One of the topics addressed at the NBA AGC 2016.: The Rights Of The Child To Religious Freedom And Education: Two Constitutional Guarantees At Odds In A Secular State?

56TH ANNUAL GENERAL CONFERENCE OF THE NBA 2016

TOPIC: THE RIGHTS OF THE CHILD TO RELIGIOUS FREEDOM AND EDUCATION: TWO CONSTITUTIONAL GUARANTEES AT ODDS IN A SECULAR STATE?

Rephrased By The Lead Speaker To:

“CHILDS RIGHT TO EDUCATION AND FREEDOM OF RELIGION: TWO CONSTITUTIONAL RIGHTS AT ODDS WITH EACH OTHER IN A SECULAR STATE”

Lead Speaker:

Kazeem Olajide Olaniyan (Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan)

Panelists:

Ashafa Sanusi (NBA Oshogbo)

Talbot Ibiwari Obaye-Ekine (NBA Degema)

Mbanogo Udenze (NBA Lagos)

Alozie Echeonwu: (NBA Port-Harcourt)

RAPPORTEURS:

Joyce Opuah, Julie Igbur, Amonia Amaso, Samuel Abasilim, Emmanuella Idele

Session Manager: Aisha Ado Abdullahi

Time commenced: 2:45 pm

1.

Kazeem Olajide Olaniyan

(Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan)

The historical concept of human rights into the development of human rights from the philosophical point of view of rights about 300BC:
Plato laid the foundation of eternal law and universal law derived from and based on the dignity of persons.
Socrates believed and tried to differentiate between natural laws and man-made laws.

St. Thomas Aquinas believed in the Christian rights. Natural laws were set down in the Ten Commandments and the other laws of Moses.
The Rationalists: In the 17th and 18th centuries, a group of persons known as the rationalists provided for what was to become the doctrine of individual rights and they were not subject to laws of God.

The Social Contract Theory: Popularised by John Locke in 1969. The theory posits that the individual has the right to withdraw all the rights he has submitted to the state if the rights were abused. This doctrine of 1969 led to the American development.
British Bill of Rights/American Declaration of Independence: Natural Law took a meaning from what we used to know and emerged the theory of rights and this was first given application to in the British Bill of Rights in 1688 and it formed the basis of American Declaration of Independence in 1776.

The French Declaration of the Rights of Man and the Citizen: In 1789, the French Declaration brought about the treatise signed by the numerous Countries which is being reflected in the International Human Rights Treatise and Instruments.

Human Rights Today:
In the modern concept of rights which is quite different from philosophy, human rights today are those rules contained in instruments like International Bill of Rights, Convention on the Rights of the Child and other Regional Human Right instruments like the African Charter on Human and Peoples Rights.

The concept of human rights is closely linked to the modern state, and refers to the relationship between the individual and the State.
The Rights Of A Child To Education In Nigeria:

The Human Rights Chapter of the 1999 Constitution (as amended) (Chapter 4) does not expressly provide for the rights of the child to education. However the chapter on socio-economic rights (Chapter II) does. The Child Rights Act 2003, came to the rescue. The Child Rights Act 2003 primarily as contained in Section 15(1) (2) and (3) has Sections 3, 5, and 6 as the exception which still falls short of the extant provisions of the enforcement of the Childs’ Rights.

Section 38(1-3) of the 1999 Constitution (as amended) guarantees the freedom of religion for a child.
Of note is the fact that the Child Rights Act 2003 is in tandem with the provisions of the 1999 Constitution. The Child Rights Act cannot be more valid than the Constitution. It only accentuates the Constitution.
Concept Of Secular State In Nigeria:

The word ‘secularism’ is derived from a latin word ‘saeculo’ which an English scholar traced to mean a state of no religion.
From the historical concept of secular state, Nigeria cannot claim to be a secular state with its tacit support of two major religions in the country. For example, government’s support of pilgrimages, allowing persons to hold prayers in public offices, observance of public holidays, etc. of the two major religions to the exclusion of others as contrary to the provisions of Section 10 of the 1999 Constitution(as amended.
Posers
1. Where does Sovereignty reside in Nigeria, in the State or in a divine body?

2. What extent are Nigerian Laws insulated from religious dogmas?

3. Is the Nigerian State neutral and fair in its dealings with all religions?

4. Are Nigerian Legal and educational systems independent of religious dogmas?

5. Does the Nigerian Constitution guarantee freedom of religion and conscience?

6. Does the Nigerian State adhere to the principles of religious pluralism?

Concluded that constitutional rights as enshrined in Section 38(1-3) of the 1999 Constitution (as amended) on the right to freedom of religion which copiously made reference to the educational aspect of religious worship of Nigerian citizen, puts the two constitutional rights as complimentarily important rights to every Nigerian child rather than being at odds with each other in a secular state like Nigeria.

2. Ashafa Sanusi (NBA Oshogbo Branch):

Agreed with the lead speaker to the extent that it does not contravene the right given by the constitution. He is sceptical because of the provisions of section 10 of the Constitution. It will be wrong to say that Nigeria is not a secular state but was designed to be so.
No state should adopt any religion in accordance with section 10 of the 1999 Constitution (1999 Constitution as amended).
Nigeria acknowledges religion and has provisions for any religion.
Under the 1999 Constitution everyone has a right to apply to the Court if aggrieved.
Reference to Section 244 of the 1999 Constitution which provides for the establishment of Sharia Courts in any states that so desire.
Every Nigerian has the right to subscribe to any religion of his or her choice provided such religion and its instruments will not contravene the provisions of the Constitution.

3. Talbot Ibiwari Obaye-Ekine (NBA Degema):

There is no conflict between the right of a child and the 1999 Constitution.
At what point does a child have the right to choose any particular religion?
Under the Child Rights Act 2003, a child is defined to be between the ages of 1- 17 years. A child from a Christian/Muslim background must follow the religion of his parents, he cannot choose. The problem arises in cross-marriages where the child begins to choose either of the religions of the parents.
A child finds it difficult to make a decision until attainment of majority. However, the law allows the child to change his/her religion but is it practicable?

4. Mbanogo Udenze (NBA Lagos)

Nigeria is not a secular state though it was designed to be so by Section 10 of the 1999 Constitution.
The paradox, like the child’s rights to freedom of religion and education if you try to separate them then where are the missionary schools?
Nigerians should make the best use of our diversities and differences.

5. Alozie Echeonwu

(NBA Port-Harcourt)

(i) Given the 1999 Constitution(as amended) is Nigeria a secular state

(ii) Is the child’s right to religious and educational freedom as enshrined in the constitution absolute?

(iii) Should religion occupy public space at the expense of national development?

Section 10 of the 1999 Constitution sets the tone for a secular state but it is profoundly a fallacy. He added that the above section is incongruous with section 244 which provides for the establishment of sharia courts.
Lamented the situation where the Constitution copiously made provisions for Islam in several sections of the 1999 Constitution but without similar reference to other religions being practiced in Nigeria.
It is a mere fallacy to opine or conceive that Nigeria is a secular by any means. Nigeria in practical terms is more Islamic than secular.
Section 45(1) places restriction on the right to practice certain religious rites as enshrined in section 37 and 38 of the 1999 Constitution.
The practice of the use of hijab is religious and should be kept in the private space and not public space in view of the security threat.

6. QUESTIONS AND CONTRIBUTIONS:

1. Okey Akobundu (NBA Jos)

· Contradicted the opinion of the lead speaker and emphasised that Section 38(1-2) of the 1999 Constitution (as amended) refers to public and not private schools.

· Schools fall into public and not private spheres.

· Nigeria is no longer a secular state as it once was.

· Religion is a personal thing and suggested that the Government should provide licence and regulate public places of worship.

2. Chigozirim Nwodum (NBA PH)

· There is right to life upon which the right to education is predicated.

· But what we can be done to make Nigeria conducive for every religion to thrive?

3. Ejiofor (NBA Owerri)

· How one can stop a child that is already fending for the parent from changing his religion?

4. PATIENCE PATRICK-UDOH (NBA Lagos)

· Disagreed with the lead speaker and Alozie Echeonwu.

· Section 10 of the 1999 Constitution allows everyone to decide whichever religion to practice.

· There is a good reason to go back to the direct provisions of Section 10 of the 1999 Constitution if we recognize the public and private sector.