By Kehinde Adegbite
Reminiscing on my childhood in the late 70s and early 80s reminded me of what people would say when a parent who had been begged to stop beating his/her own child proved recalcitrant – “leave him, let him kill his child…after all, the boy is his own…” As at that time, the thinking, both among the children and the adults, was that – parents had absolute control and power over their own children. In fact, this thinking was extended to the teachers. The teachers were feared more than the parents. In the 90s, while in secondary school, I remember how a teacher beat me mercilessly and I dared not report at home if I didn’t want to receive a worse beating from my parents. Perhaps, the only thing that could justify reporting a parent to the Police then was if a parent killed his or her own child in the name of punishment. For in those days, not many knew anything about children’s rights. Like many other children, after returning from school, I used to hawk goods for my mother. There were occasions then that you might be denied a meal or two in a day if you misbehaved. Thanks for the Law, most of what we saw as normal then, looking back, were no less than child’s right abuses.
Digital technology arrived along the way and brought smartphones, computers, social media (Facebook, Twitter, WhatsApp, Instagram, YouTube etc.), emails, websites, blogs, e-learning, e-commerce, forum, online communities/groups and so on which took the medium of communication and interactions to a level never envisaged about 30 years ago. The advent of digital technology has, no doubt, radically impacted on the demands of parenting and childhood experiences these days. It has helped to liberalise the flow of information and exchange of knowledge on any subject-matter and made learning faster like never before. More people, including children, are now aware of children’s rights and implications of children’s right abuses. However, it has also been observed that the same digital technology has opened doors for violations of children’s rights in some other ways. There are questions that need be asked and answered – does the Nigerian law provide enough protection for children’s rights? When does punishing a child amount to child abuse? How has the digital technology promoted awareness and compliance with children’s rights and how has it contributed to their abuses? What is the level of implementation of the extant law on children’s rights? What are the new manifestations of child’s right abuses in this age? Is the law on children’s rights reflective of the challenges of this age? These issues and many more define the focus of this piece.
The consciousness occasioned by the horrors and ruins of the twentieth century following the Second World War dovetailed into the internationalisation of rights which has immeasurably facilitated the discourse, development and primacy of human rights till date. Beyond the limited national application of early human rights documents such as the English Bill of Rights (1689) and the French Declaration on the Rights of Man and Citizens (1789), the humanity was (and is still) blessed with the Universal Declaration of Human Rights, 1948 (UDHR), International Covenants on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), among others. The first international human rights document to specifically address the needs of children was the Declaration on the Rights of the Child, 1924 drafted by the League of Nations. The Declaration was adopted by the United Nations General Assembly in 1959 and by 1989, it was upgraded, with more expanded provisions, to a binding international children’s rights treaty – the United Nations Convention on the Rights of the Child (CRC).
Nigeria, being a signatory to the CRC having ratified it since 1991, was only able to muster sufficient will to enact the Child’s Rights Act in 2003, modelled after the CRC. Regrettably, however, the CRA lacks nationwide applicability. Only states that have replicated it as a state law can give the protection that the CRA offers to children within their territories. Another treaty devoted to the peculiar needs of children to which Nigeria is a signatory is the African Charter on the Rights and Welfare of the Child (1990). More than sixteen years after the federal legislature passed the CRA, a good number of northern states are yet to replicate it as a state law and the implications of the absence of such important legislation are manifestly obvious. Meanwhile, as far back as 1943, Children and Young Persons Ordinance, later and till date known as the Children and Young Persons Act (CYPA), was enacted but this is not a children’s rights document. Each state of the federation has its own Children and Young Persons Law. It is a statute enacted to regulate criminal proceedings involving children and young persons, though it provides for a number of rights to be observed in the trial of such persons. Few other statutes exist with nationwide application containing certain provisions protective of some portions of children’s rights and interests. However, none of such statutes extensively addresses matters bordering on children’s rights as the CRA/Law does. It may be asserted, without equivocation, that the existence of such legislation as the Labour Act and Trafficking in Persons (Prohibition) Enforcement and Administration Act is nowhere close to being a substitute for a child’s rights law in those states that are yet to enact their CRL. Issues of children’s rights are far more wide-ranging than child exploitation, trafficking, labour or child justice administration that those other statutes, among other non-child related issues, address. While the CRA does not specifically repeal any pre-existing laws relating to children, its provisions supersede all such laws and are superior to them.
Who is a child? Like the CRC, the CRA in section 277 defines a child as “a person under the age of eighteen years.” This is also the position in most of the CR Laws of states that have passed it because what the law-makers in those states did was simply to literally adopt the provisions of the CRA verbatim, though with necessary modifications for making it conform to certain peculiarities of their respective states. In some state laws, age of adulthood starts from 16 which means, in such states, a child is a person below 16. In section 21 of the CRA, it states, “No person under the age of 18 years is capable of a valid marriage and accordingly, a marriage so contracted is null and void and of no effect whatsoever.” Section 22 goes further to state, “No parent, guardian or any other person shall betroth a child to any person.” However, with the existence of a contradictory constitutional provision, the question of who is a child is not as clear as the CRA paints it. Section 29 (4) (b) of the Constitution states, but for a clearer picture, it will be better that sub-subsection (a) of the section is also reproduced, “For the purposes of subsection (1) of this section – (a) ‘full age’ means the age of eighteen years and above; (b) any woman who is married shall be deemed to be of full age.” The manifest import of this constitutional provision is that the age of childhood is generally not fixed in Nigeria because, the Constitution being the grundnorm, any law that is consistent with it is null and void as to the extent of such inconsistency. The Constitution is supreme. By virtue of the Constitution, once a person is married, even if he or she is below 18 years of age, such person would be deemed to be an adult. In essence, the CRA’s provision which prohibits child marriage is of no effect in the face of the Constitution. In spite of the CRA and CR Laws in many states, child marriage is still prevalent in Nigeria and anyone charged for marrying a child can seek for exoneration on account of the Constitution. Some members of the National Assembly once made frantic efforts to amend this so as to remove the ambiguity it creates with the CRA but some other members, mainly from the north, resisted the move. Hence, it is no surprise that all the remaining eleven states that have not passed the CRA into law are in the north.
While the CRA constitutes the primary legal document on children’s rights in Nigeria, it must also be stated that the same CRA affirms the entitlement of children to all the fundamental rights contained in the Chapter IV of the Nigerian Constitution which hitherto appeared like the exclusive benefits of the adults. The CRA confers a long list of rights on children, taking into cognisance their vulnerability and susceptibility to abuse and exploitation. Children, under the CRA, have such rights as right to survival and development, right to name, right to leisure recreational activities, right to parental care, protection and maintenance, right of a compulsory and universal education, among others. The underlying philosophy of the CRA and ditto for the CR Laws of states is that parents, guardians or care-givers bear a responsibility to provide conducive environment for the proper development of a child, bearing in mind a child’s social, moral, educational, mental, spiritual, emotional and physical well-being. Closely connected to this is the provision which requires all persons and authorities making decisions on matters relating to children to accord maximum consideration to the overall best interest of the child. Section 1 of the CRA states, “In every action concerning a child…the best interest of the child shall be the primary consideration.” A similar provision exists under the Matrimonial Causes Act. Every action or decision which has to be made concerning a child has to pass the test of “best interest”, even if such action is motivated by an altruistic feeling for the benefit of the child in the first place. This consideration plays out more prominently in matrimonial proceedings where custody of a child is in issue.
Is corporal punishment in the best interest of a child? It should be pointed out that the CRA does not specifically outlaw beating of a child especially by parents, guardians or persons who exercise control over such child. However, inflicting physical injury on the child may amount to an abuse which may constitute a civil wrong against the child or a crime, depending on the extent of such injury. In essence, while it remains a popular thinking among most Nigerians that a child is spoilt when the rod is spared, such sentiments that parents bear the responsibility to instill “discipline” on their wards must be guided with caution. Recently, the South African Constitutional Court in Freedom of Religion South Africa v Minister of Justice and Constitutional Development & Ors. ruled that smacking of a child is illegal. Following this judgment, the erstwhile defence of “reasonable and moderate chastisement”, recognized under the South African law, is no longer tenable. When one recalls how some parents and teachers have inflicted grievous bodily harm on children, causing death in some cases, one is persuaded to urge Nigerian courts to toe the line of the South African Court’s decision by relying on section 11 of the CRA which prohibits torture, inhuman or degrading punishment so as to stop all forms of corporal punishment. Pursuant to this provision, Lagos State remains the only state in the country that has banned corporal punishment in schools.
From 1989 when the CRC came into force and now – a little over three decades – the world has really changed. Digital technology is the huge difference between that time and now. It has really changed the face of the world, heralding a vista of opportunities but this is not without its accompanied challenges. We now live in a digital environment with pervasive intrusions, influences and transformation that come with the time, palpably seen in almost all spheres of human life – social relations, education, entertainment, sports, media, business, information, communication, networking, lifestyle and so on. The CRC was not prepared as a legal response with the full contemplation of the present-day realities and challenges posed by the digitalised 21st century world especially in relation to the care and proper development of a child. Obviously, the CRC was prepared in response to the challenges of the 20th century world. While many, if not most, of the old challenges of yesteryears are still very much with us, the 21st century has presented us with new and additional challenges and threats. Today’s children are not immune from the ills of the present world even as they are still plagued with the old problems of child exploitation, sexual abuse, hunger, ritual killing, stigmatization, etc. Vicki Coppock and Jenna K. Gillett-Swan, in their paper, made this point, “…digital technology also comes with considerable challenges that have a bearing on the potential for violation of children’s rights…”
The CRA is 17 years old in Nigeria, particularly in the Federal Capital Territory, Abuja where it is primarily applicable. Ages of CR Law vary in all the twenty-five states, out of the total thirty-six Nigerian states, that now have it in place. For instance, Oyo and Lagos States passed the law in 2006 and 2007 respectively. Yet, in almost every part of the country, children generally remain an endangered species. Not much difference can be noticed between the lots of children in those states that have the CR Law and those states where the wielders of political power care less about the rights of children. Generally, cases of child marriage, child labour (e.g. street hawking and underage housemaids), female genital mutilation, exploitation, trafficking, out of school children, underage beggars, child prostitution and lack of medical care still thrive as if no legislation on the children’s rights exists anywhere in Nigeria. The law exists but compliance is almost non-existent due to a variety of factors such as religious beliefs, culture, poverty, and illiteracy. Enforcement of the law has also not been effective and proactive as law enforcement agents are mostly lackadaisical, ignorant and corrupt.
Meanwhile, with the benefit of digital technology, cases of child abuse have become much more difficult, unlike times past, to be covered up. However, it may be inaccurate to say that all cases of child’s right abuses do come to public knowledge. Digital technology is being deplored to expose all shades of social ills of which child abuse is one. As much as the exposures facilitated by the digital technology are desirable in some cases, they have only complicated the discourse of child’s right abuses and constituted further abuses in some others. Arguments arise in many quarters whether some of the incidences of child abuse or some incidences where children are perpetrators of abuse against other children should be brought on the cyberspace at all. Opinions differ in some cases but in some others, it is clear that exposures constitute further breach of children’s rights. Sadly, the law cannot be said to be so clear and settled on some of these occasions.
Examples of cases of child abuse that have been exposed with the use of digital technology abound. Citing a couple of such incidences may be apt at this point. Sometime late 2019, a video went viral of a Zambian father who slapped and verbally scolded his teenage boy for failing his school exams in spite of the huge cost of his school fees. It was later widely circulated that the father lost his prized job because the Zambian authorities didn’t take lightly to the manner he treated his son. Earlier this year, a video was widely circulated on the social media of a man (most likely a Nigerian father) beating his teenage girl for joining a WhatsApp group in disobedience to his warning. Some saw his action as an abuse of the girl’s right to dignity of her person. Also in 2019, a video of a female student of the Queen’s College, Lagos who was seen being openly reprimanded by her teachers for wearing fake eyelashes and painted nails to school, went viral. Just recently too, a four-year-old boy was recorded in a video and shared on social media begging his mother to calm down as she threatened to beat him. In all these cases, it was debated on different social media platforms whether it was not a case of child abuse to bring such incidences to the cyberspace. However, in some other instances, the use of social media has been applauded for exposing cases of parents or guardians who dealt ruthlessly with their underage domestic staff, inflicting physical injuries on them. It is no doubt that the digital technology holds tremendous benefits for children and adults but fears of its dangers especially in relation to the general safety and well-being of children abide. Is it not a case of violation of right to privacy when adults post pictures of children on the digital space when these children cannot yet decide for themselves?
The legal framework on the rights of children in Nigeria is far from being perfect. The provisions of the CRA must be made to be responsive to the challenges of this age primarily occasioned by digital technology. Children use digital devices, the internet and social media platforms, among others, like adults even when some of the contents are inconsistent with their well-being and interest. Cyber-bulling, pornography, race hate, vulgar abuse, lewd communication, fake news, and violence are now rife in the cyberspace. In spite of the lofty provisions of the CRA, it is not yet time for governments, policy-makers, international community, individuals, civil society organisations and other stakeholders to calm down. Efforts should be intensified to ensure that the provisions of the CRA are faithfully and fully implemented. Advocacy should also be intensified to the effect that the CRA is passed in all the remaining states of the federation that are yet to do so. In addition, regulations can be made pursuant to the CRA so as to ensure that the cyberspace is regulated in such a way that due consideration is accorded to the best interest of the child. Where necessary, amendment should be made to the existing legislation especially in relation to emerging behavior and conduct induced by digital technology with particular reference to a child’s right to privacy which will seek to discourage indiscriminate postings of children’s pictures online and such materials that may be injurious to their care and future.
Kehinde Adegbite teaches Law at the Faculty of Law, Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria.
ICCPR and ICESCR were ratified in 1966 and entered into force in 1976. Both human rights documents are regarded as the international bills of human rights.
The League was founded in 1920 after the First World War and lasted till the formation of the United Nations in 1945.
“The Child Rights Manual”, http://www.barhumanrights.org.uk/wp-content/uploads/2013/12/The-Child-Rights-Manual_Nigeria-29.10.13.pdf accessed 17 August 2020.
Matters pertaining to children are not found in the Exclusive Legislative List and as such the National Assembly lacks the legislative competence to extend the application of the Child’s Rights Act beyond the Federal Capital Territory, Abuja.
The Nigerian Government has a treaty obligation to act in conformity with the provisions of the treaty even if it is not domesticated as required by section 12 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
Findings show that as at this year, 2020, twenty-five states out of the thirty-six that make up the federation of Nigeria mainly in the southern part of the country have passed the Child’s Rights Law, while all the remaining eleven states which are yet to do so are located in the north, objecting to certain parts of the law on grounds of cultural and religious beliefs especially those that prohibit child marriage, female genital mutilation and definition of who a child is. See Daniel Ogunniyi, “Nigeria: There Are Still Huge Gaps in Nigeria’s Efforts to Protect Children”, https://allafrica.com/stories/201911240051.html accessed 11 August 2020.
CRA 2003, s. 274 (1) & (2).
Ibid, s. 277. Contrastingly, section 33 of the Cross-River State Children and Young Persons Law (which is in pari materia with the CYPA) defines a child “any person who has not yet attained the age of fourteen years”, and young person as “a person who has attained the age of fourteen years but who has not attained the age of seventeen years.”
Under the Akwa-Ibom State Child’s Rights Law, 2008, a child is defined as any person below sixteen years of age.
CRA 2003, s. 21.
CFRN 1999, s. 29 (4) (a) & (b).
Ibid, s. 1 (3).
Ibid, s. 1 (1).
See generally Eyinna S. Nwauche, “Child marriage in Nigeria: (Il)legal and (un)constitutional?”, https://media.africaportal.org/documents/Chapter_9_2_2015_1.pdf accessed 17 August 2020.
In fact, in 2013, it was reported that a Senator, Alhaji Sani Ahmed Yerima, also a former Governor of Zamfara State, married an Egyptian girl of 13 years as a wife.
CRA 2003, s. 3 (1).
See CFRN 1999, ss. 33 – 46.
CRA 2003, s. 4.
Ibid, s. 5 (1).
Ibid, s. 14.
Ibid, s. 16.
Ibid, s. 18.
Ibid, s. 1.
MCA, s. 71.
See Nanna v Nanna (2006) 3 NWLR Pt. 966, 1.
Iyabo Lawal, “The case against corporal punishment”, https://guardian.ng/features/the-case-against-corporal-punishment/ accessed 17 August 2020.
See generally, Dobrinka Kuzmanovic, et al, “Children in a Digital Age: A Guide for Safe and Constructive Use of Digital Technologies and the Internet”, https://digitalni-vodic.ucpd.rs/wp-content/uploads/2019/08/Children-in-a-digital-age.pdf accessed 17 August 2020
Vicki Coppock and Jenna K. Gillett-Swan, “Children’s rights in a 21st-century digital world: Exploring opportunities and tensions”, https://journals.sagepub.com/doi/full/10.1177/2043610616676025 accessed 12 August 2020.
“Man who slapped son for bad grades loses his MTN job”, https://www.mynigeria.com/NigeriaHomePage/NewsArchive/Man-who-slapped-son-for-bad-grades-loses-MTN-job-354715 accessed 17 August 2020.
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