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The Challenge of Domesticating Children's Rights Treaties in Nigeria and Alternative Legal Avenues for Protecting Children

Published online by Cambridge University Press:  02 October 2018

Daniel Ogunniyi
Daniel Ogunniyi*
Affiliation:
University of Antwerp
*
[email protected]
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Abstract

The domestication of child-related treaties is not a straightforward process in Nigeria. Unlike treaties with another thematic focus, the majority of constituent states must give their full consent before any child-related instrument may be domesticated at the federal level and subsequently re-enacted in the domestic states. In many ways, the plural legal orders in the country and the differing perceptions of childhood make consensus difficult to achieve in terms of child rights legislation. In this regard, even though the UN Convention on the Rights of the Child has been domesticated (through a contestable procedure), 11 of Nigeria's 36 constituent states have failed to re-enact the domesticating instrument. This study elaborates on this problem, and then examines some instruments that are not affected by the domestication challenges and may offer useful protection to children with regard to certain sectoral aspects, especially child labour and child trafficking.

Keywords

Nigeriachildren's rightslegal pluralismdomesticationchild labourchild trafficking
Type
Research Article
Information
Journal of African Law , Volume 62 , Issue 3 , October 2018 , pp. 447 - 470
Copyright
Copyright © SOAS, University of London 2018 

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Footnotes

*

PhD researcher, Law and Development Research Group, University of Antwerp. The author would like to thank Prof Wouter Vandenhole for his comments on an earlier draft of this article. Special thanks also go to the anonymous reviewers for their insightful remarks.

References

1 Legal protection refers here to the protection of children's rights through legislation.

2 For instance, while the CRA stipulates that a child below the age of 18 years is not capable of contracting a valid marriage, the Child Rights Law in Jigawa State lowers this to 13 years. This problem is considered in more detail below.

3 (2000) 6 NWLR [pt 660] 228.

4 Id at 288–89.

5 Ibid.

6 Tamanaha, B “Understanding legal pluralism: Past to present, local to global” (2008) 30 Sydney Law Review 375 at 381Google Scholar.

7 Ibid.

8 Oba, A “The Sharia Court of Appeal in northern Nigeria: The continuing crises of jurisdiction” (2004) 52/4 The American Journal of Comparative Law 859 at 859CrossRefGoogle Scholar; Alkali, U et al. “Nature and sources of Nigerian legal system: An exorcism of a wrong notion” (2014) 5 International Journal of Business, Economics and Law 1 at 2Google Scholar.

9 Oba, A “Neither fish nor fowl: Area courts in the Ilorin Emirate in northern Nigeria” (2008) 58 Journal of legal Pluralism 69 at 69Google Scholar.

10 RC Uzoma “Religious pluralism, cultural differences and social stability in Nigeria” (2004) Brigham Young University Law Review 651 at 653.

11 A Oba “Religious and customary laws in Nigeria” (2011) 25 Emory International Law Review 881 at 882.

12 See generally, the Constitution, sec 6.

13 CRC, art 4.

14 Art 1.

15 Akinwunmi, OS “Legal impediments on the practical implementation of the Child Rights Act 2003” (2009) 37/3 The Journal of Legal Information 385 at 385Google Scholar.

16 Id at 386.

17 Ibid.

18 Id at 385.

19 CRA, sec 277.

20 The CYPA 1958 revised the Children and Young People's Ordinance of 1943.

21 CYPA, sec 2.

22 Labour Act, cap L1, Laws of the Federation of Nigeria (LFN) 2004. It is to be noted that the LFN 2004 is a consolidation of all existing legislation in the country and not the enactment of new laws per se. The Labour Act referenced in the 2004 LFN had previously existed under chap 198, LFN 1990. Thus, the definition of a child in the CRA is still effective and takes priority, even though the Labour Act was consolidated under a new title in 2004.

23 O Ajaja “Revisiting the Child Rights Act” (28 April 2016) Punch, available at: <https://punchng.com/revisiting-child-rights-act/> (last accessed 29 August 2018).

24 Issues on the exclusive legislative list include: state creation; customs and excise duties; creation of banks; defence; citizenship; diplomatic and consular relations; external affairs; extradition; and nuclear energy. See generally the Constitution, second sched, part I (legislative powers).

25 Concurrently shared powers include legislation relating to: electricity and the establishment of electric power stations; health care; archives and public records of state governments; and the establishment of educational institutions. See the Constitution, second sched, part II (extent of federal and state legislative powers).

26 EB Omoregie “Implementation of treaties in Nigeria: Constitutional provisions, federalism imperative and the subsidiarity principle” (extract of proceedings of the 2nd International Conference on Public Policy, 1–4 July 2015, Milan, Italy) 1 at 3.

27 It should be noted that the term “residual” is not expressly mentioned in the Constitution, but has been used to refer to state legislative powers.

28 See generally the Constitution, second sched, parts I and II (legislative powers).

29 It should be indicated that there is no categorization of residual powers in the Constitution's schedules. It is however widely acknowledged that powers outside the exclusive and concurrent lists reside with states.

30 In accordance with sec 299 of the Constitution, the National Assembly is empowered to make laws for the Federal Capital Territory, Abuja. It has been pointed out that “the idea of a legislation on the rights of the child met with stiff opposition from religious groups, ethnic and cultural interests and other interest groups. This resulted in a ten-year delay in the passage of the draft bill. In consideration of this, and the likelihood that the bill would not receive the necessary majority support in the state Houses of Assembly, the bill was passed without seeking for ratification by the Majority of the State's Houses of Assembly. This failure to comply with the constitutional preconditions necessary to give the Bill a nationwide application as an Act of the National Assembly, therefore resulted in the Child's Rights Act becoming a law that applies only to the Federal capital Territory, Abuja.” See “Introduction to the Child's Rights Act, 2003” Educational Resource Providers, available at: <https://www.educationalresourceproviders.com/introduction-to-the-childs-rights-act-2003/> (last accessed 30 August 2018).

31 See Committee on the Rights of the Child, CRC/C/NGA/CO/3–4 (21 June 2010), para 7.

32 Ibid.

33 The Marriage Act, Laws of the Federation of Nigeria, 1990, sec 18 specifically stipulates: “If either party to an intended marriage, not being a Consent widower or widow, is under twenty-one years of age, the written consent of the father, or if he be dead or of unsound mind or absent from Nigeria, of the mother, or if both be dead or of unsound mind or absent from Nigeria, of the guardian of such party, must be produced annexed to such affidavit as aforesaid before a licence can be granted or a certificate issued.”

34 Kyari, GV and Ayodele, J “The socio-economic effect of early marriage in north western Nigeria” (2014) 5/14 Mediterranean Journal of Social Sciences 582 at 586Google Scholar.

35 The relevant median age in the south-eastern region was however put at 22.8, demonstrating that child marriage is less practised in the southern region compared to the north; see National Population Commission (Nigeria) and ICF Macro “Nigeria demographic and health survey 2008” (2009) at 95.

36 Id at 94.

37 Id at 95.

38 Braimah, TS “Child marriage in northern Nigeria: Section 61 of part I of the 1999 Constitution and the protection of children against child marriage” (2014) 14 African Human Rights Law Journal 474 at 475Google Scholar.

39 Ibid.

40 Ibid.

41 Nzarga, FD “Impediments to the domestication of Nigerian Child Rights Act by the states” (2016) 19 Journal of Culture, Society and Development 48 at 52Google Scholar.

42 Quoted in Assim, UM and Sloth-Nielsen, J “Islamic Kafalah as an alternative care option for children deprived of a family environment” (2014) 14 African Human Rights Law Journal 322 at 326Google Scholar.

43 Ibid.

44 Ibid.

45 Ibid.

46 Commenting further on this, Usang Assim notes that, “the abolition of adoption further gained support because adoption in pre-Islamic Arabia was practised together with certain acts that were not supported by Islam. For instance, a family could disclaim a member and a person could renounce his biological family. Such practices were popular because adoption into another family was always a possibility. Such actions were considered unacceptable in the creation of a new Islamic community in Mecca and Medina at the time. Consequently, although some scholars argue that adoption in Islam is mubah and have called for a reform of Muslim legal traditions to conform to the formal notion of adoption, the general and popular position is that adoption is prohibited in Islam, the practice of which amounts to a sin of apostasy (kufr). The eventual inclusion of kafalah in CRC reflects the current Islamic populist position on adoption.” See Assim and Sloth-Nielsen “Islamic Kafalah”, above at note 42 at 327.

47 See generally, Oba, A “Islamic law as customary law: The changing perspective in Nigeria” (2002) 51 International and Comparative Law Quarterly 817 at 817CrossRefGoogle Scholar.

48 Id at 845.

49 Quoted in id at 831.

50 Nzarga “Impediments to the domestication”, above at note 41 at 54.

51 Almajiris are arguably some of the most exploited and marginalized children in Nigeria today. In terms of its history and meaning, Fowoyo Joseph Taiwo, notes that the word almajiri generally implies “seeker of Islamic knowledge”. Thus, given the Islamic injunction that “the best among you [Muslims] are those who learn the Qur'an and teach it”, there was a proliferation of informal Qur'anic schools (the Almajiri system) across northern Nigeria during the pre-colonial era. However, Taiwo further notes that, during colonial rule, “[t]he British invaded the region and killed most of the Emirs and disposed some. The Emirs lost control of their territories and accepted their new roles, as mere traditional rulers. They also lost fundamental control of the Almajiri system. The British deliberately abolished state funding in respect to the system arguing that, they were religious schools. With loss of support from the government, its immediate community and the helpless Emirs, the Almajiri system collapsed like a pile of cards. Karatun Boko, western education was introduced and funded instead. The pupils now, having no financial support resorted to begging and other menial jobs for survival. This is certainly the genesis of the predicament of the Almajiri system today.” See Taiwo, FJ “Transforming the Almajiri education for the benefit of the Nigerian society” (2013) 3/9 Journal of Educational and Social Research 67 at 67 and 68Google Scholar. In a similar vein, N Awofeso, J Ritchie and P Degeling observe that, “Nigeria's post-independence federal governments have neither formally recognized Almajiri schools as part of Nigeria's educational structure, nor provided funding for their operations. The fact that the heritage has survived, and continues to grow despite a century of neglect and intimidation by colonial and post-independence governments indicates the high level of acceptance, among the underclass, of the religious and political issues used by custodians of the heritage to justify its continuation”: Awofeso, N, Ritchie, J and Degeling, P “The Almajiri heritage and the threat of non-state terrorism in northern Nigeria: Lessons from Central Asia and Pakistan” (2003) 26/4 Studies in Conflict & Terrorism 311 at 317CrossRefGoogle Scholar.

52 The CRC Committee recognized the plight of almajiri children in its 2010 concluding observation on Nigeria, when it urged the Nigerian government to prevent “children from living and working in the street, including the almajiri, by ensuring that children in street situations are provided with adequate nutrition, clothing, housing, health care and educational opportunities, including vocational and life-skills training, in order to support their full development”: Committee on the Rights of the Child, CRC/C/NGA/CO/3–4 (21 June 2010), para 85(C).

53 Labour Act, cap L1, Laws of the Federation of Nigeria, 2004.

54 CRA, sec 29 provides that, “the provisions relating to young persons in sections 58, 59, 60, 61, 62 and 63 of the Labour Act shall apply to children under this Act”.

55 Labour Act, sec 91.

56 See ILO 138, art 7(1)(a) and (b) as well as art 7(4).

57 See for instance id, arts 2(3) and 7(1)(b).

58 In a sense, education and work are not treated as mutually exclusive in the Labour Act. Although it may be that the Labour Act deliberately avoids going into issues that are not strictly labour related; issues concerning education, for example, may be considered to be outside its scope.

59 For instance sec 59(2) provides: “No young person under the age of fifteen years shall be employed or work in any industrial undertaking: Provided that this subsection shall not apply to work done by young persons in technical schools or similar institutions if the work is approved and supervised by the Ministry of Education (or corresponding department of government) of a State.”

60 Id, sec 59(3).

61 Id, sec 59(5).

62 In this regard, ILO 182, art 3(d) restricts children below the age of 18 from undertaking “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”. ILO Recommendation 190, art 4 however provides: “For the types of work referred to under Article 3(d) of the Convention and Paragraph 3 above, national laws or regulations or the competent authority could, after consultation with the workers’ and employers’ organizations concerned, authorize employment or work as from the age of 16 on condition that the health, safety and morals of the children concerned are fully protected, and that the children have received adequate specific instruction or vocational training in the relevant branch of activity.”

63 See generally, recommendation 190, art 3(a)–(e).

64 A similar provision is also contained in id, art 4.

65 Labour Act, sec 60.

66 Id, sec 61(5) defines vessels to include “floating craft of every description except ships of war”.

67 Id, sec 62.

68 Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2003 (as amended in 2005).

69 See for instance: CRC, arts 34 and 35; ILO 182, art 3; and, more generally, the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (2000).

70 CRA, sec 30(2)(e) for instance provides that a child shall not be used, “procured or offered for prostitution or for the production of pornography or for any pornographic performance”.

71 Baarda, CS “Human trafficking for sexual exploitation from Nigeria into western Europe: The role of voodoo rituals in the functioning of a criminal network” (2016) 13/2 European Journal of Criminology 257 at 258CrossRefGoogle Scholar.

72 Campana, P “The structure of human trafficking: Lifting the bonnet on a Nigerian transnational network” (2016) 56 The British Journal of Criminology 68 at 72CrossRefGoogle Scholar.

73 Ibid.

74 Above at note 69.

75 Nigeria ratified the Optional Protocol in 2010.

76 It has been argued that the majority of economically active children in Nigeria are employed as child domestic workers; see for instance, Okafor, EE “Child labour dynamics and the implications for sustainable development in Nigeria” (2010) 12/5 Journal of Sustainable Development in Africa 8 at 11Google Scholar.

77 ILO 138, arts 7(1) and (4).

78 From a general perspective, it should be noted that employment of child domestic workers seems to be more dominant in southern Nigeria than in the north. Usually, families with modest income or the more affluent engage the services of children from poorer families, often committing to finance their education. In reality however, child domestic work is sometimes a synonym for exploitation. Tade and Aderinto have, for example, conducted an extensive study of child domestic work in Oyo, Nigeria (one of the southern states); see generally Tade, O and Aderinto, A “Factors influencing the demand for domestic servants in Oyo State, Nigeria” (2012) 4/1 International Journal of Child, Youth and Family Studies 521CrossRefGoogle Scholar.

79 In this regard, the Trafficking Act, sec 24 stipulates: “Any person who recruits, imports, exports, transfers, transports, buys, sells, disposes or in any way traffics in any person as a slave or accepts, receives, detains or harbours a person as a slave, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than ₦2,000,000.00.” Thus, unlike other provisions that stipulate punishment of up to seven years, under sec 24, imprisonment may not be less than seven years.

80 See the Constitution, sec 4(1) and (2).

81 Id, sec 12.

82 As already pointed out. The exclusive powers of the federal legislature in child-related matters are limited to the Federal Capital Territory, in Abuja.

83 The Constitution, second sched, item 34.

84 Generally, as trafficking is contained in neither the exclusive nor concurrent legislative list, states must be duly consulted and involved in the enactment of relevant legislation, in accordance with the Constitution, sec 12. It is however not clear if this process was duly followed in adopting this statute.

85 The main grounds for objection are highlighted above, including prohibition of child marriage, prohibition of marriage to members of an adoptive family, prohibition of skin marks and tattoos, as well as prohibition of child labour, especially begging.

86 A similar recommendation was also made by the UN CRC Committee in its concluding observation on Nigeria; see above at note 52, para 8.

87 The Constitution, sec 9 specifies the step-by-step process of constitutional amendment in Nigeria. The relevant part is: “(1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution; (2) An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.”

88 Issues of child protection can be better realized when powers are jointly shared by states and the federal government, not exercised by the federal government alone.

89 In this regard, the Constitution, sec 4(5) provides: “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.”

90 (2003) 12 WRN 1 SC.

91 The Constitution, sec 4(5).