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Criminal Justice Process: The Enforcement Of Rights Of The Children In Nigeria
CRIMINAL JUSTICE PROCESS: THE ENFORCEMENT OF RIGHTS OF THE CHILDREN IN NIGERIA
ABSTRACT
There are various legislations under the Nigerian legal system that seeks to protect the rights of the child. Majorly, the 1999 Constitution of the Federal Republic of Nigeria provided for human rights, Nigerian Children’s Trust Fund Act, Penal Code, Criminal Code, Children and Young Persons Act, Child Rights Act, which all have provisions for the protection of a child. The guiding principle on the issue of child protection is in the best interest of the child, the Child Rights Act 2003 and Nigeria Child Rights Law 2010 affirmed this principle and provided various rights for the child and the mechanism for the enforcement of these rights. However, despite the existence of these various law that provided for the protection of the rights of a child, the children’s rights are been abused on daily basis, therefore, the dissertation appraised the protection of the rights of a child in Nigeria by considering the Nigeria Child Rights Law, and other related legislations. The Doctrinal and Empirical research methodology were used to source for information relied upon for this dissertation. It is the findings of this dissertation that there are inconsistencies in Nigeria Child Rights Law 2010, and lack of commitment on the part of government to adequately enforce the laws that protect the child. It makes recommendations to the area of the inconsistency or defect in the law and also commitment on the part of the government constituted authorities in charge of the implementation of the Child Rights Law.
CHAPTER ONE GENERAL INTRODUCTION
1.1 Background of the Research
The general frameworks within which human rights are protected in Nigeria include the rights of a child which are in Chapter IV of the 1999 CFRN. The Rights to fair hearing and the right to life, the rights to personal liberty and the right to freedom of movement among others, Section 421 prohibits unjustifiable discrimination on basis of ethnic group, place of origin, sex, religion or political opinion2.
We have other legislations that seek to protect the rights of a child, like, Children and Young Persons Act, Criminal Code, Penal Code, Child Rights Act 2003.
In 1996, Nigeria submitted its first report on the implementation of the Child
Rights Convention to the United Nation Committee on the Rights of the Child. One of the major recommendations made by the Committee was to finally ensure the domestication of the Child Rights Convention, as this is necessary for its full implementation in Nigeria3.
- 1999 Constitution of the Federal Republic of Nigeria
- http://scholarship.law.cornell.edu/ijl; 2nd April, 2015 3 Ibid
The United Nation Convention on the Rights of the Child came into force on 2nd September, 1990[1] and The African Charter on the Rights and Welfare of the Child came into force in 1999, while Nigeria domesticated the United Nation Convention on the Right of the Child and African Charter on the Rights and Welfare of a Child in 2003. Subsequent upon the domestication of Child Rights Act 2003, the
following states passed their Child Rights Law:
Anambra State 2004[2] , Taraba State 2005[3] , Imo State 2004[4] , Kwara State 2005[5] ,
Nasarawa State 2005[6] , Plateau State 2005[7] , Abia State 2006[8] , Ekiti State 2006[9] , Oyo 2006[10] , Osun State 2007[11] , Ogun State 2006[12] , Ondo State 2007[13] , River State 2009[14] , Kogi State 2007[15] , Jigawa State 2007[16] , Lagos State 2007[17] , Edo State 2007[18] , Akwa Ibom State 2008[19] , Delta State 2008[20] , Benue State 2009[21] , Cross River 2009[22] and Ebonyi State 201026 and Nigeria being the focus of this research passed the Child Rights Law in 2010.
Although Nigeria has passed the Child Rights Law since 2010 but the prevalence level of child abuse within the state is alarming, which shows that either there are fundamental defect in the law or the lack of commitment from those having the responsibility of implementing the law.
The Child Rights Law principally seek to protect the child from all forms of abuses and create an enabling environment for the proper growth of a child. Nigeria Child Rights Law provided that “every government, person, institution, service, agency, organization and body responsible for the care and welfare of a child shall, at all times, ensure adequate opportunities for the child in the enjoyment of the rights provided for the child27.
Moreover, Nigeria Child Rights Law provides that every child is entitled to enjoy the best attainable state of physical, mental and spiritual health[23] .
It is interesting to know that the law provides that every child has the right to free and compulsory universal basic education and it shall be the duty of the government to provide such education29.
Too many children are considered to be the property of adults[24] , and are subjected to various forms of abuse and exploitation. We cannot claim that we live in a world where children‟s best interests are the primary consideration in all decision affecting them. In fact, the contrary is evidenced by the way human kind allocates its resources, the limited attention given in ensuring that it is in the best interest of the children and the way it conduct its war[25] .
The survival and continuity of the human society depends upon the protection, preservation, nurture and development of the child. Providing the child with a good start in life and ensuring that their material and emotional needs are adequately met is very important.
The Child Right Act 2003[26] and Child Right Law 201032 define a child to mean: “A person under the age of eighteen (18) years”.
However Children and Young Persons Act section 2 provide that a “child means a person under the age of fourteen years.”[27] Also Children and Young Persons Law of Nigeria define a child in section 2 to mean “any person who has not yet attained the age of fourteen years”.[28]
Furthermore, Article 1 of Convention on the Right of the Child defines the holder of Rights under the child Convention as “every human being below the age of 18 years unless under the law applicable to the child, Majority is attained earlier”[29] . The convention clearly specified the upper age limit for childhood as eighteen (18) years, but recognizes that majority may be obtained at an earlier age under laws applicable to the child. The Article thus accommodates the concept of an advancement of majority at earlier age either according to the federal or laws within that country.
Another definition of a child by Oxford dictionary is “A young human being below the age of puberty or below the legal age of majority”[30] . The Nigerian Children‟s Trust Fund Act defines “A child as the person who has not attained the age of sixteen years”.[31]
Furthermore, Ayua and Okagbue in their book define a child under the customary definition that it “varies from ethnic group to ethnic group due to the lack of a uniform system of customary law in Nigeria”.
In some ethnic groups a boy remains a child until initiated into an age grade society or until he is old enough to contribute financially to community development. In others, childhood terminates at puberty”[32] .
Black‟s Law Dictionary defines a child to mean “a person under the age of maturity”.39
In Okon vs. The State it was held that “under section 2 (1) of the Criminal Procedure Act, a „child‟ means any person who has not attained the age of fourteen years and this definition is exhaustive”.[33]
Also in Solola and Anor vs. State[34] “A child is defined by section 2 (1) of the Criminal Procedure Law[35] as a person who has not attained the age of 14 years”.
Similarly, in the case of R. vs Carton, it was held that the meaning of the word child “must in every case depend on the content in which it appears”.[36]
These definitions clearly show the contradiction in the definition of a child under various laws in Nigeria. But for the purpose of this research, the Child is a person under the age of 18 years. The reason being that the Child Right Act 2003 and
Nigeria Child Right Law 2010 definition is the same which also tally with the United Nation Convention on the Right of the Child and African Charter on the Right and Welfare of the Child meaning it is an acceptable international definition.
1.2 Statement of the Research Problem
Nigeria has enacted various laws for the protection of the right of a child. Nigeria in particular has also promulgated the child right law in the state for the protection of the right of a child. Similarly, there are various institutions like the courts, Ministry of Women Affairs, Borstal and Orphanage homes for enforcement of the right of a child. Also successive government in Nigeria has at various times initiated and established programmes, schemes and initiative for the progressive realization of children rights.
Despite these arrays of laws, policies and institutions realization and enforcement of child rights in Nigeria and more particularly in Nigeria here been very low.
Consequently, the research examines the following questions.
- How has the law protected the right of a child in Nigeria?
- What is the efficacy of the enforcement of the protection of child rights in Nigeria?
- What are the challenges in the protection of child rights?
1.3 Aim and Objectives of the Research
The aim of this research is to appraise the protection of the rights of a child in Nigeria, in order to achieve the following objectives.
- To analyze the protection of the right of a child.
- To examine the efficacy of implementation. Mechanisms for the protection of the right of a child.
- To identify the challenges in the protection of the rights of a child. iv.To provide recommendations to the challenges.
1.4 Scope of the Research
The scope of the research is confined to the examination of following:
- The protection of the Rights of the Child in Nigeria with reference to the
Nigeria Child Rights Law.
- Identifying possible problems that maybe encountered in the course of implementing the Child Rights Law 2010 to protect the rights of the child.
- Providing viable options in terms of general and specific recommendation on how to protect the rights of the child in Nigeria in particular and
Nigeria at large.
1.5 Significance of the Research
This research is to locate the extent to which the implementation of the Nigeria Child Rights Law 2010 addresses the issue of protection of the rights of the child in Nigeria and Nigeria. It will serve as an additional literature to the existing one and when people read it, it will create awareness for the protection of the rights of the child and prevention of child abuses, by so doing the public will be better informed and it will in turn contribute to guaranteeing lasting respect for and the enforcement of child rights in Nigeria and Niger at large. This research will be useful as a source of material to legislators, executives, the judiciary, lawyers, student engaging in related studies and the general public.
1.6Research Methodology
The research methodologies adopted here are doctrinal and empirical research methodology.
Doctrinal method means “theorizing without considering the practical consequences. It is called a visualized research, imaginative research, unpractical research, a visionary research or conceptual research”[37] . The researcher went through volumes of books, statutes, and cases in the area of the law this research covers.
Empirical Method “involves the collection of fact and data through interviews, questionnaires from target groups. The fact and data are later analyzed or experimented upon, from which result are obtained. It is also called field-oriented method of research”[38] . It include visit to Governmental and non- Governmental organizations based in Nigeria relevant on the general issue of child protection and implementation of Child Rights Law 2010, of Nigeria to interview individuals and administer questionnaire.
1.7 Literature Review
This involves review of some authors who have written on this topic. Authors have discussed extensively on the child rights law but only few articles have been written on the Child Rights Law, 2010 of Nigeria, which was enacted by Nigeria House of Assembly in March 2010.
Bainham wrote on the children – The Modern Law, which he considered the United Nations Convention on the Rights of the child, the author emphasis on the important of the implementation of the rights contain in the UN convention, which is one of the most important international instrument which was domesticated in Nigeria as Child Rights Act 2003. However, the analysis in the book was based on the United Nation Convention on the Rights of the child which to some extent does not bring the peculiarities of Nigeria Child Rights Law 2010.[39]
Aliyu wrote on Shariah and the Child Rights Act 2003; A case of incompatibility, the author brought the inconsistencies with the religion belief of some Nigerians which the law did not put into consideration. The analysis of the author was based on the Child Rights Act 2003, which the Child Rights Law 2010 has taken care of some issues raised by the author which of course could not probably have not come to the notice of the writer as the law was passed the year the book was published.[40]
Meron wrote on Human Rights in international Law; legal and policy issues, the author dwell on the international protocols which addresses the human rights, children inclusive, which although relevant to this dissertation do not bring the rights and responsibilities of children as contain in Nigeria Child Rights Law 2010.[41]
Alemika, etal, in their report on Rights of the Child in Nigeria[42] discussed the Children and Young People‟s Law, although this have been over taking by event but it helps in the understanding of the rights of the child before the enactment of Child Rights Act 2003 and Nigeria Child Rights Law 2010.
Another distinguished author that has written on the child right in Nigeria is Oshio.
The author discussed the Legal Rights of the Child in Nigeria under the Constitution[43] . The author did a good job by outlining the rights Nigerian child possess under the constitution. However, the rights in the constitution are not exhaustive as it relate to the child, which the Child Rights Act 2003 and Child Rights Law 2010 provide an additional rights to the child.
Bekink in his book titled „A Child Divorce‟, “A break from parental
responsibilities and rights due to the traditional socio-cultural practices and belief of the parents. Work on the parental responsibilities and duties, which should be exercised in the interest of the children”.[44] The emphasis of the author on the interest of a child is essential as the Child Rights Act 2003 and Child Rights Law 2010 are guided under the principle of best interest of the child which the research work considered important, although the rights of the children were not spelt out by the authors.
Fredrick in first star‟s National report card on legal representation for children titled “A Child‟s Right to Counsel”[45] examined the rights of a child to counsel which is an important segment of this research work. However, the author dwells on the rights to counsel while this research work considers other rights.
Ayua and Okagbue, wrote on “The Rights of the Child in Nigeria”[46] which considered majorly the Rights has contained in the Children and Young Persons
Act and other various laws which were written before the enactment of the Child Rights Act 2003 and Nigeria Child Rights Law 2010, therefore could not have been able to write on the Rights as provided in the Child Right Act and Child Right Law and the challenges therein.
Abdul wrote on the legal aspect of child protection in Nigeria[47] therefore the work is relevant. However, the author did not identify the challenges with the implementation of the rights provided in the law.
Ahmed A.B. wrote on “An Appraisal of the Legal Rights of the Child in
Nigeria”,[48] the author did an intelligent work by establishing the fact that the child rights is part of the fundamental rights as contain in 1999 constitution which is the basis for the legislation of other laws including the Nigeria Childs Law 2010.
1.8 Organizational Layout
This research work is divided into six chapters. Chapter one examines the general introduction of the dissertation. It provides for the aim and objectives, justification of the research, literature review.
Chapter two discusses the development of children‟s rights under international law, that it considered the United Nation Convention on the Rights of the child, African Charter on the Rights and welfare of the Child, and the various rights provided for by these two international instruments.
Chapter three examines the rights of the child under Nigerian laws and in achieving this, the provisions of the Constitution, Criminal Code and Penal Code,
Children and Young Persons Law, Child Rights Act, Trafficking in Persons (Prohibition) Enforcement and Administration Act and National Drug Law Enforcement Act were considered as they relate to the child protection.
Chapter four Analyses the Rights of the Child under the Nigeria Child Right Law.
Chapter five deals with the Enforcement Mechanism as provided by the law.
Chapter six concluded the research by outlining the summary, observations and stating suggestions thereto.
[1] United Nation Convention on the Rights of a Child
[2] st
www.womenaffairs.gov.ng/…6th%20Nigeria%20cedaw%20report%20fi... 1 August, 2015
[3] st
http://disnaija.com/…/unicef–worries–over–merging–of–children–with–criminals... 1 August, 2015
[4] st
www.allafrica.com/stories/200408040683.html 1 August, 2015
[5] st
www.salvationchambers.com/102.pdf 1 August, 2015
[6] st
www.lindaikeji.blogspot.com/2011/02/acid–girl.html 1 August, 2015
[7] st
https://plateaunewsonline.wordpress.com/…/the–plateau–state–ministry–of– 1 August, 2015
[8] st
www.unicef.org/nigeria/protection_2169.html 1 August, 2015
[9] st
www.ekitistate.gov.ng 1 August, 2015
[10] st
www.childdevelopmentconcern.com/popularization%20%of%20child’s%20... 1 August, 2015
[11] st
www.sunnewsonline.com 1 August, 2015
[12] st
www.unicef.org/nigeria/child_rights_legislation_in_Nigeria.pdf 1 August, 2015
[13] st
http://www.unicef.org/nigeria/protection_2169.html1 August, 2015
[14] st
www.thetidenewsonline.com/…/domesticating–child–rights–law–…the–riv... 1 August, 2015
[15] st
www.punchng.com 1 August, 2015
[16] st
www.jigawastate.gov.ng/staticpage.php?id=154 1 August, 2015
[17] st
www.lagosstate.gov.ng/childrightslaw.pdf 1 August, 2015
[18] st
www.justiceanddemocracy.org/child_right.pdf 1 August, 2015
[19] st
www.aksonline.com.ws033.alentus.com/child_rights_law.aspx 1 August, 2015
[20] st
www.deltastate.gov.ng/index.php/template/…/896–ministry–of–justice 1 August, 2015
[21] st
www.dailytimes.com.ng 1 August, 2015
[22] www.thetidenewsonline.com/…/domesticating–child–rights–law–…the–riv... 1st August, 2015 26www.dailyindependentnig.com/…/ebonyi–children–marked–broadcasting–day/ 1st August, 2015 27 Section 4 (2) Nigeria Child Rights Law, 2010
[23] Section 4 (1) Ibid
[24] Section 7 (1) Ibid
[25] http://www.unicef.org/rightsite/237.htm12th February, 2013.
[26] S. 277, Child Rights Act 2003, Laws of the Federation of Nigeria 2004 Volume 5 Chapter C50 32 Section 2, Nigeria Child Rights Law, 2010.
[27] Children and Young Persons Act 1958
[28] Children and Young Persons Law of Nigeria
[29] The United Nation Convention on the Rights of the Child
[30] www.oxforddictionaris.com/definition/english/child. 1st April, 2012
[31] S 1 (3) Nigerian Children‟s Trust Fund Act 1990 Laws of Federation 2004 Volume II.
[32] Ayua I.A, and Okagbue I, The Rights of the Child in Nigeria, Intec Printer Limited, Ibadan,(1996) P.30 39Garner B.A, Black‟s Law Dictionary Ninth Edition, P. 271.
[33] Okon vs. State (1988) 1 NWLR Pt 69 at 173
[34] (2005) 5 SCNJ 139
[35] Criminal Procedure Law (CAP 30) Laws of Ogun State 1978
[36] R. vs Carton (1945) 1 CH Div 372
[37] Aboki, Y. Introduction to legal research methodology. 2nd edition, Tamaza publishing company limited Zaria (2009)
[38] Ibid
[39] Aboki, Y. Introduction to Legal Research Methodology. 2nd Edition, Tamaza Publishing Company Limited, Zaria (2009)
[40] Aliyu I.A. Sharia and the Child Rights Act 2003: A case of incompatibility In: Aliyu I.A. (ed) Alternative Dispute
Resolution and Some Contemporary Issues, Advocate Chambers, Faculty of Law, ABU Zaria, 2010
[41] Meron T., Human Rights In International Law: Legal And Policy Issues, Clarendon Press, Oxford. (1984)
[42] http://hdi.handle.net/10500/1217128th December, 2012
[43] www.nigerialawguru.com/–/human%20rights%20law,15thMarch, 2012
[44] http://hdl.handle.net/10500/1217128th December, 2012
[45] www.caichildlaw.org/misc/3rd_Ed_chi... 28th July, 2012
[46] Ayua I.A and Okagbue .I, The Rights of the child in Nigeria, Intec Printers Limited, Ibadan, (1996) P.30.
[47] Abdul M.B. The Legal Aspect of Child Protection. A Critical Appraisal, Paper Presented at the Workshop on Procedure and Child Related Issue. Organized by Nigeria Child Right Implementation Committee held at Abdulsalam Youth Centre, Minna. 24th May, 2013.
[48] Ahmed A.B. “An Appraisal of the Legal Rights of the Child in Nigeria”, Bayero Journal of Private and Commercial Law Journal (2015) Vol. 1, No. 1.
Criminal Justice Process: The Enforcement Of Rights Of The Children In Nigeria