Funmilayo Odude, Legal Practitioner, Damod Law Practice
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Ensuring the Child’s Rights Act protects Nigerian children 16 May 2022
The rights of the Nigerian child have come under scrutiny following the scandal involving a leaked video of children from Chrisland School, Lagos, engaging in sexual activity while on a school trip in Dubai. This comes barely four months after the death of a pre-teen student, Sylvester Oromoni, of Dowen College, also in Lagos State, following an injury.
Sylvester’s family had first claimed that the young boy had suffered injuries from beatings as a result of bullying by other students at the school who were trying to initiate him into a secret cult. Investigations by the Lagos State government, which included an autopsy conducted by ten pathologists from different parts of Nigeria, however revealed that the young boy’s death was caused by “septicaemia following infections of the lungs and kidneys arising from the ankle wound.”
Many medical practitioners are of the view that his death was preventable had his injury been swiftly treated. Dr. Soyemi, who led the team of pathologists that conducted the autopsy, confirmed this when he said that sepsis, which led to the death of the boy, could have been treated with massive doses of intravenous antibiotic, intravenous fluid, and blood transfusion.
In both cases, there have been clear omissions and dereliction of duty by the caregivers and or legal guardians of the children. But there have been diverse views on the incidents, based on societal norms and personal dogma, mostly underpinned by religious sentiments. These events, however, raise concerns over the legal structure that protects the most vulnerable members of our society: children.
It is not enough for these events to make news cycles, have investigations conducted, the schools involved shut and re-opened, without recourse to the legal remedies available. Where there are none, stakeholder engagements are necessary to ensure such remedies and legal protection are created.
Nigeria enacted the Child’s Rights Act in 2003 thereby giving consent to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The rights that enure to children under Sections 3 to 20 of the Child’s Rights Act include the fundamental rights enshrined in the Constitution; and the right to survival and development, right to name, freedom of association and peaceful assembly, freedom of thoughts, conscience and religion, right to private and family life, right to freedom of movement, right to freedom from discrimination, right to dignity of a child, right to leisure, recreation and cultural activities, right to health and health services, right to parental care, protection and maintenance, right to free, compulsory and universal primary education, right of a child in need of special protection measure, right of the unborn child to protection against harm, and so on.
The Act further provides for the contractual rights of a child, the responsibilities of both a child and a parent. The Act criminalizes acts such as child marriage and betrothal, child trafficking, use of children in criminal activities, abduction, exploitative labour, forms of sexual abuse and exploitation, tattoos and skin marks, harmful publication, exposition to narcotic drugs and psycho-tropic substance, and recruitment of children into the armed forces.
However, only 25 out of the 36 states in the country have domesticated the Act into laws applicable in their states. This has frustrated the uniform implementation of the Act as is evident in the many religious, cultural, customary or traditional practices that are still prevalent in some of the states, which are inconsistent with the provisions of the law, one of the most notable being child marriage.
Social protection schemes of the government that protect children are mostly non-existent. The poverty level in the country, which expresses itself in the number of out-of-school children begging daily on the streets of most state capitals, is likely to overwhelm any social safety net scheme that currently exists. The Child’s Rights Act, however, creates a structure upon which one can be built with respect to the duties it imposes.
Enforcement of the provisions of the Act is mostly carried out at the level of the state governments. Applications to courts for child assessment orders or emergency protection orders are made by “a State Government or appropriate authority.” The Act establishes the Family Court as a division in both the magistrate and high court levels. These are the courts with the jurisdiction to entertain matters involving the child, including the making of the child assessment orders or emergency protection orders as well as other matters such as fostering; the magistrate courts having jurisdiction over the adoption of children.
Under the Act, the state government is required to keep a register of domestic child minders, persons and premises that provide daycare services to children under the age of six years, as well as prescribe conditions and regulations for them in addition to those prescribed in the Act. Section 172 of the Act imposes a duty on the state government to provide day care for children in need within the state who are not more than six years old; and not yet attending school, as is appropriate. The duty to provide daycare extends to a child who is attending school where such daycare is required outside school hours or during school holidays. The Act further enjoins the state government to provide facilities, including training, advice, guidance and counseling, for persons caring for children in day care; or who at any time accompany those children while they are in day care.
Section 174 imposes a duty on a state government to provide accommodation for a child in need within the state who appears to require accommodation where there is no person that has parental responsibility for the child; or the child is lost or has been abandoned or runs away from home; or the person who has care for the child is prevented, for any reason whatsoever, from providing the child with accommodation or care; or where the appropriate authority considers that the welfare of the child would be seriously prejudiced if the state government does not provide the child with accommodation. In furtherance of this, section 186 imposes a duty on the state government to make arrangements to secure homes, known as community homes, for the care and accommodation of children looked after by it, and for purposes connected with the welfare of children.
By virtue of their vulnerability, children must be under care – either of a parent, guardian and a person in loco parentis (a person or organization who has a legal responsibility to take on some of the functions and responsibilities of a parent). While the first and established right and corresponding duty over the welfare and care of a child is in the parental authority, it is clear from the spirit of the Child’s Rights Act that the government, in this case, the state governments have the ultimate duty of ensuring the protection of children. But how does it do so where it has no enabling law empowering it? And where the laws have been domesticated, are the various organs adequately funded, trained and equipped to offer the protection they are required to provide by the law?
We must ensure uniform protection for all Nigerian children. Apart from the states that have refused to enact laws protecting children, some other states have some divergent provisions. For example, the Child’s Rights Act and the African Children’s Charter define a child as a person below 18 years. But various state laws provide for different ages. The Federal Government should take the lead in ensuring harmonization of the provisions of the state laws in conformity with the Act as well as uniform implementation. It might require constitutional amendment to include children’s rights in Chapter IV of the Constitution to ensure unification across the country. This would eliminate all loopholes giving rise to contradictory and non-existent laws.
Considering the multi-religious and multi-ethnic nature of the country, engagement with both religious and traditional leaders is invaluable to the success of any legislative or social structure enacted. These leaders should be legally recognized as persons in loco parentis to children under their sphere of influence. But as it is clear from the Act, the ultimate responsibility for the Nigerian child rests with the state governments. They should rise up to this important role.
Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).