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Unraveling Some Knotty Areas in the Child’s Right Act By Musa Usman Abubakar Global Network for Islamic Justice, Nigeria
1.0 Introduction
The passage of Child’s Rights Act (herein referred to as the Act) on 31st May 2003 and its subsequent coming into force on 31st July that same year has polarized the Nigerian public into camps. To some it was a long awaited move and advocated wholesale implementation of the Act. Another group called for it outright rejection describing it as Western imposition of a universal culture on the rest of the world, which must be resisted at all cost. Yet some adopted a middle course, accepting the Act with amend to reflect multi-cultured nature of Nigeria.
As debate on the Act is now on at the state level, this paper seeks to explore the provisions of the Act with a view to highlighting some areas of concern to Nigerians, particularly Muslims, with the view to sensitizing the public and to guide the stakeholders in their deliberations. It emphasizes the necessity of considering the multi-cultured and multi-religious nature of Nigeria for smooth operation of the law, and wonders why the Convention on the Rights of the Child 1989 enjoys near universal ratification on the one hand, with only USA and Somalia not state parties. On the other, the Child Rights Act 2003 is still unpopular in Nigeria judging from lack of enthusiasm to implement it. The paper posits that the Act appears to adopt a monolithic approach without regard to multicultural and multi-religious nature of the country. It further posits that the Act though a step in the right direction need to be revisited to ensure its practicability and enforceability.
The paper is divided into 5 sections. Section 1 introduces the paper while section 2 gives a brief historical background to child’s rights with the view to ascertaining how children fared in the past. Section 3 features discussion on how Nigeria’s international obligation on child’s rights is domesticated. Section 4 undertakes an overview of the Child |Rights Act 2003 paying special attention to some controversial provisions in the Act. Section 5 concludes it.
2.0 Child Rights Struggle at the International Level
Child’s rights have not had long history of recognition. Children around the world suffered appalling abuses and exploitations from antiquity. Exploitation and authoritarianism characterized the societal attitude to children. Parents had absolute control over their children. They had unfettered rights over the child’s person, property and earnings, based on the antiquated notion that children were human chattels. This unfettered power of parents over their children extended to the rights to inflict death in certain circumstances. The law did not provide any protection for children subjected to parental cruelty. In essence, it provided positive reinforcement for parental authority in form of severe sanction for filial recalcitrance, including in some instance even to death penalty.
Islam has played very significant role in freeing children from such brutalities. It is also commonplace that Prophet Muhammad (SAW) enjoins Muslims to find better mothers for their children even before they are born. Islam entitles the child to a descent name, education, equal treatment and right to own property, right to inheritance, recreational activities, etc.
At common law, children’s rights were accorded recognition only in the 17th century when Elizabeth I proclaimed the second poor law of 1601. The law placed children under the care of their parents and close relatives, and empowered the children to seek legal redress. It also imposed corresponding duty on children to cater for their parents and close relatives. In 1660, a further measure in this direction was taken when the protective jurisdiction, which was originally vested in the king, was given to the English Court of Chancery. The jurisdiction was elaborate enough comprising everything required in the interest of the child.
In America, the idea came up three years after the 1776 Declaration of Independence, when in 1779, Hannah More wrote about the necessity for enlightening the world with thoughts about the rights of youngsters, children and babies as the next step.
History will never forget the endeavours of the likes of Eglantyre Jebb (1879-1928) a British woman, who founded the Save-the-Children- Fund and through whose instrumentality the draft of Geneva Declaration of 1924 was made, which declares that “mankind owes to the child the best it has to give.” The adoption of the Geneva Declaration by the League of Nations later culminated into the United Nations Declarations on the Rights of the Child of 1959.
The 1979 was also a turning point in this struggle as it was the International Year of the Child. Poland proposed that a treaty aimed at giving legal force to children’s rights mark the event. Ten years thereafter, the United Nations General Assembly on November 20, 1989 via Resolution No.: A/RES/44/25 adopted the Convention on the Rights of Child (CRC). It entered into force on September 7, 1990, the year the World Summit for children was held. The Summit held in New York had the attendance of 71 heads of state and government. The summit pledged thus: “The well-being of children requires political action at the highest level. We are determined to take that action. We ourselves make a solemn commitment to give priority to the rights of children”.
Similarly, at the regional level, African Head of States adopted the African Charter on the Rights and Welfare of the Child on July11, 1990 via resolution No.: OAU DEC. CAB/LEG/TSG/REV. 1, and entered into force on November 28, 1999.
3.1 Nigeria’s Obligation on the International Plane
It is worth noting that Nigeria is a signatory to many international treaties having direct bearing on children. These include: the United Nations Convention on the Rights of the Child (hereinafter referred to as CRC), the United Nations Convention on the Elimination of all Forms of Discrimination against Women (hereinafter referred to as CEDAW), the African Charter on the Rights and Welfare of the Child (hereinafter referred to as ACRWC), ILO Convention on the Elimination of Worst Forms of Child Labour (hereinafter referred to as CLC), etc. No reservation was entered by Nigeria with respect to any of these instruments, thus making it duty bound to observe them to the later.
3.2 Constitutional Requirement for Implementing International Treaties
Depending on the constitutional arrangement of a state party, a treaty will not have the force of law unless the constitutional requirement for its implementation is observed. In Nigeria, international treaties require domestication in accordance with Section 12 of the 1999 Constitution of the Federal Republic of Nigeria. The Section reads:
Section 12-(1) No treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.
2) The National Assembly may make laws for the federation or any part thereof with respect to matters not included in the exclusive legislative list for the purposes of implementing the treaty.
3) A bill for an Act of National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent unless it is ratified by a majority of all the Houses of Assembly in the Federation.
It is not in doubt that a treaty dealing with children does not fall within the exclusive legislative list to warrant its domestication by the National Assembly without the blessing of state legislature. As such, for the Act to have general application section 12 (3) of the Constitution must be satisfied.
Given that, it has already been assented by the President without observing the above provision; the application of the Act may now be limited to the Federal Capital Territory, Abuja in view of section 299 of the Constitution. The implication is that individual states may consider enacting their child’s rights laws without necessarily adopting the provision of the Act lock, stock and barrel. Perhaps the President chose to avoid the apparent resistance from some quarters and to facilitate smooth passage of the Act through State Houses of Assembly. Each state will now consider its peculiarities and pass the law that is in consonance with its religious and cultural setting.
The enactment of the Act could be viewed as another way of making justifiable by legislation a declared state policy i.e. ‘protecting children and young persons against exploitation, moral and material neglect.’ From this perspective, both the National and State Assemblies have concurrent powers to make laws to protect children. Problem may arise where state law contradicts the Act since the latter takes precedence. The Act could be said to cover the field. But given that most legislation on children are state-based, can the National Assembly arrogate to itself blanket power to legislate on every issue affecting the Federation on the pretence that it is doing so ‘‘for the peace, order and good government of the Federation’’?
4.1 Overview of the Child’s Rights Act 2003
The Act is an agglomeration of many international conventions and seeks to amend, consolidate and unify all Nigerian legislation relating to children in terms of their protection and welfare. The Act has 278 Sections. It creates rights for children and corresponding duties of obedience and respect on children. To allay the fears of those who consider any attempt at giving children rights as a threat to parental control, the Act imposes on the parents the duty of providing guidance, discipline, education, socialization and training. It likewise makes a child duty bound to be respectful and obedient to his parents, superiors and elders.
The created rights include: right to free, compulsory universal basic education, right to health and health services (covering the unborn child), right to name, right to parental care, protection and maintenance etc. They are mainly socio-economic rights hitherto not enjoyed by any person in Nigeria, as they are couched not as rights but as directive principles of state policy. The Act now provides that children must enjoy them as of right. Indeed the wisdom behind fusion of the two generations of rights in the CRC is achieved in Nigeria, and in the words of Peter Veerman:
…an advantage of the United Nations Convention on the Rights of the Child is that the States who have not ratified the Covenant on Civil and Political Rights and the Covenant on the Economic, Social and Cultural Rights and would not accord the rights set therein or in other instruments (like the Geneva Convention on International Humanitarian Law) might still be ready or persuaded to accord those rights at least to children.
Protective and participatory rights created by the Act includes right to protection against abuse and exploitation, right to leisure, recreation and cultural activities, right to freedom from discrimination, right to dignity of the child, etc .
It is noteworthy that most of these rights are not absolute they are subject to parental guidance, direction, control or supervision.
The Act pegs the age of majority at 18 years. It proscribes child marriage and betrothal, use of children in criminal activities, exposure of children to drugs, exploitative labour, abduction, buying, selling, hiring for the purposes of begging for alms, prostitution, etc. Prohibited also by the Act are scarification and tattooing, recruitment of children into the Armed forces, importation of harmful publication, etc.
On child in conflict with the law, the Act makes adequate provision in that it lays down procedure for dealing with child offender from the point of arrest, investigation, adjudication and in the custodial institution. It establishes special courts known as Family Courts at the High Court and Magistrate levels and confers on them jurisdiction, to the exclusion of any other court, in any matter relating to children as specified in the Act. It also removes jurisdictional limitations on Magistrate Courts and empowers Magistrate of any grade to impose maximum fine or imprisonment for offences created under the Act. High Court level has jurisdiction over offences carrying death penalty and those with term of imprisonment of ten years and above. It handles application for enforcement of child’s right, claims by child of 50,000 Naira and above and appeals from Magistrate Court. A child is now to enjoy free legal services in all cases.
Specialized Children Police Unit is also established and the Act mandates any person having dealing with children to undergo professional education, in-service training, refresher courses, etc.
Children in need of special care and protection like street children and orphans are not left out as several alternative measures like adoption, fostering, custody, wardship, guardianship, etc are created.
The Act creates watchdogs known as Child Rights Implementation Committees at the Federal, State and Local Government levels to ensure the observance of the provision of this Act. It equally empowers the Minister responsible for children to declare any state in default, power to give effect to direction by court to use scientific tests, etc.
The Act cannot be exhausted within the limit of this paper the above however gives us an insight.
4.2 Some Knotty Areas in the Act
The Act though a step in the direction, has imbedded in it a number of provisions that require reconsideration
4.2.1 Definition of Child
The Act defines a child as ‘a person under the age of eighteen.’ Age-based definition is considered as representing the most objective criterion for determining who falls within the framework of child protection policy. The argument may not sound convincing given the various conception of child in Nigeria and elsewhere. Islam for instance takes into account the natural phenomena and not the numerical age. As such, there is no consensus among Ulamas as to the age of majority but they are at one that puberty is the end of childhood.
The Act seems not to have taken account of these differences in pegging the age of childhood as below eighteen. Indeed, there was intense argument when the Second Polish draft on Child’s Rights Convention, which put 18 years as the age of majority, was debated. It was contended that given the divergent legal and socio-economic traditions of member states of the United Nations, and for ‘variable local adaptation’ allowance must inevitably be made to accommodate the differences. The draft was thus rephrase to accommodate other cultures whose age of majority is lower than as contained in the Polish draft. Article 1 of the CRC reads: For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. McGoldrick rightly opines that Article 1 does not establish 18 years as standard age but allows state party to provide in its national law an age lower than 18 years as age of majority. In a federation one expects some degree of flexibility in pegging the age of majority, particularly as it is the age that forms the basis of all other provisions in the Act. Perhaps the National Assembly adopts the definition in African Charter on the Rights and Welfare of the Child, an instrument that Nigeria is yet to ratify. Failure to take into account the socio-religious differences raises the issue of enforceability and practicability of the Act.
4.2.2 Marriageable Age
In line with the above, any person below eighteen years is now not marriageable by law as he/she is incapable of contracting a valid marriage. Any such marriage is a nullity, and stiff penalty of 500,000 Naira (Five Hundred Thousand Naira) fine or five years imprisonment or both, await any parent, guardian or any person who facilitates such marriages.
This is yet another controversial area, which I elsewhere characterized as a ‘potential danger area,’ as an exhibition of apparent insensitivity to cultural and religious diversities of the Nigerian society. The Second Polish Draft was attacked on this ground, thereby necessitating and the non-inclusion of uniform age of marriage in the CRC. Equally excluded was the outlawing of child marriage and child betrothal.
The Act adopts the provision of Article 16 of CEDAW, which categorically enjoined state parties to take all necessary measures including legislation to outlaw child marriage and child betrothal. The instrument is silent on minimum age for marriage and urges state parties to stipulate it.
The vexed question is whether the provision of this Act is realistic and whether it is practicable and enforceable in this state or Nigeria in general. Nigerian experience shows that it is hardly practicable. It is common knowledge that bigamy is an offence under the Criminal Code applicable in Southern part of Nigeria, since pre-independence era. It is however noteworthy that only one person was so far convicted, and was only sentenced to one-month imprisonment while seven years is the maximum sentence. Professor Cyprian Okonkwo thus asked, ‘‘on the facts of that case why punish at all?’’
Neither the prosecution nor the presiding Judge or Magistrate would feel morally justified to convict a person for giving out his daughter in marriage at say, the age of 16 years.
Anna Mamalakis Pappas emphatically maintained that:
The outlawing of ‘‘child marriages’’ is far from being a reality: quite a few States have no provision regarding an absolute minimum age for marriage, while several others expressly allow marriage ( with parental consent, etc,) at very young ages, particularly where girls are concerned. Compare Australia, Congo, Egypt, Greece, Kenya with China, Cuba, Israel, Norway, U. K and U.S.A. The United Nations General Assembly Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages ( G.A Res. 2018 XX. Nov. 1, 1965) provides that the minimum age for marriage ‘‘in any case shall not be less than fifteen ….
4.2.3 Alternative Care
As noted above, the Act provides different alternative measures for children in need of care, like street children. Adoption may be the only objectionable measure given its effects. Adoption entitles the adopted child to all rights and privileges of a biological child to the adoptive parent. This goes counter to the Qur'anic injunction which reads: ‘‘4- ….nor has He made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. 5- Call them by (the names of) their fathers: that is juster in the sight of Allah. But if ye know not their father's (name, call them) your Brothers in faith, or your Mawlas….’
It is worthy of notice that, the CRC takes account of this and makes provision for Islamically recognized alternative measures. The Act seems not restrictive as other alternatives are provided, as such a state that does not recognise adoption may decide not to establish adoption services in accordance with Section 125 of the Act.
4.2.4 Use of Scientific Test
Concern has been expressed about the use of scientific test by court as provided by the Act. The reason being that allowing such scientific evidence like blood test, DNA test, etc., will open the door to determine the identity of male culprits in cases of Zina (unlawful sexual intercourse). As such, the decided cases of Safiya Husaini V Attorney General Sokoto State and Anor and Amina Lawal V The State would be decided differently.
The Act provides the use of scientific test only in civil cases to ascertain the paternity of a child. It does not provide for its use in criminal cases. At any rate, scientific test is acceptable in Islam and could be used in evidence in limited cases. According to Sheikh Nizâr al-Shu`aybî, Presiding Judge at the Shaqîq City Courthouse, The Islamic Law Complex of the Islamic World League has decreed that:
…there is no legal objection to using DNA analysis in criminal investigations and in considering it as evidence in the crimes that do not obligate the court to carry out a prescribed punishment. This can be gleaned from the hadîth "Avoid prescribed punishments when there are doubts". This would offer justice and security for society and help to ensure that the criminal is punished and the innocent released, which is an important objective of Islamic Law." There are many possible uses for DNA evidence. The following have been approved by the Islamic World League: [Source: seventh decree of the Sixteenth Session of the Islamic World League] 1. To resolve disputes over kinship for any reason such as overturning evidence or in cases of mistaken marriage between siblings. 2. To resolve disputes over the parentage of newborn babies born in hospitals and of test-tube babies 3. To identify missing babies after disasters and wars, unknown corpses, and prisoners of war And Allah knows best.
4.2.5 Threat to Federalism
The Act is replete with provisions that undermine the state legislature and render state/ federating units of mere appendage to the Federal government. It imposes obligations on states to create institutions like courts and subjects the states to Federal scrutiny through empowering Minister in charge of children affairs to issue directives and to even to declare a state in default and to make order for compliance, and which order is enforceable by an order of mandamus.
The principles of federalism as adumbrated by the Supreme Court of Nigeria are the requirement of equality and autonomy of the state government and non-interference with the function of state government. Subjecting states to such checks, tantamount to usurping the powers of state, and rendering state legislature and executive impotent.
5. 0 Conclusion
In the foregone, the Child’s Rights Act 2003 was scrutinized in a bid to assist the stakeholders in their deliberations. Nigeria being a Federation, one expects the Act to be as accommodating as the enabling international instrument i.e the CRC. However, the Act adopts a uniform standard in a country of over 250 ethnic nationalities with diverse cultural and religious orientation. The paper observes some offensive provisions and however concludes that, but for these provisions; the Act is monumental. It is rather difficult to make a sweeping condemnation of the Act simply because it contains some knotty provisions. The existence of child rights is well acknowledged in historical Islam, which the Act to some extent restated. As per the above analysis, state legislature has the legislative competence to make law for the protection of children; as such, it is not out of place to enact a law that is in consonance with its religion, culture and tradition. The cardinal principles of federalism need to be adhered to otherwise the Act will be observed more in breach than in compliance.
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MUSA USMAN ABUBAKAR LL.B Hons. (UDUS), LL.M (Warwick), Barrister-at-Law Legal Adviser Global Network for Islamic Justice NIGERIA P. O. BOX 55, GUSAU.
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