LEGAL IMPEDIMENTS ON THE PRACTICAL IMPLEMENTATION OF THE CHILD RIGHT ACT 2003 by Akin Olawale Ogundayisi

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LEGAL IMPEDIMENTS ON THE PRACTICAL IMPLEMENTATION OF THE CHILD RIGHT ACT 2003* Introduction The general frameworks within which human rights are protected in Nigeria are enshrined in the 1999 Constitution of the Federal Republic of Nigeria. Chapter IV contains an elaborate Bill of Rights. The right guaranteed include: the rights to life1, the rights to personal liberty2, the rights to fair hearing3 and the right to freedom of movement4 among others. Section 42 prohibits unjustifiable discriminat
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  LEGAL IMPEDIMENTS ON THE PRACTICALIMPLEMENTATION OF THE CHILD RIGHT ACT 2003* Introduction The general frameworks within which human rights are protected in Nigeria are enshrinedin the 1999 Constitution of the Federal Republic of Nigeria. Chapter IV contains anelaborate Bill of Rights. The right guaranteed include: the rights to life 1 , the rights to personal liberty 2 , the rights to fair hearing 3 and the right to freedom of movement 4  amongothers. Section 42 prohibits unjustifiable discrimination on basis of “ethnic group, place of srcin, sex, religion or political opinion”. As for penal infractions, Nigeria has two separatecodes, one applying to Southern Nigeria (Criminal Code) and one applicable to Northern Nigeria (Penal Code). These provide for offences against persons, including homicides,assaults and different kinds of sexual and gender specific violations such as rape 5 .In 1996, Nigeria submitted its first report on the implementation of the Child RightsConvention 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 theChild Rights Convention, as this is necessary for its full implementation under Nigerialaw 6 . A first bill on children’s rights had already been elaborately in 1993, but could not be passed into law by the military government, because of apposition from religious groups 1 *Akin Olawale Ogundayisi LL.B(AAUA); Research Consultant. * See Section 33 of 1999 Constitution; See also Musa v. State (1993) 2 NWLR (Pt. 277) 500 2 See Section 35 Ibid; See also Mohammed v. C.O.P. (1987) 4 NWLR (Pt. 65) 420 3 Section 36, Awolowo v. Federal Minister of Internal Affairs (1962) LLR 177 4 Section 41; Williams v. Majekodunmi (1962) 1 All NLR 413 5 Section 357 Cap. 77 LFN 1990 on Definition of Rape and Section 358 on Punishment of Rape; Section259 on Attempt to Rape. 6 CRC, Concluding Observation of the Committee on the Rights of the Child, CRC/c/15/Add.61 30/10/96;See alsohttp://www.unhchr.ch/tbs/doc.nsf/(symbol)CRC.c.15Add61En?OpenDocument;See also Section12 1999 Constitution on requirement for domestication of foreign articles and conventions. 1  and traditionalists. A special committee was subsequently set up to “harmonize thechildren’s bill with Nigerian religious and customary beliefs 7 . The Bill, providing for therights and the responsibilities of children in Nigeria, as well as for a renewed system of  juvenile justice administration, was rejected by the parliament in October 2002- again ongrounds of its contents being contrary to Islamic values, traditions and culture. The mainobjections targeted a provision setting 18 years as the minimum age for marriage. This wassaid to be compatible with religious and cultural traditions in various parts of the country,where girls are given in marriage at a younger age 8 .Many national and international Non-Governmental Organizations, as well as other sectors of the civil society in Nigeria,criticized this decision and forced the legislators to reconsider its decision to oppose to theChild’s Right Bill.Finally, the Child’s Right Act was adopted in September 2003 9 .This was a right step in theright direction. Nonetheless, very few states have passed the Child Rights Act into law.This article is therefore poised to examine the various legal impediments in the practicalimplementation of the Act since it has been legislated. This will include an in depthanalysis of its content and other circumstances that could either facilitate or hinder itsimplementation both nationally and internationally. Domestication of the Convention on the Rights of the Child Generally, the convention on the Rights of the Child enjoins that: 7 Http://www.irinews.org/print.asp?ReportJD=30878  8 Ibid 9 http://www.unicef.org/WCRO_Nigeria_Factssheets.at. p.2 2   Member states shall undertake to disseminate the conventions principlesand take all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present convention 10 . Against this background, a draft Child Rights Bill aimed at principally enacting into law in Nigeria the principles enshrined in the convention on the rights of the child and all charter on the rights and welfare of the child was prepared in the early ‘90s. But it is only after about ten years with several Heads of Government and geared debates by the parliamentarians that the Bill was eventually passed into law by the National Assembly inJuly 2003. It was assented to by the president of the Federal Republic of Nigeria, Chief Olusegun Obasanjo in September 2003, and promulgated as the Childs Rights Act 2003 11 .It must be noted here that the provisions of the Act supercede all other legislations thathave a bearing on the rights of the child 12 . Having been enacted at the national level, thestates are expected to formally adopt and adapt the Act for domestication as state laws.This is because issues of child rights protection are on the residual list of the Nigeriaconstitution, giving states exclusives responsibilities and jurisdiction to make laws relevantto their specific situations. State laws inimical to the rights of the child are also to beamended to conform to the Act and the Child Rights Convention.Presently, the Child Rights Act has been promulgated into law in 15 states: Abia, Anambra,Bayelsa, Ebonyi, Ekiti, Imo, Jigawa, Kwara, Lagos, Nassarawa, Ogun, Ondo, Plateau,Rivers and Taraba. 10 http://www.unice.org/wcaro/WCRAO_Nigeria_Factsheetsat p.2 11 Ibid 12 See for example “Trafficking in Persons (prohibitions) Law Enforcement ad Administration Act whichwas passed into law on 14 th July 2003. 3  Definition of the Child The Child’s Right Act 2003 passed into law in the Federal Capital Territory (Abuja),defines a child as person who has not attained the age of eighteen (18) years. However,according to Sec. 2 of the Children and Young Person Act, enacted in Eastern, Western and Northern regions, a “child” means a person under the age of fourteen years, while “young person” means a person who has attained the age of fourteen years and is under the age of seventeen years.Furthermore, the Immigration Act stipulates that any person below 16 years is a minor,whereas the Matrimonial Causes Act 1970 puts the age of maturity at 21years 13 . The latter Act becomes irrelevant in practice, since the individual states their own age for marriage.As for penal responsibility, Sec. 50 of the Penal Code (North) states: “No act is an offence which is done by a child under seven years of age; or by a child above seven years of age but under twelve years of age who hasnot attained sufficient maturity of understanding to judge the nature and consequence of such act.” These are only some examples of different ages enshrined in a multitude of legal texts andin customary law all over the country. These varieties in the minimum age limit pose a lotof problem in the process of interpretation. This can cause discrimination between childrenof same age in different parts of the country.It important for the government to review this aspect with a view to making a particular ageworkable for the purpose of implementing the Child Rights Act. 13 But it allows person below this age to be married with the consent of the parents. 4
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