Child’s Personal Liberty And Parental Control: A Legal Opinion On The Provisions Of Section 35(1)(D) Of The Constitution, 1999 (As Amended) By: Hameed Ajibola Jimoh Esq.

Section 35(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- , it is provided thus ‘Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with  a procedure permitted by law – (d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare; …’. (Underlining is the writer of this paper’s). This paper is an attempt at raising some legal views and opinions on the said provisions of the Constitution. First, the issue of someone being a parent or guardian has always been an issue philosophically as to the control of a child by his parent or guardian. It has also been as if there is no law backing parenthood or guardianship in Nigeria. But considering the above provisions of the Constitution, the right to personal liberty of a child has been limited by the Constitution itself. However; such control shall be in accordance with a procedure permitted by law. Also, what is the procedure referred to by the Constitution permitted by law is not defined by this provision of the Constitution, rather, what is clear is that the Constitution has by the expression ‘in accordance with a procedure permitted by law’ delegated such power to other provisions of laws made either by the Constitution itself, an Act of the National Assembly or a Law of a State. Under the provisions of section 55(1) of the Penal Code Law, ‘Nothing is an offence which does not amount to the infliction of grievous hurt upon any person and which is done (a) by a parent or guardian for the purpose of correcting his child or ward being under eighteen years of age’. Then by its subsection (2), ‘No correction is justifiable which is unreasonable in kind or in degree, regard being has to the age and physical and mental condition of the person on whom it is inflicted; and no correction is justifiable in the case of a person who, by reason of tender years or otherwise, is incapable of understanding the purpose for which it is inflicted’. Under the provision of section 1 of the Criminal Code Act, ‘grievous harm’ which is equivalent to ‘grievous hurt’ under the Penal Code above, means ‘any harm which amounts to a maim or dangerous harm as defined in this section, or which seriously or permanently injures health, or which is likely so to injure health, or which extend to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member, or sense’. The word ‘maim’ is also defined by the Criminal Code Act in section 1 to mean ‘the destruction or permanent disabling of any external or internal organ, member or sense’ and ‘harm’ means ‘any bodily hurt, diseases, or disorder, whether permanent or temporary’. Furthermore, the point being made by the writer of this paper is that while it is correct that while a child is under the control of his parent or guardian, such parent or guardian has not been given absolute control over such child. The law still demands from such parent or guardian to observe and utilize this privilege (and not a right) of control in the best interest of the child but where such parent of guardian fails in doing this, then, such privilege could become a liability for such parent or guardian whether in civil or criminal. For instance, The Violence Against Persons (Prohibition) Act, 2015-herein after referred to as VAPPA as applicable to Abuja, by sections 28 to 37, specifically, provides for ‘protection order’, which is defined by section 46 of the VAPPA to mean ‘an  official  legal  document,  signed  by a Judge that restrains  an individual  or State  actors  from  further abusive  behaviour towards  a victim’. And by the same section 46 of the VAPPA, a ‘victim’ is defined as ‘(a)  any person or persons, who, individually or collectively,  have suffered harm,  including- (i)     physical or mental  injury, (ii)   emotional suffering, (iii)    economic loss,  or (iv)   substantial  impairment  of their fundamental rights,  through acts or  omissions  that  are  in  violation  of this  Act  or the criminal  laws of the country; and (b)    includes  the immediate  family or dependants  of the direct victim and any  other  person  who  has  suffered  harm   in   intervening  to  assist victims in  distress’. Of importance too is the definition of what amounts to violence which is also defined by section 46 of the VAPPA thus` ‘violence”  means  any  act  or  attempted  act,  which  causes  or  may  cause any  personphysical,   sexual,  psychological,  verbal,  emotional  or  economic  harm  whether   this occurs in  private or public life,  in peace time and in conflict situations’. Also, ‘violence  in  the  private  sphere’  means  any  act  or  attempted   act  perpetrated   by  a member of the family,  relative, neighbour or member of a  community,  which causes  or may cause any person  physical,  sexual, psychological, verbal,  emotional  or economic harm;’. Furthermore, section 28 of the VAPPA has provided for the procedures to follow in makin g an application to the Court for protection order thus ‘28.   (1)    An application  for a protection  order may,  be made before the High  Court following a  complaint  of violence  by  the  complainant  and  such  order,  if granted,  shall  be effective throughout  the Federal  Republic of Nigeria  and no time limit or prescription shall apply  in  relation to a person   seeking to apply for such protection  order. (2)    Any complainant may, in the prescribed manner, apply to the Court for a protection order. (3)    If the complainant  is  not  represented  by counsel,  the police  officer  with  whom  a complaint  of violence has  been lodged  shall  inform  the complainant of the remedies he or she  may be entitled to under this Act including the right to lodge a  criminal complaint  against the respondent  if a  criminal  offence  has  been  committed  under this Act. ( 4)   Notwithstanding the provisions of any other law,  the application  may be brought on behalf of  the  complainant  by  any  other  person,   including  a  police  officer,   a protection  officer,   an accredited  service  provider,  a  counselor,  health service provider,  social worker or teacher  who has  interest  in  the  well-being of  the complainant. Provided that the application shall be brought with the written consent of the complainant, except in circumstances where the complainant is – (a)    a minor; (b)    mentally retarded; (c)    unconscious;  or (d)    a  person  who the court is  satisfied  is unable to provide  the  required consent. (5)    Notwithstanding the provisions of any other law,  any minor,  or any person on behalf of a  minor,  may apply to the Court for a  protection  order without the assistance  of a parent, guardian or any other person and supporting affidavit by persons who  have knowledge of the matter concerned may accompany the application. (6)    The application and affidavits shall be filed in Court. In any case, the application shall be made in accordance with the Schedule to the Act. See: section 37 of the VAPPA. Also, from the section, it should be observed most importantly that a minor (child) too can apply to court either alone or by another person who has been authorized to apply on his behalf, notwithstanding the provisions of any other law. It is also important to note that one does not need to become a victim already before one can apply for the protection order as one can apply where one alleges that any person (including parent or guardian) has committed or that there is imminent likelihood that he may commit an act of domestic violence against his (complainant’s) person. Furthermore, it is the submission of the writer of this paper that one of those procedures referred to by the Constitution above, is or are the procedures laid down in the Child’s Rights Act or Law and the Anti-Torture Act, 2017. Therefore, the fact that a parent or guardian has been conferred the privilege of the control of the child by the Constitution would not justify any abuse of the child or domestic violence committed against the child. Finally, it is submitted by the writer of this paper from the provisions of the Constitution (supra) that a child is entitled to his right to personal liberty subject to the control of his parent or guardian in such a way that is not illegal or unlawful. Also, a parent is not justified for abusing or maltreating a child just because he is utilizing the privilege of control over the child as such control is a privilege which can be taken away (including the child) from the custody of such parent or guardian in deserving cases by the law. E-mail: hameed_ajibola@yahoo.com]]>