Author: Ibe Okegbe Ifeakandu
Child Trafficking and Rights Violations: Examination of Child Protection under International and Nigeria Legal Provisions
- Introduction
International concerns regarding child trafficking, child labour, exploitation and other forms of violence against children have spanned decades, leading to the adoption of a myriad of counter measures—legal, institutional, and policy, amongst others. These counter-efforts became widespread during the 20th century, with the adoption of the League of Nations Declaration of the Rights of the Child in 1924 (UNICEF: Trevor, 2014); and the UN Declaration of the Rights of the Child in 1959 (UN, 1959). After the Second World War (WWII) that left several children in dire strait, a specific institutional framework-UNICEF was created to help children who were victims, first in Europe; and then the rest of the world (UNICEF, http://www.unicef.org/). Since then, several treaties and institutional measures have been adopted at international, regional, sub-regional and national levels with the aim of protecting children from violence. In addition to these, countries such as Canada and Nigeria have collaborated in different ways to ensure that violence against children is eradicated or at least minimized (Ngwaba & Ifeakandu, 2019). However, the situation of children remains precarious in many parts of the world, particularly Nigeria where children are unfortunately bedeviled with several problems that affect their wellbeing and violate their rights (UNICEF, 2016). A major problem for children emanates from illicit actions of adults, which affect children disproportionately. For example, human traffickers, child laborers, sexual exploiters, including pedophiles usually exploit children in a most profound manner (World Health Organization children are usually exploited by (WHO), 2019; WHO, 2016; UNICEF, 2016; Jordan & James, 2015). Children are also unduly affected by war, armed and non-armed conflicts, insurgency and terrorism, all of which have become common occurrences (UN Secretary General, 2019); and are targeted by criminals due to their vulnerability, frailty, and innocence ( UNICEF, 2019a; Reeves, 2017).
Persons who qualify as children are defined in international and Nigeria child’s rights laws as persons below the age of 18. Violence against children includes sexual exploitation, trafficking for different purposes, child labor, and maltreatment, amongst others. These actions are fostered by prevailing conditions of poverty, bad governance, lack of educational and employment opportunities, harmful socio-cultural practices that sustain child’s rights violations, conflicts-armed or political, and illiteracy. According to International Labour Organization (ILO) and United Nations Office on Drugs and Crime (UNODC), an estimated 40 million people are trafficked globally. Out of this number, 20% or 30% are children. It is unarguable that the consequences of child’s rights violations are enormous both on the child victim and the society at large. For example, psychologically and or physically damaged children often pose problems to their families and to the justice system of the country. In recognition of this fact, the international community adopted a series of legal and institutional measures to counter child’s rights violations. These measures are replicated in Nigeria. Despite the adoption of these measures, the rights of children remain in dire strait, especially in Nigeria where children are increasingly being trafficked, exploited, tortured and subjected to all forms of labour. Therefore, there is need to strengthen measures to ensure child rights protection in the country.
2. Clarification of Concepts
2.1. Definition of a Child
Generally, there have been series of talks, negotiations, dialogues as well as concerns expressed over the dilemma facing children both in Nigeria and globally; but the question that often arises is, who is a child within the framework of law and policy? At international level, the UN Convention on the Rights of the Child (CRC) defines a child as “[…] any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier” (UN, 1989). In Nigeria, the definition of a child is proffered in several laws, which sometimes contradict in meaning and application. For example, the Constitution of the Federal Republic of Nigeria (CFRN), 1999 defines a person of “full age” as a person who is 18 years and above (s. 29 (1)). This definition does not however, apply to a married woman whose adulthood is determined by marriage. The implication here is that a twelve-year-old girl is considered a person of “full age” if she is married (s. 29 (4) (b) CFRN, 1999). This definition has been variously condemned both by academics and child support groups (Fayokun, 2015; Agege, Nwose, Odjimogho & Igumbor, 2017), for technically lending support to child marriage, which has been prohibited in some Nigerian child’s rights provisions such as the Child’s Right Act (CRA), 2003; and condemned internationally (Association for Reproductive and Family Health, (ARFH) 2018). Like the CRC, the Nigeria’s Administration of Criminal Justice Act (ACJA), 2015 and CRA define a child as a person who is below the age of 18. The CRA further sets the minimum age of marriage at 18 (s. 494 ACJA, 2015; s. 20 CRA, 2003); and punishes child marriage with a term of imprisonment for five years or a fine of N500, 000 or both fine and imprisonment (s. 23 CRA, 2003) on conviction. Ascribing “age of majority” to marriage by the CFRN is particularly worrying because of the penchant for child marriage, especially in the northern part of Nigeria (UNICEF, 2018a; ARFH, 2018).
Having said that, the question is: what is the relevance of definition of a child to a discourse on child protection from violence? The simple answer to that question is that: definition of any concept provides a better understanding of the concept. Understanding the concept would normally engender better analysis of issues around the concept; and stimulate the adoption of appropriate initiatives for purposes of tackling underlying problems relating to the concept. Thus, situating a problem, i.e. violence against children in a proper context can potentially lead to various outcomes such as the adoption of targeted and focused measures. This means uniformity in the definition of a concept, i.e. child, in this context, is crucial because varied definitions have led to flaws and contradictions in the application of legal provisions, and in the formulation and implementation of policies in Nigeria (UNICEF, 2011). Consequently, the African Committee of Experts on the Rights of the Child (ACERWC), advised Nigeria to address inconsistencies in the definition of a child by taking some steps, such as ensuring that all states of the federation adopt the definition of a child proffered in the CRA. This would help Nigeria to be at par with the CRC and African Charter on the Rights and Welfare of the Child (ACRWC) (African Union, 1990). The ACERWC further recommended intense engagement with traditional and religious leaders to stress the need for persons under the age of 18 to be conceptualized as children at all levels (ACERWC, 2009). Engaging with traditional and religious leaders on conceptualizing people below 18 is crucial because of the influence they wield on members of their communities. Because of their influences, they can make a difference by sensitizing people under their tutelage about who a child is and how the child should be treated.
2.2 Child Trafficking
Child trafficking is a global phenomenon, which continues to grow against all odds due to the prevalence of push factors such as humanitarian crisis around the world, poverty, and exclusion amongst others (UNODC, 2019a). Because of its global nature, children are trafficked and “… exploited in every region of the world, both online and offline” (ECPAT, 2019). This means every country is affected by the menace of child trafficking one way or another. For example, a country may be affected as a source, transit or destination country, or a combination of two or all three. For example, Nigeria is a source, transit and destination country for child trafficking. As a source country, children are usually recruited and transported to countries in Africa, Europe, Asia and the Americas. It is also a transit country for children trafficked from Niger, etc., en route Europe and other parts of the world. Nigeria also provides destination place for children trafficked from Benin Republic, Togo, Mali and some other neighbouring African countries (US Department of State (USDOS), 2019).
Although all categories of persons are usually trafficked, research shows that majority of persons trafficked at any given time are women and children (UNODC, 2019b), making it imperative to emphasise anti-trafficking measures that seek to protect women and children. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (TIPP) seeks to achieve this by a) emphasising trafficking of children in its long title thus: “… Especially Women and Children”, b) seeking to prohibit and punish child trafficking by providing a definition which renders consent in trafficking void, particularly in the case of children (art. 3 (2) TIPP); and c) enjoining states to adopt measures-legal, institutional, policy, administrative, etc. to end human trafficking, especially trafficking of children (UN, 2003).
Children are usually trafficked for different purposes, such as pornography, begging, marriage, organ harvesting, etc. However, majority of children are trafficked for sexual exploitation according to reports (Antislavery International, 2019). The UNODC observed that one in three known trafficking victims were children; and that majority of trafficked children were sexually exploited (UNODC, 2019c).
Indeed, the actual number of children that are trafficked each year remains a matter of guesswork, as different organizations have given conflicting estimates of the number of child victims of child trafficking. For example, while the International Labour Organization (ILO) estimates that about 40 million people fall victim to trafficking annually, 20% of which are children (ILO, 2017), the UNODC, estimates that 30% of trafficking victims are children. Contradictions in the data presented by ILO and UNODC points to the major problem of lack of accurate data on child trafficking, making counter effort operations bleak because measures cannot be effective unless they are tailored to a fully conceptualized problem.
2.3. Child Labour
Child labour is an activity, which normally takes place clandestinely; it is one of the most egregious and manifested forms of child’s rights violation. With regards to its meaning, an expansive definition proffered and adopted by resolution II during the 18th International Conference of Statisticians, is most agreeable to the international community (ILO, 2008). 18th International Conference of Labour Statisticians, http://www.ilo.org/global/statisitcs-and-databases/meetings-and-events/international-conference-of-labour-statisticians/WCMS_092024/lang-en/index.htm). The definition is rather descriptive and captures a wide range of actions. It states that the term child labor covers:
The worst forms of child labor, including slavery, prostitution, and pornography, illicit activities, and work likely to harm children’s health, safety or morals as defined in ILO Convention No. 182. Employment below the minimum age of 15, as established under ILO Convention No. 138. Hazardous unpaid household services, including household chores performed for long hours, in an unhealthy environment, in dangerous locations, and involving unsafe equipment or heavy loads.
All over the world, and on daily basis, millions of children are ensnared in one form of child labor or the other. This according to UNICEF, deprives them of “their childhood, their health, and education, and condemning them to a life of poverty and of want” (UNICEF, 2018b). Official data from UNICEF, ILO and the World Bank estimate that about 168 million children aged 7 – 15 are engaged in unacceptable work, suffering worst forms of child labor including “slavery and slavery-like practices such as forced and bonded labor and child soldiering, sexual” (IOM, 2018). They are also used by adults in illicit activities such as trafficking in drugs, armed robbery and pornography (UNICEF, 2019b). A very common form of child labour in which children engage in work as domestics, is prevalent in Nigeria. The danger and hazardous conditions the children are reportedly subjected has continuously made headlines in the print and mass media and also revealed by researches (Abe, 2019). The number of children in domestic work is estimated at 15.5 million (UNICEF, 2018a). However, the number of children in domestic work remains largely unknown due to lack of data.
In terms of efforts to counter child labor, progress is undoubtedly being made across the world, particularly in more advanced countries. However, this does not reflect the situation in Nigeria, as the plight of children in unacceptable labour is rather getting the worst. It is therefore important for Nigeria, and other countries double their effort against child labor due to the short and long term consequences for the children and the economies of states. An example of the consequence for the economy is the terrorism and insurgency currently being experienced in Nigeria.
3. Child Trafficking, Exploitation and Violence as Usurpation of the Rights of the Child
It is noteworthy that legislative, administrative and educational efforts have been undertaken to address child trafficking. In Nigeria for example, the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) and other anti-trafficking units within the law enforcement agencies as well as other measures have been established to combat violence against children, leading to increased awareness, rescued victims of child trafficking, and convictions of child abusers (USDOS, 2019). Despite this however, child trafficking, exploitation, abuse and other forms of violence against children remain widespread; and because of lack of political will to follow through on policy implementation, even children who have been rescued from situation of exploitation are exposed to the same vulnerabilities, especially re-trafficking.
There are varying degrees of violence perpetrated against children, which are being sustained by lack of adequate state machinery to prevent and combat.
3.1. Forms of Violence against Children in Nigeria
One very subtle but dangerous form of violence against children is entrenched in the notion of “child discipline”. The danger is that children are easily subjected to torture in the name of “child discipline” since it is difficult to draw the line between discipline and torture (UNICEF, 2016). Torture of children is prevalent in Nigeria because it is embedded in socio-cultural practices of the people, which truly violate the provisions of the UN Convention against Torture and Other Inhuman or Degrading Treatment (CAT) to which Nigeria is a party (UN, 1984); and Nigeria’s Anti-Torture Act, 2017 (s.1 (2)). Furthermore, against what has been vehemently condemned by the Committee on the Rights of the Child (UN Committee on the Rights of the Child, 2010), and may be considered a criminal conduct in some societies, extreme form of corporal punishment in the home and schools is pervasive in Nigeria, and viewed as a good way of instilling discipline on erring children (Otieri & Otieri, 2018).
It is also very common to find that children in Nigeria are forced or trafficked for purposes that constitute the “worst forms of labor” prohibited under ILO Convention 182. According to UNICEF, several millions of Nigerian children are forced into exploitative labor, such as domestics, begging, farm labor and prostitution every year (UNICEF, 2018b). Similarly, several children are used as slaves, and in some cases maltreated or even killed having been branded witches (Ifeakandu, 2018).
This is particularly an infringement on the rights of children; and an indictment on the country, which has signed, ratified and domesticated numerous anti-child violence instruments to commit to the fight against THB, child labor and other forms of violence. Protecting children against labor, particularly forced labor is important due to the ripple effect it would have on other child protection efforts.
The situation of children in Nigeria raises doubt about the efficacy of legal enactments, as they seem to have minimal impact on children (Oladipo, 2010’ Hodge & Lietz, 2007). For example, traditional practices which stereotype women and children continue unabated even though laws exist that prohibit these practices; and children still face trials for capital offences. Until now, Nigerian children continue to be taken across borders and foreign nationals brought into Nigeria for prostitution and worst forms of child labor (Bello, 2019). Dangers arising from this practice of moving children from place to place are enormous. For example, traffickers and child abusers are likely to abandon or even kill a child or children when faced with the risk of being caught.
3.2. Specific International and Nigerian Legal Provisions Relating to Child’s Rights Protection
Most of the provisions of CRA are imported from the CRC and ILO Convention 182; and contain provisions, which deal with the issue of who a child is, as well as limited conditions under which a child could be separated from his/her parents. Under s. 14 of CRA, a child could be separated from parents where it is in the best interest of the child, but did not define what the best interest of the child is (African Union, 1990). However, children continue to be fraudulently separated from their parents by outright sale or promise of a better life, only for them to end up in exploitative situations, which cannot be said to be in the best interest of the child. According to UNICEF, traffickers target vulnerable parents who are overburdened with large families and who live under the poverty line to recruit children for exploitation; and are able to easily lure children who are out of school and their parents with false promises (UNICEF, 2016).
Some elements of THB such as unlawful removal of a child from the lawful custody of another are addressed in the CRA. For instance, s.28 of the CRA prohibits exploitative and forced labor of children, employment of children in any capacity except where the child is employed by a member of the family on light work of an agricultural, horticultural or domestic nature. The section is the same as s. 59 of the Nigerian Labour Act (s. 59 (1-8)), which stipulates a term of imprisonment for five years with an option of fine of N50,000.00 for contravening the provisions of the Labour Act. Significant aspects of the Labour Act relating to children are those that set the minimum age for employment and apprenticeships at 12 years, except for light agricultural or domestic work performed for the family (ss. 49, 59), prohibit subjecting children below the age of 12 from lifting heavy object or load (ss. 59, 61), establish minimum age of 15 years for industrial work and maritime employment; and disallow children below the age of 16 to work underground, on machines, at night, for more than 4 consecutive hours, or more than 8 hours a day (s. 60 Labour Act).
Furthermore, s. 30 of CRA which prohibits the buying, selling, hiring or otherwise dealing in children for the purpose of hawking or begging for alms or prostitution is wide enough to cover the almajiri system of semi-formal Qur’anic education which has, in some cases, come to rely on forced begging by Qur’an pupils to support their Islamic teachers, otherwise known as mallams (ARFH, 2018). This practice has assumed a dangerous trend in many parts of the cities of Northern Nigeria (UNICEF, 2018a), where child vulnerabilities are further aggravated by insurgency. These children are migrant scholars from within and outside Nigeria and can be seen in hundreds around the cities begging and committing nefarious acts of stealing, violence and drug peddling (UNICEF, 2016).
The practice of using children to assist adults with disabilities to engage in begging on the streets of major cities in Nigeria is also very common. The Worst Forms of Child Labour Recommendation 190 gives guidance to member States on the enactment of laws, which prohibit hazardous work. Some of the activities listed in s. 30 of the CRA are therefore hazardous. The CRA, 2003 also prohibit “unlawful” sexual intercourse with a child, other forms of sexual abuse and exploitation, and punish the offence with imprisonment of fourteen years (ss. 31 and 32, CRA, 2003), as well as recruitment of a child into the armed forces (s. 34, CRA, 2003). Although, there is at present no incidences of child soldiering in Nigeria, it is a fact that in many war-torn countries there is a growing trend of young children being forced into the military especially for the rebel army who fight guerrilla wars (Gray & Matchin, 2008; International Labour Organization (ILO), 2017). However, children are being recruited into the civilian joint task force (CJTF) to combat insurgency in northeast Nigeria (US Department of State, 2019).
Despite these provisions however, it is needless to say (as this has already been reiterated), that the practical situation is different as under aged children are found everywhere in the country, engaging in hazardous work, working long hours in farms; and carrying heavy loads which may be harmful to their physical development, especially in rural areas. More importantly, child rights violations are rife in the rural areas because enforcement of legal provisions is non-existent. Thus, there is need to sensitize rural people on the rights of children, what constitutes child abuse and exploitation under the law and why it should be stopped.
3.3. Child’s Rights Violations and Legal Limitations
Apart from rural practices, the CRA is characterized by legal limitations that encourage the perpetuation of child exploitation in Nigeria. For example, s.28 (1) (a) (b) (c) CRA, which prohibits children from doing dangerous or immoral work, excludes domestic service from the list. This provision fails to take into cognisance the fact that worst forms of labor, violations, immoral and dangerous work can exist in the child’ s home, or that a family member can subject a child to sexual gratification, and or forced labor within the family environment. In the light of the above, the minimum age for a child employment needs to be changed to fourteen or fifteen years of age (Nwabueze, 2004; Eso, 2003; Peters, 2005). Similarly, it need be provided that all children below the age of eighteen are prohibited from all work that is likely to harm their health, safety and morals to conform to the definition in international instruments such as the ILO Convention 182 (ILO, 1999).
Chapters 4 and 2 of the Nigerian Constitution 1999, as amended which contain extensive provisions on fundamental rights and fundamental objectives and directive principles on state policy respectively is also the thrust of the CRA even though these provisions are not actually child specific (Brems & Adekoya, 2010). More importantly, all these provisions fall short of international standards stipulated by the CRC and ACRWC. Therefore, while the contention in some quarters is to the effect that implementation of the CRA is hampered by various challenges; the Trafficking in Persons (Prohibition Enforcement) Act (TIPPLEAA), 2015, can be used to protect children from child trafficking and exploitation as some of the most notorious forms of abuse of children. This is so because, the TIPPLEAA addresses all forms of violence against children, including child labor, sale, slavery and slavery-like conditions etc.
4. Drivers of Child Vulnerabilities in Nigeria
The apparent reality of the existence of poverty in Nigeria is not an exaggeration. In 2019, UNICEF alluded to the prevalence of child vulnerabilities in Nigeria, noting that: “abuse in all its forms is a daily reality for many Nigerian children and only a fraction ever receive help” (UNICEF, 2019b). There are several factors that make children vulnerable to abuse, violence, exploitation, as well as child trafficking and forced labor among others. One prominent driver of child vulnerabilities in Nigeria is poverty. In that regard, the international community and world expert bodies have stated that Nigeria consists of most of the poor people in the world as shown by data on world development indicators (World Bank, 2019; UNICEF, 2019b; Omobowale & Olutayo, 2009; Ikejiaku, 2009).
Poverty level in Nigeria routinely contradicts the state of affair of the country as a country endowed with huge natural resources (Sofo, 2003); a situation which has been blamed on poor management of resources due to bad governance and the over flogged problem of endemic corruption (Egwakhe, 2007). Recognizing it as a problem therefore, successive governments in the country have embarked on one alleviating programme or the other but as records show, all have abysmally failed. However, that an attempt towards the eradication of poverty had been made at all is a tacit recognition of its existence and public acceptance of its devastating effects, especially on children; and call for all impediments that account for failure of the programmes to be removed. This is important since the continued existence of poverty in the country has impinged efforts towards enhancing the rights of children; and also facilitates corruption in the country (Egwakhe, 2007). Accordingly every effort must be made to ensure its reduction if the fight against abuses, violence and exploitation is to succeed. Efforts in this direction must ensure that existing economic, political and social structures are reformed to provide equal and just opportunities for children to work. This is to address the problem of feminisation of poverty, which in turn leads to the feminisation of migration, as women leave their homes in search of viable economic options” (Bradshaw, Chant, & Linneker 2019; Lucio, 2017). Addressing the issue of feminization of poverty and migration would benefit children more as they are usually in danger and vulnerable to all forms of violence in the absence of their mothers.
This is important because of the linkages between child exploitative labor and poverty. Undoubtedly, there is increased number of children subjected to child labor in Nigeria, despite the fact that Nigeria has signed and ratified the ILO Conventions on the minimum age of admission to employment and the prohibition and elimination of all forms of child labor in October 2002. This clearly shows failure on the part of government to carry out its obligation under international law, to provide protection for children. In that regard, the ILO, has initiated a national work plan, in collaboration with the Nigerian government to eliminate child labor in some sectors (ILO, 2019).
Apart from poverty, socio-cultural and religious practices also engender violence against children. For example, the Islamic alamajirici system of education is widely condemned for aggravating violence against children. This is because children attached to Imams (religious leaders) for religious teaching and instruction are normally sent out to beg on the streets to support themselves and their tutors (UNESCO, 2006). Also, the traditional system of child fostering which allow children to live with family members other than their parents, has led to a significant number of children in Nigeria being subjected to child labor within the context of child labor discussed above. This undoubtedly shows that Nigeria’s rural economy is a major driver of child vulnerabilities, due to poor socio-economic conditions. According to the ILO, “drivers of vulnerability in rural areas, include …” (ILO, 2017) among other things, lack of access to livelihood opportunities, “poor access to markets and public services, which reinforce socio-economic exclusion” (ILO, 2017). Additional to these conditions are lack of access to safe, clean and affordable energy, which in turn affects the rights of children to quality education, proper health care services, clean water, and other facilities that could aid their development (Ifeakandu, 2018).
5. Child Rights Protection and the Human Rights Law
Despite high prevalence of violence against children in Nigeria, they fail to attract the desired attention from government and those saddled with the responsibility to ensure their protection, particularly people who stand in fiduciary relationship to the child. With the erroneous belief that strangers perpetuate most violence against children, acts of violence have become sustained. Alemika lent credence to this notion by making two basic assertions; a) that inter-familial violence and parent-on-child violence occur more frequently in all strata of society than it is generally admitted (Alemika, 1996); and b) that contrary to the popular belief that most violence suffered by children originate from strangers, children actually suffer more violence at the hands of their parents, guardians, teachers and close relations rather than from strangers (Alemika, 1996). If this assertion is correct, then urgent measures must be engaged to address this anomaly due principally to the need for children to grow up in environment of love and care (s. 14, CRA, 2003). This is so because children are likely to achieve their potentials better as part of a loving family even if such a family is a proper foster family. As yet, achieving a safe environment of care and love for many children in Nigeria is a tall dream as children continue to suffer deprivation arising from poverty (Ifeakandu, 2011; Kothari, 2006; Obadan, 2009; Elumilade & Asolu, 2006), conflicts (Schwab, 2005), harmful practices (Otive-Igbuzor, 2008) and diverse forms of abuses such as economic and exploitative labour (Ifeakandu, 2018; UNICEF, 2019a; ILO, 2019), sexual exploitation ( UNODC, 2019b; ILO & UNICEF, 2018), and gender discrimination in education and other areas, amongst others. In addition to condemning these factors, the international community adopted some international legal instruments to fight discrimination against all persons, including children on the basis of sex, race, age, religion etc. For example, anchored by the United Nations, the international community adopted the International Covenant on Economic, Social and Cultural Rights (ICESCR) (UN, 1966a) and the International Covenant on Civil and Political Rights (ICCPR) (UN, 1996b) which enjoin states to implement measures that can potentially reduce socio-cultural practices which make people, especially children vulnerable to abuses and forms of exploitation. Art. 2 of the ICCPR for example, calls on state parties to the Covenant to ensure that everyone in their territory enjoys the same rights without discrimination based on race, sex, language, religion, birth or other status. Also, the CRC and ACRWC enjoin states to discourage custom, tradition, culture or religion that is repressive and inconsistent with the rights of the child (art. 1, CRC, art. 1 ACRWC). This has resulted in the implementation of measures at international, regional and national levels to protect children. The measures include awareness creation through jingles, short plays and videos, films, bill boards in major cities and at strategic points; and human rights and criminal justice efforts that aim to effectively combat child vulnerabilities. In the context of Nigeria, it should be reiterated that child protection measures are still ineffective since child exploitation, child trafficking and other forms of violence remain on the increase (IOM, 2019).
5.1. Child Rights Protection and the Nigerian Criminal Justice System
Issues relating to child justice administration-age of criminality, child assessment orders, trial, the minimum punishment and procedure for sentencing of children in Nigeria have been settled in the CRA (ss. 41-50, 149, CRA, 2003). The Administration of Criminal Justice Act (ACJA), 2015 stipulates that criminal proceedings involving children that come into conflict with the law are to be conducted under the CRA (s. 452 ACJA, 2015). With capital punishment removed in the case of children (s. 221(1) CRA, 2003), child protection seems to have been enhanced under Nigerian criminal justice provisions; and the international community had, at some point, commended Nigeria’s effort in that regard (UN, 2010). For example, the UN Committee on the Rights of the Child (UNCRC), in its concluding remarks, expressed pleasure over the elimination of death sentence for children under the CRA. However, it is worrying that Nigeria is still unable to enforce provisions of the CRA in states, particularly in the north, which failed to adopt the Act. The effect is that children in states of the federation that practice the Sharia penal system remain vulnerable to provisions in the Sharia Penal Codes (including Hadd punishments) dealing with mandatory death penalty for capital offences.
Child vulnerability in these states is further enhanced by the fact that a child is defined by puberty rather than as a person under the age of 18. This means capital punishment could be imposed on children in such states, particularly those under the Sharia jurisdiction. Even in states that have adopted and re-enacted the provisions of the CRA, children are still vulnerable to violence arising from inter-communal and political conflicts as well as extrajudicial killings by law enforcement agencies even as children are still held in adult jails and suffer ill-treatment while in police custody (Ajah & Ugwuoke, 2018).
It is important to state here that child justice reforms are imperative, especially in the area of treatment of children that come into conflict with the law; and others that need the protection of the law from violence. Legal provisions that punish adults that use children in criminal activities must be effectively enforced. This is to ensure that child justice practices in Nigeria conform to international best practices; and engender child security and development in a way that allows emotional stability and psychological wellbeing of the child. Therefore stakeholders must adopt extensive measures capable of guaranteeing children their right to life and survival; strengthen measures that promote understanding, tolerance and co-habitation among people; and engage comprehensive public campaigns on child rights protection. Adults must therefore think about the impact of their actions on children, especially as it relates to inter-communal and political conflicts (UN Committee on the Rights of the Child, 2010).
5.2. International, Regional and National Efforts towards Child Rights Protection
The fact that the phenomenon of child rights abuses is of international nature is indisputable. Recognizing the dire situation of children in terms of violence and exploitation therefore, the international community adopted the CRC which was replicated at the regional level, including Africa by virtue of the ACRWC,both of which have as their central theme, the protection of children (Brems & Adekoya, 2010; UNICEF, 2018b). These instruments are significant because they imbibe broad-spectrum perspective on child rights, and possess characteristics that make them world-class instruments. For example, both instruments were adopted as responses to the urgent need to elaborate legally binding documents with special focus on children’s needs; and developed essentially into legal tools for child protection at global and regional levels. Furthermore, both instruments dealt comprehensively with civil, political, social and cultural rights of children.
The ACWRC is the most comprehensive regional instrument in Africa, with focus, inter alia on child participation, inclusion and non-discrimination. In addition to enjoining states to effectively address the problem of internal conflicts and displacement in the various states, the treaty contains provisions that outlaw traditional practices that are harmful to children such as female genital mutilation (FMG) and child marriage. Another significant aspect of the treaty is the manner in which it deals with the sore issue of the role of the family in the adoption and fostering of children as well as duties and responsibilities of the child towards the family and community.
Importantly, several provisions of the CRC and ACWRC, including those relating to the principle of “the best interest of the child”, are replicated in the CRA (art. 1 CRC; art. 4 (1) ACRWC; s. 1 CRA). As beautiful as the provisions of international treaties seeking to protect children are, the extent to which they have achieved their purpose remains unclear. This calls for proper or critical evaluation, which should involve: a) the problems often encountered with regard to children in the course of administration of justice and the mechanisms that could be adopted in solving these problems such as the invocation of CRA provisions that are kind to children; b) the notion of “best interest of the child” and its meaning and application; c) children participation in making decisions concerning them, as regards proceedings relating to crime, separation and adoption; d) availability of custodial measures in response to offences committed by children; e) measures to familiarize the legal professionals with the legal principles contained in the CRC, ACRWC,CRA and other relevant legal instruments on child rights; and f) grounds for separation of children from parents and guardians and the extent to which children are given opportunity to express their views on the desirability or otherwise of the separation and or adoption.
6. Challenges of Implementing the Child Rights Protection Measures in Nigeria
The discourse about child protection under international and Nigerian human laws clearly shows that several measures, including legal and institutional measures, have been adopted at international, regional and national levels to protect children. In Nigeria, the most profound measure is the enactment of the CRA and the TIPPLEAA, which have been enacted to complement other measures. However, they have not had significant impact on the plight of children whose rights are abused and violated on daily basis. In some parts of Nigeria for example, children are still being branded witches, leading to their stigmatization. As a result, they are beaten, maimed and killed in extreme cases; and child vulnerability has fervidly pitched at the highest level due to insurgency, banditry and other criminality that give rise to displacements and the establishment of internally displaced persons (IDPs) camps (Nigerian Institute of Advanced Legal Studies (NIALS), 2017). At the same time, persons who present themselves as ‘redeemers’ often turn out to be traffickers in search of those to prey on; and contrary to provisions such as s. 21 of CRA and art. 21 (2) of ACRWC that prohibits child marriage, the practice continues, especially in the north where enormous controversies surrounding child marriages by public figures does not seem to dissuade errant men (Bolaji, 2010; NAPTIP, 2013). Failure of legal measures to offer meaningful protection is due to a number of challenges highlighted below:
1) Principle of locus standi
The principle of locus standi is one of the many reasons that impede effective enforcement of the rights of children. Under this principle, before any action could be instituted, the standing of such a person must be considered in order to do merit to the case. The Nigerian 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules 1979 reinforces the principle of locus standi by providing that before any of the fundamental rights guaranteed under Chapter IV of the Constitution can be invoked, the applicant must be the actual person whose right has been breached. The implication is that application could not be filed in the name of another person but that of the complainant; which invariably translates to inability of the child to enforce the rights under Chapter IV due to the impediments of age limitation and other social limitations, including finance.
2) Cultural values and religious practices
Some cultural and religious practices, which preclude children from suing an adult or parents for a wrong done to them, also pose serious challenge. The attitude of the family and by extension, the society towards recognizing that children have rights contributes largely to the non-implementation of the CRA and other measures. Basically, religion, viewed by many as the “livewire of most human beings” exerts tremendous influence on the beliefs, practices and attitudes of people towards the reception of legal provisions (Loimeier, 2007; Imo, 2008; Bienen, 1986). There is no doubt that apart from conflicts with cultural/traditional practices and beliefs, religion seems to be the bane of implementation of the CRA especially in the northern part of the country. Areas of conflict include the prohibition of child and forced marriages, child begging and destitution, and the right to education, girl-child education, adoption of a child amongst others.
In terms of adoption, although this is lawful and permissible under Part 12 of the CRA, s. 14 (1) (a) succinctly states the effect of adoption while s. 147 (1) and (2) of the Act prohibits and voids marriage between an adopted child and the natural child of the adoptive parents; just as marriage between the adoptive parents and the adopted child is prohibited. The section also makes such marriage an offence, conviction of which attracts a term of imprisonment of up to fourteen years. The fact that this contradicts religious practices in the North and regarded as direct infraction of the provisions of Holy Qur’an and sunnah of the Holy Prophet (Ibrahim, 1991; Bienen, 1986) on child adoption has encumbered implementation of the CRA. This is because adoption is expressly outlawed in Islam due to its consequences (Quaran 33: 4-5). Writers identified some of the reasons for outlawing adoption in Islam as the “great importance that Islam attaches to the protection of legitimacy and paternity and the consequences of such adoption in pre-Islamic era” (Sodiq, 2009); and thus accentuate adoption as illegal and unjust because of its tendency to ascribe a child’s paternity to a non-related person. However, there seems to be a contradiction in this regard since adoption within legal confines could still be safer than the almajirici (Yakubu, 2004) system, which is allowed in Islam.
3) Omission of the jurisdiction of a State Sharia Court of Appeal in matters relating to children
Related to challenge posed by religion is the obvious omission of the jurisdiction of a State Sharia Court of Appeal in matters relating to children. Under Part 13 of CRA unlimited jurisdiction to hear and determine matters pertaining to children is vested in the family Court (s. 149 CRA) that can only be constituted at the High Court and Magistrate levels. Additionally, the court has special jurisdiction in all matters relating to children as specified under the Act, even though, the Act saves the jurisdiction of normal criminal courts to try cases or offences by adult offenders as specified in part III (Protection of the rights of the Child) of CRA or any other law. Again, issues relating to jurisdictional conflicts must be well addressed and articulated since some existing courts also have jurisdiction over some matters involving children such as the Sharia Court of Appeal of a State which has express jurisdiction (s. 277 (1) (2) CFRN, 1999, as amended) over civil matters involving Muslims, including Muslim children (Ladan, 2003).
4) Lack of political will to enforce laws and other child protection measures
It is pertinent to note that the survival or otherwise of any law or policy depends largely on the political will to enforce or implement. The lack of political will by government and other stakeholders to fully implement the child’s rights laws and policies is the bane of their success. Many laws and child protection measures have being implemented partially. This is not good enough as lack or partial implementation is injurious to the “best interest and welfare” of the child who is already susceptible to abuse and marginalization. This situation is made worse by lack of coordination and harmonious relationship among states, mainstream ministries of women affairs and Justice, which has been said to account for why the state of the Nigerian child remains the same, sixteen years after the passage of CRA.
5) Lack of inter agency and inter government cooperation
Between states governments and civil society groups, there is reportedly little or no cooperation and collaboration in the promotion and protection of the rights of children in the various states as they all seem to be lost on the importance of the complementary roles they can play in the promotion of children rights and welfare.
6) Limited education and jurisprudence on the existence of child’s rights laws and other measures
There is also the challenge of limited education and jurisprudence on the existence of child’s rights laws and other measures. With provisions of CRA, for example, becoming so distant at the corridors of legal and judicial corridors, there is likelihood that CRA may never achieve its set objective since people who should enforce it seem oblivious of its provisions. Accordingly, continuous legal and judicial education in the area of comparative human rights jurisprudence and the administration of Justice as it affects legal and other measures is imperative. This is to increase awareness of child’s rights laws, particularly the CRA, for a better and proper appreciation and understanding of its provisions as well as efforts towards addressing the increasing societal injustices against children in Nigeria.
Recommendations
In addition to the some recommendations made in the course of this discourse, some overarching recommendations are underscored below:
a) To achieve effective protection for children, government should adopt integrated efforts that; a) engage media campaigns and advocacy for purposes of educating the public on victim identification indicators and reporting mechanisms; b) tackle the root causes of trafficking and improve the situation of children at risk; c) strengthen training programmes for law enforcement officials and parents; and d) enhanced programmes on investigation, prosecution and conviction of people involved in abuse, trafficking, exploitation of children, and other vices against children.
b) Collaboration by stakeholders including state legislatures, Grand Khadis, civil society groups, and ministries of Women Affairs, Child and Justice at all levels regarding child’s rights protection measures is also recommended. In that regard, cooperation should hinge on drafting and formulating policies that promote and protect the overall wellbeing of the child.
c) Networking for purposes of adopting a strategic, integrated and holistic action plan, which centers on the principle of “best interest of the child” is important. To achieve this, government and stakeholders must demonstrate a strong political will to honestly protect children through the instrument of rights enforcement.
d) Important decisions regarding the protection of the rights of children must strategically engage laws that take cognizance of child rights.
e) There is also the need to adopt machinery for enforcement that meets minimum international standards in the protection of child rights.
7. Conclusions
Violence against children is a phenomenon that should shame us all. This is because rather than ensuring extreme protection for children, adults have, and continue to perpetuate violence against children. The prevalence of child labor, increased trafficking and pedophilia and other forms of violence against children are undeniable, especially in Nigeria, which have damaged millions of children physically and psychologically. Violence against children is reinforced by numerous factors, such as poverty, bad governance, lack of educational and employment opportunities, conflicts, etc. Recognizing the consequences of violence against children, on both the victims and the larger society, the international community adopted several measures, including legal measures.
Internationally legal measures contain important provisions which have been incorporated into Nigerian laws, both to enhance existing legal provisions and to bring about a new legal order that addresses the problem of violence against children in the country (UNODC, 2006; UNICEF, 2018b). The need to enhance protection for vulnerable children in the country arose from the prevalence of problem of child exploitation and inadequacies of existing laws on child rights protection. Some specific laws, which were enacted, include the CRA and TIPPLEAA. These laws contain extensive provisions on child protection as well as juvenile justice as already noted. However, violence against children continues relentlessly. Therefore, it is important for government and all stakeholders to ensure that measures on child rights protection are effectively implemented.
International Legal Instruments – Sources of Authority
African Charter on Human and Peoples’ Rights
African Charter on the Rights and Welfare of the Child
International Covenant on Civil and Political Rights. General Assembly resolution 2200A (XXI) of December 16, 1966. It came into force on March 23, 1976, in accordance with Article 49. at, https://www.ohchr.org/en/professionalinterest/pages/ccpr.asp
International Covenant Economic … on General Assembly resolution 2200A (XXI) of December 16, 1966. It entered into force on January 3, 1976, in accordance with article 27. https://www.ohchr.org/en/professionalinterest/pages/cescr.asp
The ILO Convention (No. 182) Concerning the Prohibition and Immediate Action for the Elimination of Worst Forms of Child Labour Convention, 1999. https://www.refworld.org/docid/3ddb6e0c4.html
UN Convention on the Rights of the Child
United Nations Convention against Torture and Other Inhuman or Degrading Treatment, General Assembly Resolution A/RES/39/46 on December 10, 1984. http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Trafficking in Women and Children, 2003.
Nigeria Municipal Laws
Administration of Criminal Justice Act, 2015
Anti-Torture Act, 2017
