally considered to be vulnerable, immature emotionally, psychologically and physically and should therefore, not be exposed to the formal criminal process. What a child in fact needs is a correction rather than punishment.
Although it had been long attempted to separate the criminal proceeding involving a child from that of an adult as was for several years done under the Children and Young Persons Act. However, the lack of harmony in the various criminal laws and procedures made the administration of criminal justice for children dysfunctional and ineffective. For instance, while the Criminal Code at section 30 was specific as to the minimum age for criminal responsibility to be age 7, the Penal Code stipulated that “No act is an offence which is done by a child under seven years of age; or by a child above seven years of age but under twelve years of age who has not attained sufficient maturity of understanding to judge the nature and consequence of such act.
In the same vein of disharmony, the Children and Young Persons Act, enacted in Eastern, Western and Northern regions of Nigeria provides made a distinction between a child and young person by providing that a ‘child’ means a person under the age of fourteen years, while ‘young person’ means a person who has attained the age of fourteen years and is under the age of seventeen years. In line with this categorization, a Young person having attained the age of 17 can be sentenced to death in view of the fact that section 12 of the Children and young Person Law prohibits the pronouncement of death sentence against a juvenile who has not attained the age of 17. The Act also failed to make clear whether it is the age at the time of commission of the crime that must be considered or at the time of sentence and the failure created uneven results as seen in the cases of Modupe v State and Garuba & Ors v Attorney General of Lagos State.
The foregoing discrepancies were simply put aside by the Child Rights Act which defines a child as a person under the age of 18 and makes no categorization of a certain age as young person. The implication of which is that a person under the age of 18 can no longer be sentenced to death.
In attempt to change the way child justice administration is carried out, the Child Rights Act in Part XX (sections 204 -238) of the Act has provided for Child Justice Administration, which is to effectively replace the Juvenile Justice Administration under the Children and Young Persons Law. The provisions in this part now prohibit the subjection of any child to the criminal justice process, and guarantees the due process to any child subjected to the Child Justice system under the Act at all stages of investigation, adjudication, and disposition of the child. In this regard, the Act has sought to apply the principles contained in the UN Standard Minimum Rules for the Administration of Juvenile Justice (otherwise known as the Beijing Rules) in Child Justice Administration in Nigeria. The Act specifically stated thus: “No child shall be subjected to the criminal justice process or to criminal sanctions, but a child alleged to have committed an act which would constitute a criminal offence if he were an adult shall be subjected only to the child justice system and processes set out in this Act”.
The provisions of the said part of the Act are indeed laudable as it demands a duty of every personnel involved in the process of the administration of criminal justice to be efficient and properly skilled while being possessed of the professional education and training required in handling criminal proceeding involving a child.
The Act specifically provided for the establishment of a Family court which possesses civil and criminal jurisdiction to entertain matters involving children while the Act goes further to state the step by step procedure for handling a criminal case in the court. The Act also provides for the establishment of a specialised unit of the Police Force, to be known as the Specialised Children Police Unit. The said specialized unit are expected to be manned by police officers who are specially trained to handle criminal cases involving children.
In addition to the foregoing, the Child Rights Act provides for diversionary measures. That is, measures for dealing with children alleged or accused of infringing the penal law without resorting to judicial proceedings. Under this section, the police, prosecutor or any other person dealing with a case involving a child offender has the power to dispose of the case by settling the case without resorting to formal trial by using other means of settlement that includes supervision, guidance, restitution and compensation of victims. They are also to encourage parties to settle the dispute if the case is for an offence of a non-serious nature and if there is a need for reconciliation; or the family, school or other institution involved has reacted or is likely to react in an appropriate manner; or if they think it appropriate in the interest of the child offender and the parties involved.
On a general note, the provisions of the Child Rights Act on Child Justice Administration is a lot more holistic and if given the necessary drive for implementation will go a long way in making the administration of criminal justice involving children functional and effective.
2. Regulation of Cultural and Religious Practices
Putting the revolutionary provisions of the Child Rights Act into perspective, there is no gainsaying that the toughest challenge which the implementation of the act will face is the deep rooted religious and cultural practices which the Act seem to attempt to eradicate.
Generally, culture and religion have their vantage points in raising the Nigerian child. However, there are certain cultural and religious practices which tends to endanger the life of the child which the Act seeks to protect.
It is no wonder why it is gathered that no sooner than the Child Right Act was ratified in Nigeria, that the Supreme Council for Shari’ah in Nigeria (SCSN), protested the attempt of the country’s federal government to impose the Child’s Rights Act, passed by the National Assembly in 2003, on state Assemblies. According to the SCSN, “Any law that seeks to give equal rights to male and female children in inheritance, seeks to give an illegitimate child the same rights as the legitimate one, and establish a court (family court) that ousts the jurisdiction of Shari’a courts on all matters affecting children, is unacceptable to Muslims”.
Threading the cultural and religious lines, it is no wonder why the 11 states that are yet to adopt the Child Rights Act are from the 12 Shari’ah implementing states in the Northern part of Nigeria and it is not far fetched to find that the failure of adoption is due to religious reasons.
Culturally, there are several practices including early child marriages, tribal marks engraving on a child, female genital mutilation, denial of right to inheritance and several other practices that tend to have deep rooted foundation in the cultures of different tribes in Nigeria. It is in the light of the forgoing that the impact of the Child Rights Act is to be considered in terms of changing the religious and cultural narratives.
To that extent, with regards to child marriages, it is reckoned that poverty is one of the factors fueling child marriages as many Nigerian societies, especially in the rural areas live below poverty line and one of the means of survival that is usually within the disposal of most parents is their child or children particularly girl children. It is added that while many of the parents give their girl children out in marriage, others push their children into child prostitution, child labour among others.
It must be said that no excuse or reason can justify the scourge of the child marriage as it is established that pregnancies-related deaths are the leading cause of mortality in 15-19 years old girls. In view of the said scourge, it is praiseworthy that the Child Rights Act has now prohibited child betrothal and marriage as the Act stipulates that no person under the age of 18 years is capable of contracting a valid marriage, and accordingly, a marriage so contracted is null and void of no effect whatsoever. The Act takes one step further to also provide sanctions of fine in the sum of N500,000.00 or five years imprisonment or both for any person who married a child; or to whom a child is betrothed; or who promotes the marriage of a child; or who betroths a child.
In view of the provision of the Marriage Act which allows a person under the age of 21 to get married subject to consent of the parent, it would now mean that the ‘under the age of 21’ cannot be stretched further less than the age of 18.
Notwithstanding the laudable provision of the Act, it is reported that the practice is still widely rampant in Nigeria and in 2009, 2 girls of the ages of 12 and 18 were married off and taken to their husbands without their knowledge.
With regards to female genital mutilation, it is observed that the practice is still recurrent in southern and eastern zones of Nigeria while the engraving of tattoos and tribal marks are considered to be typical of the Western part of the country. In the face of the grave havoc such practice causes to the child, the Child Rights Act has now prohibited such practice by stipulating that a person who tattoos or makes a skin mark on a child commits an offence under the Act and is liable on conviction to a fine not exceeding five thousand naira or imprisonment for a term not exceeding one month or to both such fine and imprisonment.
Although the criminalization of the act of inflicting tattoos and marks on a child is laudable, it must be said that the maximum sum of N5,000.00 as fine may not be potent enough to deter the entrenched practice.
3. Child Labour and Economic Manipulation
It is without doubt that poverty is the harbinger of child labour. However, some cases of child labour has transcended to a level of economic exploitation as adults now engage in using children to generate revenue either by using them to carry out sale of goods or begging for alms.
It is reported that Nigeria with about two hundred million population has child labour accounting for 20-30% of the population and in urban areas, such as Lagos, 1.1 million working children are less than 15 years of age as is evident in the increased number of street children, child hawkers, child sex workers and child beggars.
It was observed that in Lagos State, child laborers are easy to source and cheap: first, child laborers are often from the rural area, conflict zones like Niger Delta, Plateau State, Benue and other Boko Haram terrorists’ ravage region while many child laborers moved to cities because their regions have been affected by draught, flood, landslide and famine, for instance, natural disaster force Fulani herdsmen to migrate from the Niger and the Chad to Nigeria.
In the face of the prevalence of child labour in Nigeria, especially as the street hawking and begging are concerned, it was indeed imperative for the Child Rights Act to provide as it did, a specific prohibition of child labour. In this regard, section 28 (1) and (2) provides thus:
(1) Subject to this Act, no child shall be:
(a) Subjected to any forced or exploitative labor; or
(b) employed to work in any capacity except where he is employed by a member of his family on light work of an agricultural, horticultural or domestic character approved by the Commissioner; or
(c) required, in any case, to lift, carry or move anything so heavy as to be likely to adversely affect his physical, mental, spiritual, moral or social development; or
(d) employed as a domestic help outside his own home or family environment.
(2) No child shall be employed or work in an industrial undertaking and nothing in this subsection shall apply to work done by children in technical schools or similar approved institutions if the work is supervised by the appropriate authority.
The Act goes a step further to also provide punishment for any person who violates the prohibition of child labour by providing that any person who contravenes any provision of subsection (1) or (2) of this section commits an offence and is liable on conviction to a fine not exceeding fifty thousand naira or imprisonment for a term of five years or to both such fine and imprisonment.
Impediments to the Full Impact of the Child Rights Act in Nigeria
Arising from the foregoing, there is no gainsaying that the full impact of the Child Rights Act is yet to be felt as cases of child marriages, child labour and other several forms of child right abuse are still prevalent in the Nigerian Society. The said prevalence is attributable to several factors which include:
- LACK OF PROPER POLICY THAT CAN ERADICATE POVERTY: while the labour Act is merely a law, it must be said that there are certain foundational issues which breeds the challenges faced by the Nigerian child such as poverty which is fueled by the terrible economic setting of the country. In this regard, where the parent of a child cannot afford to provide basic needs of the child, it becomes an avenue for the parent to send the child off to several other undignifying means for survival. As long as poverty level continues to rise, it is difficult to see how the sufferings of the Nigerian child will come to an end.
- UNHEALTHY ADHERENCE TO CULTURE AND RELIGIOUS BIAS: notwithstanding the provisions of the Child rights Act, the culture of child betrothal, female genital mutilation and infliction of tribal marks still persists as many folks refuse to give up such practice. In addition, there is the debate as to whether the Islamic religion opposes setting the age of eighteen years as marriageable age and also the issue of corporal punishments as prescribed under the Shariah Penal Codes of a significant number of states in the Northern part of the Country.
- LACK OF POLITICAL WILL ON THE PART OF GOVERNMENT: The failure of creation of institutions by the government and the training of personnel who would run the institutions which can effectively bring about the full implementation of the lofty ideals proffered by the Act is also a huge hindering factor in achieving the full implementation of the Child Rights Act and complete eradication of all forms of child right abuses which the Act attempts to eradicate. It is befuddling to find many children on the streets of FCT, Abuja being involved in one form of child labour or the other including begging for alms.
In view of the impediments to actualizing a full implementation of the Child Rights Act in the regulation of the rights of the Nigerian Child, the following recommendations are accordingly proffered.
- Introduction and implementation of a robust poverty eradication program: this along with educational and health care programs and provision of necessary social amenities will go a long way in supporting parents who are living hand to mouth and perhaps boost their sense of responsibilities towards their children.
- Recurrent Grassroot Orientation on the rights of a Child: this can help those who are still clinging to the cultural orientation at the most remote villages and towns across the country to change their ways.
- Harmonization of other statutes relating to the child: laws including the Immigration Act which refers to persons below the age of 16 as minors while the Matrimonial Causes Act stipulates the age of majority as 21 all need to align with the provisions of the Child Rights Act.
- Setting up of all institutions as required by the Act: Institutions such as the Family Court and the Specialised Children Police Unit for the investigation and handling of criminal cases involving a child. In addition to the specialized unit of police which is intended to be stationed, there should be set up a mobile unit of the same police force to keep the general public in the regular mindfulness of how serious the government takes the case of child right abuse.
- The domestication of the Child Rights Act 2003 in all 36 states of the Federation cannot be overemphasized as the Child Rights Act is compatible, relevant and in the best interest of the Nigerian child.
This paper has attempted an evaluation of the Impact of the Child Rights Act in regulating the rights of a child in Nigeria. It is found that the inhibitions to the full implementation of the Child Rights Act has been in existence even prior to the coming into force of the Act. Issues including the cultural and religious biases have been so entrenched in the Nigerian legal regime that it will take strategic and recurrent effort to bring about a gradual change of the situation.
The article was written by IAWJ member, Justice Zaynab Bashir. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.