Child's Rights Act: The cure for trafficking
THE Child's Rights Act, which was passed into law in 2003 and adopted by 23 states including the Federal Capital Territory (FCT), is yet to create the impact for which it was intended.
Child trafficking is still going on unabated with its attendant negative influence on children. Child abuse and child labour, street -begging, early marriage of the girl-child and widespread rape of children, are still the order of the day, despite the Act.
Why have some states refused to adopt the Act and why is it that in some states where the Act is adopted, it is not effectively enforced. Institutions are not built to consolidate the enforceability of the law.
In this interview granted by the National Co-ordinator of Legal Defence and Assistance Project (LEDAP), a non-governmental organisation, an expert in Family Law, Mr. Chino Obiagwu, gave reasons why the Act was yet to create the desired impact to protect children in Nigeria and what should be done to strengthen it to achieve the objective.
He spoke to THE GUARDIAN'S IBE UWALEKE and BLESSING EGHAGHA. Excerpts.
WHY has the Child's Right Act not been adopted by all the states of the federation?
The Child's Rights Act 2003 was adopted with the intention of domesticating the convention on the rights of the child. The legislation made a very wide provision for certain rights of children. They border on children justice and family. It falls under Concurrent List. The National Assembly cannot make laws that are binding on states on those issues. Therefore, the Child's Rights Act enacted by the National Assembly is only application in the Federal Capital Territory and with respect to capital offences.
It is the responsibility of the State Houses of Assembly in compliance with Section 12 of the constitution to adopt and make their own state laws. It is unfortunate that the process has been very slow and in some cases, very controversial.
Last week, Cross River State became the 23rd state to adopt the Child's Rights Law. So, we are making progress.
Other states in the core North, particularly Kano State, are resisting the law. Jigawa has adopted it despite the fact it has a Sharia civil law in place. There is a pass mark in the area of adoption of the Child's Rights Act. So now, what is left is: to what extent are those Child's Rights laws being passed by the states implemented.
I can tell you with all sense of responsibility, that very few states, particularly Lagos State and the FCT, are making efforts to set up what is truly a Family Court and children rehabilitation centres as required by the law.
You said there are some critical areas in the Act, can you expatiate more on that?
The first is the issue of age of the child. The Act provides that a child is somebody under the age of 18.
In some states, that is a problem because it affects the minimum age of marriage. If you say no child shall be given out in marriage, it means that a child below the age of 18 should not be given out in marriage. Some states are agitating that it should be reduced to 16.
Then, who is an adolescent? At what age can one say someone is an adolescent?
Well, 18 naturally. But remember that maturity as defined changes from context to context. The age of maturity in Constitutional Law is 18. That is the age you can aspire for political office. But in respect to Criminal Law, it is different.
In Criminal Law, it is 17. That is when you become criminally liable. In Family Law, it is different. Age of consent is different and the minimum age of marriage changes.
What is the age of maturity in Family Law?
It is still very controversial in Nigeria because the family law from one state to another changes. In some states there is no fixed minimum age of marriage.
Does this have to do with the culture of a particular tribe or does it depend on ethnic consideration?
It has to do with the culture of some tribes and the conflict of laws in Nigeria. We have three sources of laws in Nigeria that are in practice today. The customary laws, the sharia law and the common law. It depends on which law you are contracting a marriage. If you are contracting a marriage under the common law, the minimum age of marriage, which is 16, under common law, has applied. If you are contracting a marriage under customary law, the rules of that custom of the people apply, so the same with sharia. That is why in some places, children of 12 or 13 are married. But if you do that under the Marriage Act, it is invalid because it doesn't meet the requirement of common law. That's what the Child's Rights Act wants to put to rest. The Act wants to set the minimum age of marriage so that it would be universal, because a 12-year-old in Lagos State has the same biological features as a 12-year-old in Kano.
Now, the controversy concerning this minimum age of marriage, for obvious reasons, is defeating that purpose.
What is the seal in that Act?
Eighteen years. But under the United Nations Convention on the rights of the child, a child is anyone below the age of 18.
Now, what some states have done is to use that age and some are saying we are not going to touch that document at all, because it is going to affect some of those people that are betrothed.
So, it is not just political but this also creates a huge stumbling block in protecting the rights of children in this country. If you give out a child of 12 in marriage under the purist tradition, it is not for you to consummate the marriage, but to bring up that child to an age when she is biologically prepared for child-bearing. But those days when you do that, the man simply puts the child in the family way and she is not biologically prepared for child-bearing and that results in the rupture of her uterus that gives rise to Vesico-Vagina Fistula (VVF) and other complications. So there is the need in standardising the age of marriage.
Why is it that some states in the North particularly Kano are resisting the adoption of this Act?
I have listened to so many state officials whose states that are yet to adopt this argue that the reason is that there was no consultation between the National Assembly and these states' authorities, before the decision was made.
Secondly, the Federal Government, the National Assembly cannot make laws for the states. The argument is that making a uniform rule to apply nationally is contrary to the principles of federalism. So, they are using federalism as a defence. That is the main reason. But nobody talks about other political undertones. For instance, the pressure not to adopt some of those provisions. The minimum age of marriage is one; the second is the issue of being the child. Child's Rights Act has given children some level of rights and they are feeling that it would make parents lose control of their wards. So, they say the law is too liberal. But children have some rights.
Can you mention a few of these rights?
The children have a right to a choice of career; they have a right to determine their own future, affecting their own psychological upbringing and their lives. The rights define what is the paramount interest of the child. What is in their own best interest? Every child knows what he wants. It is simply the duty of the parents to guide the child to make the right decision and provide the moral guidance. That is not to say they should not moderate their child's decision.
Recently, a 14-year- old boy was sentenced to death for murder. He is to be kept in prison until he reaches the age when he would be executed. Is it right?
It is not right. The law says unless a child reaches a certain age, that is 17, he cannot be criminally liable. He cannot be criminally liable like an adult. He can only be charged under the Juvenile Criminal Justice System, which the Child's Rights Law regulates or the children and young persons' law. If a child was under the age of 17 as at the time of committing the offence, then he cannot be sentenced to death. But if he had attained 17 at the time of trial, the question is: what was the age at the time of committing the offence. If a child is 14, and commits an offence, you cannot sentence him to death because the law says you cannot. He can only be tried under a juvenile system and getting him to confinement. Under our law, children, pregnant women, people who are insane, cannot be sentenced to death. They can only be kept at the pleasure of the government. Sometimes, you have this conflict in situation where children participate in violent crimes like where children under 17 are gun- carrying criminals.
In this situation, you will find out the reason they go into crime. The essence of juvenile justice is to reform and rehabilitate a child. You just can't sentence a child to death like that court did in Imo State. You have to reform him and bring him back to the society.
But recently, an 11- year- old boy was burnt alive in Surulere area of Lagos State. With that kind of reaction from that mob, don't you think this is another provision of the law that is observed in the breach rather than in compliance?
In every society, there is jungle justice, there is killing of children. But we should let the society know that children are a special breed. Because of their vulnerability, they should be protected, no matter how wrong they've been. Some of them may have been misled into crime or into misconduct. They must be pardoned. So, Nigeria is of out of place in directing jungle justice on children.
As a matter of fact, when there is increase in crime, society's response to crime fighting is always drastic. When children are involved in robbery, the society loses sympathy for them.
It is the case in Nigeria. The laws have been made over centuries. Children offenders are always being treated with kid-gloves because the intention is that they have lost a part in their development. It is better for a society to bring back a child and reform him than to punish that child and let him back into the society. He becomes hardened, vengeful against the society.
Don't you think the provisions of the child's rights have infringed on the customs and traditions of some of those resisting its adoption?
Culture is a way of life of a people and therefore oblige changes. The culture of a society in the 19th Century cannot be the culture in the 20th Century. It's a way of life. It is dynamic when societal value was agrarian people had to go to farm, now the economic dynamics have changed. The culture in respect of family holding has changed. It is no longer fashionable to be polygamous. The Act recognises the core value of African society. The African society respects and protects the child, women. The Armajiri system in the north for example, is a system where children are put in the hands of mentors, Islamic teachers, who are supposed to teach them and bring them up in core Islamic education, which is a very rich education. These teachers, who are supposed to be their mentors, now send the children to the street to solicit for alms. It has become a permanent means of income. Look at the issue of Female Genital Mutilation (FGM), it was set out to achieve certain purpose.
So, as we are in the 20th Century, there are certain practices that are no longer in vogue. When you talk about culture, you have to be careful. There has been a lot of abuse of cultural principles that can no longer stand the test of time. There was a time twins were being killed. We have advanced so much in science that we can no longer justify this. Our culture must be questioned with our current knowledge of science and technology. The Child's Rights Act does not undermine the culture of our people. A child in Nigeria is just like a child in China, New York or anywhere.
http://www.ngrguardiannews.com/law/article01/indexn2_html?pdate=090609&ptitle=Child%27s%20Rights%20Act:%20The%20cure%20for%20trafficking
