…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 Muslim 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.

4.5 Legitimating a Child Born out of Wedlock

The Act allows an illegitimate child to be attached to his parents on the application of either the father or the mother to the family court. In the word of the Act:

‘68.-(1) where the father and mother of a child were not married to each other at the time of the birth of the child- the Family Court established under section153 of this Act may- on the application of the father, order that he shall have parental responsibility for the child, or on the application of the mother, order that she shall have parental responsibility for the child. Or the father and mother may by agreement have joint parental responsibility for the child.

In Islam, parental responsibility arises only where the subject matter (the child) comes through the legal means. A child born out of wedlock cannot be attached to his purported father, as he will not be eligible to inherit him. Islam allows legitimation and acknowledgement of paternity only if the offspring is not of adulterous relation. Besides, begetting a child outside wedlock is punishable in Islam.

4.6 Ouster of Sharia Court’s Jurisdiction

Family Courts have been established at the High Court and Magistrate levels to entertain cases in any matter, civil or criminal created by this Act where a child is involved.This is to the exclusion of any other court. The Act has now relieved Sharia/Area Courts of their jurisdiction on all issues relating to children. As such, issues of custody (Hadanah), guardianship(Wilayah) etc., hitherto entertained by Sharia/Area Courts are no more within their jurisdiction.

This has a multiplier effect on other superior courts of records like the Sharia Court of Appeal, as its jurisdiction on ‘guardianship’, ‘foundling’ and ‘any other question of Islamic personal law regarding an infant’ ceases to be. The vexed question is whether the provisions of the Act would override our Constitution. Certainly, any provision in the Act that seeks to take away the jurisdiction of a court of record would be unconstitutional. This, I believe is the Act’s Achilles heel and a serious blow on the Sharia Courts of Appeal.

The above observation may also apply in relation to Customary Courts of Appeal whose jurisdiction covers ‘civil proceedings involving questions of customary law’.

5.0 Conclusion

In the foregone, the Child Rights Act 2003 was gauged by the parameters of Sharia with the view to ascertaining it compatibility with Islam. The logical conclusion reached is that the Act though restated most of the rights accorded to children by Sharia, has imbedded in it a number of provisions that ran counter to the tenets of Islam. These objectionable provisions ought not to have been in the Act ab initio having regard to the various interest groups in Nigeria. This is more so as practices like female genital cutting/mutilation, a phenomenon prevalent in many African countries and in Eastern and Southern Nigeria is not classified as harmful traditional practice although it is abhorred globally.

It behoves the legislature at the Federal level to amend the Act particularly given the doubtful constitutionality of some of its provisions. State Houses of Assembly must also tread the legislative path with caution otherwise, their action will be a futile exercise.

Reference

Abubakar, Musa Usman, ‘Children the Disempowered Class: The Need for Legal Protection’, A paper presented as part of the Monthly Lecture Series at the British Council Multi purpose Hall, Kano, Kano State Nigeria on 4th April 2003

CHILD’S RIGHTS ACT: A CRITICAL ANALYSIS FROM THE ISLAMIC PERSPECTIVE

By

Musa Usman Abubakar

GLOBAL NETWORK FOR ISLAMIC JUSTICE, NIGERIA

P.O BOX 55, GUSAU.

1.0 Introduction

In a bid to meet its international obligation, the Nigerian Government presented the Child’s Rights Bill before the National Assembly. Although the move was vehemently objected to from some quarters, the Act was swiftly passed by the two chambers of the National Assembly on 20th and 21st May 2003 and was finally presented to the President for his assent which was accordingly given on 31st July 2003. It has since come into force in the Federal Capital Territory, Abuja. Similar bills are now before the State Houses of Assembly awaiting passage.

While many human rights activists in Nigeria welcome the Act, some Muslim organizations are calling for its outright rejection, claiming that the Act is opposed to Islam and its values. It is the certainty or otherwise of this claim that forms the gravamen of this paper.

The paper is divided into 5 sections. Section 1 introduces the paper, which is closely followed by an overview of the Act in section 2 to provide a basis for the discussion. Section 3 discusses some guaranteed Child’s Rights in Islam. Section 4 identifies and analyses the specific provisions in the Act viewed as objectionable to the Muslims while section 5 concludes it.

2.0 Overview of the Child’s Rights Act

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.

One remarkable position held by the Act is that it takes into account the centrality of family in child’s upbringing and development. It creates rights for children and corresponding duties of obedience and respect on children. It emphasizes the best interest of the child as the primary consideration in administrative, adjudicative, legislative measures, etc relating to 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. The parents are saddled with the duty of maintaining their children according to their means. Failure to maintain the child is actionable at the instance of the child. It likewise makes the child duty bound to be respectful and obedient to his parents, superiors and elders.

Some of the created rights include right to free, compulsory universal basic education. Parents are to ensure their attendance and completion of primary and junior secondary schools. Fine or imprisonment awaits any parent who refused to enrol his/her wards. The law however exempts children who are suffering from mental disabilities.

Right to health and health services (covering the unborn child), is now a guaranteed right. It is duty upon any person having the care of a child less than 2 years to surrender him/her for full immunization, failure to do that makes the person liable to imprisonment or fine. The Act entitles the child the right to claim damages for any injury caused to him wilfully, recklessly, negligently or through neglect during, before and after birth.

Right to name, right to freedom from discrimination, right to leisure, recreation and cultural activities, and indeed all the constitutionally guaranteed rights as provided under the Constitution of the Federal Republic of Nigeria 1999.

It is noteworthy that most of these rights are not absolute. They are subject to parental guidance, direction, control and supervision.

The rights created by the Act are mainly socio-economic rights hitherto not enjoyed by any person in Nigeria, as the Constitution couched them not as rights but as directive principles of state policy. The Nigerian legislature has now remarkably invests the future leaders with them to be enjoyed as a matter of right.

Indeed the wisdom behind fusion of the two generations of rights i.e. (civil and political rights; social, economic and cultural rights) in the Convention on the Rights of the Child (CRC) has now been realised 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.

The Act pegs the age of majority at 18 years. It proscribes child marriage and child 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, guiding beggars etc and using children as slaves or for practices similar to slavery, like debt bondage, compulsory labour, etc. Equally prohibited is the use of children for hawking of goods on main streets, brothels or highways. The use of children for pornographic performance, production or trafficking of illegal drugs, etc. Also the Act proscribes sexual intercourse and other sexual abuses and exploitation of children.

Furthermore, the Act frowns at any act capable of depriving a child the opportunity of attending and remaining in school. Thus, it outlaws employment of child as domestic help outside his own home or family environment, or to work in any capacity, save that it allows the child to do light work of agricultural, horticultural or domestic character

for his family member.

Prohibited also by the Act are scarification and tattooing. Children are not to be recruited into any branch of the Armed forces and should not be directly involved in military operation, etc.

In its effort to filiate children to their biological parents, the Act allows the use of scientific tests like Deoxyribonucleic Acid Test

(DNA) and blood test to ascertain paternity or maternity of a child in civil cases. The test is usually undertaken upon court’s order. The Act allows the taking of scientific sample with the consent of the child if he reaches 16 years. It however requires consent of a third party where the child is below 16 years. In the case of a child suffering from mental disorder, such sample is taken only if the consent of person who has the care and control of the child is sought and a medical practitioner certifies that taking the sample is not prejudicial to the child’s treatment and care. Still in this connection only a medical practitioner designated by the Minister in charge of children affairs can take the sample.

In the case of a child who is 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 levelsand confers on them jurisdiction, to the exclusion of any other court, in any matter relating to children as specified in the Act. A child is to enjoy free legal services in all cases.

Specialised 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 provisions of this Act.

Given that, the Child’s Rights Act 2003 is the brainchild of international dialogue, there is the fear among the Muslims that some of the fundamental principles of Islam might have been overlooked to please some certain interests. This necessitates examining the Act to ascertain the compatibility or otherwise of the Act with the Sharia.

3.0 Rights of the Child in Islam

Of all systems, Islam stands unparalleled in investing children with rights. Before the advent of Islam in Arabia, children suffered appalling injustices and exploitation; girl-child was noted particularly for her state of helplessness in societies characterized by male-child preference and infanticide. Lamenting this predicament, Hon. Justice Chukwudifu Oputa JSC (as he then was) quoted Talmud

thus:

It is written, a daughter is a vain treasure to her father. From anxiety about her he does not sleep at night; during her early years, lest she be seduced; in her adolescence, lest she go astray; in her marriageable years, lest she does not find a husband; when she is married, lest she is childless; and when she is old, lest she be a witchcraft.

Islam liberated the girl-child from such acts of inhumanities like infanticide, discrimination etc., and accorded them rights almost equal to those of a full-grown adult. The Glorious Qur’an reads:

‘‘Thus when one of them gets a baby girl, his face becomes darkened with overwhelming grief. Ashamed, he hides from the people, because of the bad news. He even

debates: should he keep the baby grudgingly, or bury in the dust. Miserable indeed is their judgement.’’

Still in this connection, The Glorious Qur’an states that:

‘‘And when the girl (who was) buried alive is asked: For what sin was she killed?’’

Without being exhaustive, the rights enjoyable by children include right to proper upbringing, right to education, right to equality, right to acquire and own property, right to protection against torture and maltreatment, right not to partake in armed conflict, right to good name and identity, right to leisure and recreational activities, etc

Children to a Muslim are an honour, a gift and a trust on him as such Ahadith abound demonstrating concern and care for children. Prophet Muhammad (SAW) had warned against discrimination in the way people deal with their children. He is reported as saying:

‘‘Be equitable among your children in your gifts, if I were to give preference to anyone, I would have favoured the females.’’(Al-Baihaqi)

Still on gift in another Hadith, Nu’man bin Bashir’s father was asked:

‘Have you given (the like of it) to everyone of your sons?’ He replied in the negative. Prophet (SAW) said, ‘Be afraid of Allah, and be just to your children.’ (Al-Bukhari)

Prophet (SAW) had never condoned child molestation, abuse or maltreatment. Ibn Mas’ud (R.A) related that, ‘Once I flogged a boy thereupon, I heard a voice from my back. When I turned back, I heard the Prophet (SAW) saying, ‘‘O Abu Mas’ud! Know that Allah is more able to punish you than are you with this boy.’’ (Muslim)

It is also on record that Al-Aqra Ibn Habis at-Tamimi saw Prophet Muhammad (SAW) kissing Hassan Ibn Ali, and wondered ‘‘I have ten children but I have never kissed any one of them. Then the Prophet

(SAW) looked at him and said, ‘‘Whoever does not have mercy on people, Allah does not have mercy on him.’’ (Al-Bukhari)

This comment had a far-reaching implication on Al-Aqra, as Shura Committee recommended him for appointment as Governor during the reign of Umar b. Khattab but was turned down.

It was common in the early period of Islam for the Caliphs to warn the Muslim army going on exhibition not to kill children, women and the aged. Children were not allowed to partake in military expedition. This is made clear when Prophet (SAW) turned down the request of Abdullah b. Umar to join the Muslim in battle of Uhud when he was only fourteen years old but he was allowed to attend Battle of Khandaq when he clocked fifteen years. (Ahmad)

On leisure and recreational activities, Muslims have been enjoined to teach their children horse riding, archery and swimming. Indeed Prophet SAW exemplified this command. On one occasion, it is reported that, he used to line up Abdullah, Ubaydullah and Khuthayyir, the sons of Abbas (RA) and say: ‘‘Whoever reaches me first, I will give him such-and-such.’’ So they would race towards him and jump on his back

and chest, kissing him.

4.0 Objectionable Provisions of the Act

The Act though a step in the right direction, has imbedded in it a

number of provisions that require reconsideration by the lawmakers.

4.1 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 conceptions 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 Ulama as to the age of majority but they are unanimous that puberty is the end of childhood.

The Act seems not to have taken account of these differences in pegging the age of childhood 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 rephrased 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(emphasis mine).’’

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.

It is pertinent to note that age of majority (Taklif) is a very essential factor and is the basis upon which duties and obligations vest on a Muslim. Muslim jurists are agreed that puberty, which is the terminal period of childhood, is not determined by numerical age but by physiological condition. Thus once a male child ejaculates at whatever age, he is duty bound to observe all the tenets of Islam. He is also liable to Hadd penalty if transgresses the Sharia. They are also unanimous on menstruation for women as the terminal period of childhood. The only time when numerical age is resorted to is where none of the conditions of maturity is discernible. Jurists are divided in this respect. To Abu Hanifa, age of majority is 18 or 19 years for male and 17 for female. Majority of Maliki scholars pegged it at 17 or 18 years, while Imam Shafii, Ahmad and Ibn Wahb and majority scholars settled at 15 years. This last position, it was submitted, is in line with the prophetic Hadith that decrees 15 years as the age a person

can engage in armed conflict.

Apparently, the provision of the Act that pegs the age of majority at 18 years is not in tandem with Islamic principles.

4.2 Marriageable Age

As earlier noted, child marriage and child betrothal have been outlawed, as the Act regards any person below eighteen years not marriageable by law as he/she is incapable of contracting a valid marriage. 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 a marriage. Additionally, a person (groom) who marries a child and consummates the marriage is guilty of rape and if convicted he would be sentenced to life imprisonment.

This is another area the Muslims find objectionable in the Act as it does not take into account their religious orientation. Imam Sarkhasee dedicated a part in his treatise ‘Al- Mabsut’ on the legality or otherwise of child marriage/betrothal. In the main, he asserted that, of the Muslim jurists only Ibn Shabrama and Abubakar Al-Asam opposed child marriage/betrothal. According to them, marriage arises only upon reaching puberty, basing their position on the following verse:

‘‘And test the orphans (in their abilities) until they reach marriageable age*. Then if you perceive in them sound judgement, release their property to them.’’

Imam Sarkhasee countered this argument as contextually wrong, holding that the verse is only limited to guardianship ‘Wilayah.’ He posited that the Prophetic practice backed his stance and so were the practices of the Sahaba and Tabiun. He further held that, legality of child marriage could be inferred from the Holy Qur’an where it clearly provides for waiting period ‘Iddah’ of non-menstruating women.

‘And those who no longer expect menstruation among your women- if you doubt, then their period is three months, and (also for) those who have not menstruated. And for those who are pregnant, their term is until they give birth.’

Undoubtedly, the pegging of age of majority at 18 years was challenged as being insensitive to the pluralistic nature of the world during the drafting of the CRC. This necessitated the non-inclusion of uniform age of marriage in the CRC. Equally excluded was the prohibition of child marriage and child betrothal.

Thus, any attempt to criminalize marriage on the assumption that it is with a child would meet considerable resistance from Muslim quarters.

In this context, it is presumed that 18 years is the international standard for a valid marriage. What justification do we have of being strict on the 18 years, if in United Kingdom, a person can marry at the age of 16 years with parental consent while in the United States of America; the age of matrimonial consent is 12 years and 14 years for girls and boys respectively?

It is conceded that the Act meant well for the children particularly the girls who are by culture given out in marriage at very young ages, thus, making them economically disempowered and perpetually dependent on their male counterparts. However, excessive criminalization of practices that have bearing with religion may do more harm than good to the society, for there would hardly be any mechanism for the enforcement of the law, thereby becoming a dead letter.

Given the importance Islam attaches to education vis-a-vis marriage, I suggest we need to strike a balance between them as I suggested elsewhere. It would not be out of place to insist on enrolment and non-withdrawal of children from school for any reason until they complete the compulsory universal basic education i.e. primary and junior secondary school. Legal permission be given to women to pursue further education while in their matrimonial homes. It is disheartening how our society sacrifices the females’ right to education and subjects it to whimsical promptings of their husbands, as if the obligation to seek knowledge does not extend to them.

4.3 Adoption as an Alternative Measure of Child’s Care

As noted above, the Act provides different alternative measures for children in need of care, like street children, orphans, etc. These include wardship, fostering guardianship and adoption. 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:

‘‘…he has not made your claimed (i.e. adopted) sons your (true) sons. That is (merely) your saying by your mouths, but Allah says the truth, and he guides to the (right) way. Call them by (the names of)their fathers; it is more just in the sight of Allah .But if you do not know their fathers- then they are (still)your brothers in religion and those entrusted to you…

The fact that adoption is not allowed in Islam does not mean that Islam is insensitive to the plights of the downtrodden. It encourages Muslims to look after children in need of care as evidenced in many Qur’anic verses.

4.4 Use of Scientific Tests in Criminal Cases

The use of scientific tests by court as provided by the Act has also been objected to by some Muslim organizations as unislamic. Their reason is based on Sharia which allows four reliable witnesses to give evidence in Zina offence. By accepting such scientific evidence like blood test and DNA tests within the Muslims will open the door for determining the identity of male culprits through such tests. Thus, cases of Safiya Husaini and Another Vs Attorney General Sokoto State

and Amina Lawal Vs The State would have been decided differently and

contrary to the teachings of Islam.

It is noteworthy that the Act restricts the use of scientific tests only in civil cases to ascertain the paternity or maternity of a child. It does not provide for its use in criminal cases. At any rate, scientific tests are acceptable in Islam in limited cases. Sheikh Nizâr al-Shu`aybî, Presiding Judge at the Shaqîq City Courthouse opined that the Islamic Law Complex of the Islamic World League 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 Muslim 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.

4.5 Legitimating a Child Born out of Wedlock

The Act allows an illegitimate child to be attached to his parents on the application of either the father or the mother to the family court. In the word of the Act:

‘68.-(1) where the father and mother of a child were not married to each other at the time of the birth of the child- the Family Court established under section153 of this Act may- on the application of the father, order that he shall have parental responsibility for the child, or on the application of the mother, order that she shall have parental responsibility for the child. Or the father and mother may by agreement have joint parental responsibility for the child.

In Islam, parental responsibility arises only where the subject matter (the child) comes through the legal means. A child born out of wedlock cannot be attached to his purported father, as he will not be eligible to inherit him. Islam allows legitimation and acknowledgement of paternity only if the offspring is not of adulterous relation. Besides, begetting a child outside wedlock is punishable in Islam.

4.6 Ouster of Sharia Court’s Jurisdiction

Family Courts have been established at the High Court and Magistrate levels to entertain cases in any matter, civil or criminal created by this Act where a child is involved.This is to the exclusion of any other court. The Act has now relieved Sharia/Area Courts of their jurisdiction on all issues relating to children. As such, issues of custody (Hadanah), guardianship(Wilayah) etc., hitherto entertained by Sharia/Area Courts are no more within their jurisdiction.

This has a multiplier effect on other superior courts of records like the Sharia Court of Appeal, as its jurisdiction on ‘guardianship’, ‘foundling’ and ‘any other question of Islamic personal law regarding an infant’ ceases to be. The vexed question is whether the provisions of the Act would override our Constitution. Certainly, any provision in the Act that seeks to take away the jurisdiction of a court of record would be unconstitutional. This, I believe is the Act’s Achilles heel and a serious blow on the Sharia Courts of Appeal.

The above observation may also apply in relation to Customary Courts of Appeal whose jurisdiction covers ‘civil proceedings involving questions of customary law’.

5.0 Conclusion

In the foregone, the Child Rights Act 2003 was gauged by the parameters of Sharia with the view to ascertaining it compatibility with Islam. The logical conclusion reached is that the Act though restated most of the rights accorded to children by Sharia, has imbedded in it a number of provisions that ran counter to the tenets of Islam. These objectionable provisions ought not to have been in the Act ab initio having regard to the various interest groups in Nigeria. This is more so as practices like female genital cutting/mutilation, a phenomenon prevalent in many African countries and in Eastern and Southern Nigeria is not classified as harmful traditional practice although it is abhorred globally.

It behoves the legislature at the Federal level to amend the Act particularly given the doubtful constitutionality of some of its provisions. State Houses of Assembly must also tread the legislative path with caution otherwise, their action will be a futile exercise.

ReferenceS;

Abubakar, Musa Usman, ‘Children the Disempowered Class: The Need for Legal Protection’, A paper presented as part of the Monthly Lecture Series at the British Council Multi purpose Hall, Kano, Kano State Nigeria on 4th April 2003