INTRODUCTION
Although the protection of children's rights is, to some extent, a global challenge, a less universal occurrence is the existence of states that do not have nationally applicable child rights legislation. The legal protection of children's rights is a challenge that has existed for many years in Nigeria.Footnote 1 The problem particularly relates to the domestication (and re-enactment) of children's rights treaties; treaties with another thematic focus are generally not affected by the relevant challenges. In this regard, while the federal legislature possesses wide powers to domesticate treaties with diverse subject matters (including for example environmental, nuclear and trade treaties), state assemblies must be consulted whenever the subject matter of a treaty concerns children's rights or childhood issues in general. However, given that the Nigerian state is fragmented in terms of culture, religion, ethnicity, language, etc, domestication of children's rights treaties has been a problematic issue and consensus has been difficult to achieve. More specifically, as the Nigerian population is roughly split between a majority Muslim north and a largely Christian south, perceptions about children vary considerably across the religious divides. Thus, efforts to adopt uniform legislation that takes the differing perspectives into account has been a huge challenge in the country.
Although there is a fairly comprehensive children's rights law in Nigeria, the Child Rights Act 2003, (CRA), this statute has failed to gain nationwide acceptance: a number of states, especially those in the mainly Muslim north, continue to object to the legislation by failing to re-enact it. Also, some states that have re-enacted the legislation have lowered certain standards,Footnote 2 such that the statute lacks the strength to improve the conditions of children effectively. This article considers some of the main obstacles to effective domestication (and subsequent re-enactment) of children's rights treaties in Nigeria. In this regard, it examines the problems created by the federal constitutional architecture. Also, it considers legal pluralism as a major inhibiting factor; this aspect considers how the fraught relations between different legal norms (common law, Islamic law and customary law) impact on the domestication and subsequent re-enactment of relevant treaties. Following this, the article attempts to examine alternative legal means through which child protection may be achieved, given the gaps created by the relevant challenges. It examines two pieces of national legislation that apply in every state across the country (the Labour Act and the Trafficking Act), to understand whether they can serve as potential gap-fillers in place of the CRA, especially in states that have failed to re-enact that statute. It also suggests how the domestication challenges can be resolved.
THE CHALLENGE OF DOMESTICATING CHILDREN'S RIGHTS TREATIES IN NIGERIA
The legal approach to treaty domestication in Nigeria
Like many common law countries, Nigeria may be classified as a dualist state in relation to the application of international treaties. The basis for this classification is derived from section 12 of Nigeria's 1999 Constitution (the Constitution), which provides:
“(1) No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.
(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.
(3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House [sic] of Assembly in the Federation.”
The content of this provision, especially sub-section 12(1), was clarified by the Nigerian Supreme Court in Abacha v Fawehinmi,Footnote 3 where the court noted that, “an international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the National Assembly”.Footnote 4 The Supreme Court further noted that, “where, however, [a] treaty is enacted into law by the National Assembly, … it becomes binding and our Courts must give effect to it like all other laws falling within the Judicial power of the Courts”.Footnote 5 This explicitly demonstrates the status accorded to treaties in Nigeria, such that signature alone may not confer any legal force to an international instrument. For treaties to become legally binding within the country, the National Assembly (the federal Parliament) must take a further step to domesticate such instruments. Once treaties are domesticated, however, they automatically enjoy the same legal force as other acts enacted by Parliament and no hierarchical distinction may be made between them and other such acts.
It should however be noted that the process of domesticating children's rights treaties is a rather complex procedure in Nigeria. The content of section 12(2) and (3) above introduces additional requirements that, as demonstrated below, hinder the effective domestication of child-related treaties in the country. Thus, while the general rule on treaty domestication is indicated in section 12 of the Constitution, subsections (2) and (3) present a range of exceptions that make it difficult legally to translate treaties with children's rights content at the domestic level. This problem is elaborated upon below.
LEGAL PLURALISM AND THE DOMESTICATION OF CHILDREN'S RIGHTS TREATIES IN NIGERIA
It has been observed that “wherever there were movements of people, wherever there were empires, wherever religions spanned different language and cultural groups, wherever there was trade between different groups, or different groups lived side by side, it was inevitable that different bodies of law would operate or overlap within the same social field”.Footnote 6 Given that many of these realities have been experienced at one time or another in Nigeria's history, it is inevitable that legal pluralism would manifest itself in the country.Footnote 7 Apart from being the most populous African country, Nigeria ranks among the most ethnically diverse states in the world, with well over 250 ethnicities.Footnote 8 It is worth noting that the proliferation of legal pluralism in Nigeria and much of sub-Saharan Africa today was mainly inspired by western colonization, since, before the colonial period, each group had been regulated by distinct (largely unwritten) customary codes. British colonization however heralded the conflation of autonomous norms and sometimes competing traditions within a single country. Thus, while customary norms (in the newly formed country) were never homogeneous, the transplantation of the British legal system to Nigeria furthered this pluralistic trend. In this regard, Abdulmumini Oba, correctly notes that, “[l]aw in Nigeria is a plural complex with the English style common law, Islamic law and the indigenous African law”, otherwise known as customary laws, operating in a competing manner.Footnote 9
The basis for introducing Islamic law into Nigeria's legal jurisprudence is to accommodate one of the country's predominant religions. Nigeria's population is generally split between a majority Muslim north and a largely Christian south, with a small fraction of the population identifying with indigenous African religions.Footnote 10 It should however be noted that the country cannot be neatly divided into a Muslim north/Christian south binary, as there are pockets of Christian adherents in the north, just as there is a sizable number of Muslims in the south. Apart from this, worshipers of traditional African religions cannot be tied to any particular region in the country and may be found everywhere across the country.Footnote 11 That said, the Constitution creates a number of specialized courts to administer Islamic law issues, as well as customary law matters, alongside the civil courts across the country.Footnote 12 Although, there are some Muslim populations in southern Nigeria, there are generally no specialized courts to entertain purely Islamic law matters in the region. Thus, Muslims in southern Nigeria are generally regulated by the civil law or by customary laws, as the Christian population is. Islamic law is therefore not as strong in southern Nigeria as it is in the north.
Thus, for the most part, laws in Nigeria comprise common law, Islamic law and customary law, creating space for legal pluralism. Apart from this, legal pluralism is also expressed through the nature of Nigeria's federal system, whereby federal and state governments share legislative powers, with states possessing even more extensive powers on certain issues, including childhood matters. This is essentially the crux of the domestication and implementation challenge regarding children's rights treaties in Nigeria. It should be added that the problem is not unconnected with religious tensions that have polarized Nigeria since its inception. In this regard, states in the north have continually resisted attempts by the central government to extend to the region the CRA, which domesticates the UN Convention on the Rights of the Child (CRC); the content of the CRA is often perceived to conflict with Islamic values and traditions, its origin being traced to western Christian states. Thus, in these states, there is generally a legal vacuum in terms of children's rights treaties. This problem is considered in more detail in the next section.
THE COMPLEXITIES OF DOMESTICATING CHILD-RELATED TREATIES IN NIGERIA
As indicated above, Nigeria subscribes to the dualist variant of treaty incorporation. However, as will be shown in this section, the process of incorporation is more complex, especially where childhood matters are involved. Since Nigeria is a state party to a number of treaties protecting children's rights, the country is internationally obliged to implement the relevant instruments. In this regard, the CRC specifically indicates that, “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention”.Footnote 13 A similar provision is also found in the African Charter on the Rights and Welfare of the Child.Footnote 14 Of particular relevance here is the obligation to implement the treaties through legislation. In this regard, it is worth noting that, before the CRA was enacted in Nigeria, a number of unsuccessful attempts were made to transform the applicable treaties legally. For instance, in 1993, a comprehensive children's rights bill was drafted and presented to the federal Parliament for approval.Footnote 15 The bill was however opposed by a number of religious and traditional groups, on the ground that it largely conflicted with Islamic and customary norms.Footnote 16 The government therefore mandated a special committee to review the bill, taking into account religious and customary laws.Footnote 17 Again, the bill failed to succeed, for similar religious and customary reasons.
However, many national and international non-governmental organizations criticized the decision to abandon the bill and urged the legislators to reconsider it again.Footnote 18 The CRA was finally enacted in 2003. In accordance with the relevant international instruments, the CRA defines a child as “a person under the age of eighteen years”.Footnote 19 In this way, the statute repealed and revised a number of existing (children's rights) laws in the country, including the Children and Young People's Act 1958 (CYPA),Footnote 20 which had defined a child as a person under the age of 14 years and a young person as an individual who had attained the age of 14 but was under the age of 17.Footnote 21 The act also repealed section 91 of the Labour Act,Footnote 22 which had defined a child as “a young person under the age of twelve years”. Apart from this, the CRA brings together in a single document the fragmented pieces of legislation on children's rights. Nonetheless, it should be noted that the CRA has been extensively challenged since its adoption in 2003, such that the statute is only applicable in 25 of Nigeria's 36 states.Footnote 23
SPECIFIC PROBLEMS CONFRONTING THE NIGERIAN CHILD RIGHTS ACT
The problem of domesticating the CRA across Nigeria emanates from a much broader issue. As already noted, Nigeria is a federation comprising 36 relatively autonomous and equal states, with each having an independent legislature. It should be pointed out that the content of the Constitution is broadly structured into three categories or areas of legislative competence. The first relates to matters within the “exclusive legislative powers” of the federal Parliament, as expressly provided for in the Constitution;Footnote 24 the second relates to matters in which both federal and state parliaments may jointly exercise legislative powers, otherwise known as “concurrent legislative powers”.Footnote 25 The third category concerns issues over which only state legislatures may exercise authority, referred to as “residual legislative powers”. States’ residual powers in this regard affect matters that are within neither the exclusive competence of the federal legislature nor the concurrent powers of both federal and state legislatures.Footnote 26 Thus, the federal Parliament is generally incompetent to legislate on matters considered to fall within states’ residual powers.Footnote 27
However, it should be noted that this only constitutes the general rule. As noted above, treaties are not self-enforcing in Nigeria. The content of section 12(2) of the Constitution demonstrates that the federal Parliament may domesticate a treaty notwithstanding that the subject matter falls outside its exclusive competence. Thus, treaty domestication exceptionally broadens the powers of the federal Parliament. However, section 12(3) stipulates further conditions to be satisfied before any such treaties may become binding within the country. This section provides that, “a bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House [sic] of Assembly in the Federation”. In other words, for a “domesticating bill” to become legally binding, it must be ratified by a majority of state legislatures.
Under the Constitution, child related matters lie outside the exclusive competence of the National Assembly.Footnote 28 The second schedule of the Constitution contains an exhaustive list of issues belonging to the exclusive as well as concurrent legislative lists.Footnote 29 For instance, subjects ranging from national defence, diplomatic relations to issues of nuclear energy, etc, are particularly indicated on the exclusive legislative list. Thus, in accordance with section 12(2) and (3) of the Constitution, the absence of children's matters from this list implies that the majority of state parliaments must give their consent before the CRC may be legally domesticated. However, given that many states were either religiously or culturally opposed to the CRC, the federal legislature failed to achieve the minimum support required for domestication. Nonetheless, the National Assembly went ahead (in contravention of the constitutional procedure) with the domestication process at the federal level, meaning that the CRA would only apply in Abuja, Nigeria's federal capital.Footnote 30
The federal Parliament's approach therefore resulted in a legal vacuum in the constituent states, in terms of children's protection from exploitative practices and children's rights in general. As of July 2018, however, 25 of Nigeria's 36 states had re-enacted the CRA, although with differing and sometimes far-reaching reservations in certain cases. In a 2010 concluding observation on Nigeria, the CRC Committee particularly noted that, “most northern states of the State party have not yet domesticated the CRA”.Footnote 31 The committee further observed that, “some states that have passed such legislation have adopted a definition of the child which is not in compliance with that of the Convention”.Footnote 32 An example of a state that has adopted a lower age is Jigawa, where the age of marriage is reduced to 13, from the 18 years standard contained in the CRA. This approach reveals other complex issues, in particular that the intent of the CRA can still be defeated by re-enacting states, so that this process only serves as a mere symbolic gesture. It is submitted that mere re-enactment should not be the ultimate goal; instead, the relevant state laws must be harmonized with the CRA provisions. To date, Nigeria continues to grapple with the complexities of domesticating the CRA across the country. It is worth emphasizing that the relevant objections are more religious and cultural in nature. This article now considers some of the specific grounds for objection.
Religious and cultural grounds for opposing the Child Rights Act
Prohibition of child marriage
In accordance with the CRC, section 21 of the CRA provides that, “no person under the age of 18 years is capable of contracting a valid marriage, and accordingly a marriage so contracted is null and void and of no effect whatsoever”. The prohibition of child marriage in the CRA challenges a deeply entrenched practice that has both religious and cultural ramifications. Indeed, it should be mentioned that, before the CRA was adopted in 2003, child marriage was recognized under the Marriage Act, provided parental consent was sought and obtained.Footnote 33 However, section 21 of the CRA, which prohibits child marriage, now supersedes the relevant section of the Marriage Act. In the predominantly Muslim north for instance, where the CRA is largely rejected, it is estimated that 48 per cent of girls are married by the age of 15, while 78 per cent are married before their 18th birthday.Footnote 34 Also, the 2008 Nigerian Demographic and Health Survey puts the median age of marriage in the north-western region at 15.2.Footnote 35 That survey also demonstrates that 46 per cent of women across Nigeria between the ages of 20 and 49 were married by the age of 18, while 58 per cent were married by the age of 20.Footnote 36 The relevant median age in the south-eastern region was put at 22.8, demonstrating that child marriage is less practised in the southern region compared to the north.Footnote 37 Thus, this prohibition in the CRA is not well-received by the northern (Muslim) states, as it challenges some of the pre-existing norms and traditions in the region.Footnote 38 Child marriage often manifests itself by way of the betrothal of female children to adult males; this is especially common among the Hausa-Fulani ethnic group.Footnote 39 In this context, apart from section 21 of the CRA, which prohibits child marriage generally, section 22(1) further stipulates that “no parent, guardian or any other person shall betroth a child to any person”. This provision is again considered as a direct attack on the local customs of the ethnic groupings in the north. To this day, the practice of betrothal remains widespread in the northern region.Footnote 40
Prohibition of marriage to members of an adoptive family
Unlike the prohibition against child marriage, which is often rejected on religious and cultural grounds, the prohibition of marriage between members of an adoptive family and adopted children is mainly opposed on religious (Islamic) grounds. In this regard, section 147 of the CRA provides that, “[a] marriage between a person who has adopted a child under this Act or a natural child of the person who adopted the child and the adopted child is hereby prohibited and any such marriage shall be null and void”. The section further provides that any such marriage is an offence that may be subject to imprisonment of up to 14 years. The content of section 147 is broadly considered, especially by the predominantly Muslim states, to conflict with Islamic norms and traditions. Felix Nzarga, for instance, argues that the relevant CRA provision contravenes the express provisions of the “Qur'an and Sunnah of the Holy Prophet on adoption of children”.Footnote 41 Chapter 33: 4–6, of the Qur'an is often cited as authority for rejecting the wider (western) notion of adoption. The chapter provides that, “nor hath He made those whom ye claim [to be your sons] your sons. This is but a saying of your mouths. But Allah sayeth the truth and he showeth the way. Proclaim their real parentage. That will be more equitable in the sight of Allah. And if ye know not their fathers then [they are] your brethren in the faith and your clients”.Footnote 42
It is worth indicating however that adoption, as more legally understood, was well practised and recognized in pre-Islamic Arab societies, whereby an adopted child was entitled to the same legal rights and privileges enjoyed by biological children.Footnote 43 During this era, the rules of affinity and consanguinity were strictly enforced, such that marriage between an adopted child and a member of the adoptive family was impossible.Footnote 44 However, this practice was reversed when the Prophet Mohammed became attracted to the wife of his adopted son, Zayd, whom he subsequently married following her divorce from Zayd, mainly to serve Prophet Mohamed's interests.Footnote 45 The principle was thus established that adoption constituted no real relationship. Consequently, this interpretation would legitimize any marriage between an adopted child and members of the adoptive family. Chapter 33: 4–5 of the Qur'an, was thus formulated, became authoritative and effectively abolished the earlier conception of adoption.Footnote 46
Thus, from a broader perspective, Oba argues that, given its divine nature, Islamic law is more definitive and regulates all Muslims.Footnote 47 He further notes that, in Islam, there is no distinction between the secular and the spiritual: “everything [including adoption] falls into the realm of religion”.Footnote 48 Following the same line of argument, Abun Nasr, notes that, “to the pious Muslim, God is the legislator and the Sharia is an expression of his ordinance …”.Footnote 49 Accordingly, with the entrenchment of Islam in much of northern Nigeria, it is inevitable that a conflict situation would arise between Islamic and official state law: the prohibition of marriage to an adopted child is thus considered a direct violation of rights under Islamic law and consequently a ground for rejecting the CRA.
Prohibition of skin marks and tattoos
This provision in the CRA is another ground for broader objection to the statute. More specifically, section 24 provides that, “[n]o person shall tattoo or make a skin mark or cause any tattoo or skin mark to be made on a child”. This section further provides that, “[a] person who tattoos or makes a skin mark on a child commits an offence under this Act and is liable on conviction to a fine not exceeding five thousand naira or imprisonment for a term not exceeding one month or to both such fine and imprisonment”.
This provision challenges some widely held practices that have extensive local ramifications, not only in northern Nigeria, but also in the south-western region of the country. In the northern region for instance, it is sometimes considered fashionable for ladies, including girls, to wear tattoos on their skin. Also, although the practice of skin (tribal) marks, which is more widespread among the Yoruba people in south-western Nigeria, generally seems to be receding, the prohibition in the CRA is nonetheless perceived as somewhat far reaching and undermining of prevailing local traditions.Footnote 50
Prohibition of child labour
Broader aversion to the CRA is also founded on the prohibition of certain aspects of child labour. In this regard, section 30(2)(a) provides that a child shall not be used “for the purpose of begging for alms, guiding beggars, prostitution …”. Section 30(2)(c) further provides that no child may be used to hawk goods or services on main city streets, brothels or highways. It should be mentioned that, across Nigeria, but also more specifically in the northern states, alms begging and the use of children as guides to visually impaired individuals is widespread. More impoverished children known as almajiris Footnote 51 may be found on streets across northern Nigeria, begging for alms.Footnote 52 It is apparent that the full implementation of the CRA in the relevant states may threaten the livelihoods of street children who have no concrete alternatives, since they mostly beg to survive.
ALTERNATIVE LEGAL MEASURES FOR ACHIEVING CHILD PROTECTION IN NIGERIA
As demonstrated above, the problems confronting the CRA have enormous implications for the broader protection of children's rights in Nigeria. Since the statute constitutes the central legislation protecting children in the country, failure to re-enact it across the federation would effectively create a legal gap in the non-enacting states. This section examines two specific national laws that touch upon child-related issues (the Labour Act and the Trafficking Act) and may serve to protect children legally in the absence of the CRA. Effort is also made to assess the compatibility of these alternative measures with existing international standards, to demonstrate their legal significance in terms of child protection. Although, as previously pointed out, the federal government has no legal competence to enact a child-focused law for the whole federation unilaterally, without the support of the constituent states, the legality and relevance of these national instruments (which address child-related issues) are discussed later in this article.
Child protection under the Labour Act
The Nigerian Labour Act,Footnote 53 although not a child specific instrument, has enormous relevance in the protection of children's rights, especially child labour. From the outset, it should be pointed out that the CRA and the Labour Act are complementary instruments: the CRA specifically makes reference to the complementarity of the Labour Act by stating that certain sections of that statute are applicable to children under the CRA.Footnote 54 It should be mentioned that, while the CRA essentially domesticates the CRC, the relevant portion of the Labour Act somewhat reflects certain aspects of the International Labour Organization (ILO) Minimum Age Convention 138 (ILO 138) as well as the ILO Worst Forms of Child Labour Convention 182 (ILO 182). Thus, section 59(1) of the Labour Act provides:
“No child shall–
(a) be employed or work in any capacity except where he is employed by a member of his family on light work of an agricultural, horticultural or domestic character approved by the Minister; or
(b) be required in any case to lift, carry or move anything so heavy as to be likely to injure his physical development”.
It is worth emphasizing here that, unlike the CRA, the Labour Act distinguishes between a child and a young person. The Labour Act defines a child as a “young person under the age of twelve years”, while a young person is defined as “a person under the age of eighteen years”.Footnote 55 Accordingly, section 59(1) recognizes the right of children (below the age of 12) to undertake light works in a family enterprise. Although ILO 138 generally prohibits light or any form of work for children below the age of 12,Footnote 56 the exception contained in article 5(3) of ILO 138 with regard to work within a family enterprise somewhat endorses the right of children (including those below the age of 12) to undertake light work, in accordance with the Labour Act. Article 5(3) of ILO 138 provides:
“The provisions of the Convention shall be applicable as a minimum to the following: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.” (emphasis added)
Of particular relevance here is the latter part, which recognizes children's economic activities within the family sector. In other words, while the general rule is that children below the age of 12 may not work, the prohibition does not apply to work within a family or small-scale holding producing for local consumption etc, indicating that younger children (below the age of 12) may work in such sectors. Thus, the Labour Act tends to reflect the content of ILO 138, as regards light agricultural work in family undertakings. It should however be mentioned that other provisions of ILO 138,Footnote 57 stipulating that engagement in light works must not prejudice school attendance etc, are not found in the Labour Act.Footnote 58 Furthermore, apart from section 59(1), which addresses work undertaken within a family enterprise, other sub-sections of section 59 also regulate the extent of child labour in the more formal sectors, including industrial works. Like article 6 of ILO 138, works undertaken in technical schools are also excluded from the scope of industrial works under the Labour Act.Footnote 59 The Labour Act also contains some additional provisions that are largely absent at the international level. For instance, children below the age of 14 are allowed to undertake waged employment, provided they return to their places of residence each night.Footnote 60 The requirement to return “home” is generally unique to the Labour Act.
Other provisions in the Labour Act also prohibit underground work, machine work and other potentially dangerous works by children below the age of 16.Footnote 61 To some extent, the prohibition of dangerous work for children below the age of 16 is consistent with article 3(3) of ILO 138, as well as article 3(d) of ILO 182 (if read together with Recommendation 190).Footnote 62 Generally, Recommendation 190 interprets the content of article 3(d) of ILO 182 to include underground work and the use of dangerous machinery etc.Footnote 63 More importantly, the recommendation also stipulates the minimum age for potentially dangerous works to be 16 years. However, it should be noted that the requirement in ILO 138 that such works may only be undertaken where “the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity”,Footnote 64 is not contained in the Labour Act.
It is also worth noting that, unlike many of the international instruments, the Labour Act stipulates in clear terms the permissible hours of work. In this regard, section 59(8) provides, “[n]o young person under the age of sixteen years shall be required to work for a longer period than four consecutive hours or permitted to work for more than eight working hours in any one day: Provided that, save as may be otherwise provided by any regulations made under section 65 of this Act, this subsection shall not apply to a young person employed in domestic service”.
This provision in some ways implements the content of article 32(2)(b) of the CRC, which obliges states parties to “provide for appropriate regulation of the hours and conditions of employment”. It should also be mentioned that the Labour Act equally regulates other categories of works including night workFootnote 65 and employment in a vessel,Footnote 66 and also imposes an obligation on employers to keep registers that document the ages, date of employment, conditions as well as nature of employment of all “young persons”.Footnote 67 The registers must be produced for inspection when required by authorized state officers. This is mainly to ensure strict adherence to relevant statutory regulations. In summary, the Labour Act, although more generic in scope, contains some specific provisions that implement the contents of international child labour instruments.
Child protection under the Trafficking Act
The Nigerian legislature recently enacted the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 (Trafficking Act), which repeals the country's 2005 anti-trafficking legislation.Footnote 68 The new legislation was adopted to reflect more recent developments in trafficking, especially those that were not addressed in the repealed statute. Generally speaking, the Trafficking Act, 2015, targets a wide range of exploitative practices, especially those commonly referred to as unconditional worst forms of child labour under ILO 182. Section 82 of the Trafficking Act defines a child as “a person under the age of 18 years”. This definition accords with the CRA and other international legal standards; as such, the distinctions between a child and a young person found in the Labour Act are not made. In more specific terms, section 16 of the Trafficking Act provides:
“(1) Any person who procures or recruits any person under the age of 18 years to be subjected to prostitution or other forms of sexual exploitation with himself, any person or persons, either in Nigeria or anywhere else, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than ₦1,000,000.00.
(2) Any person who procures or recruits any person under the age of 18 years to be conveyed from his usual place of abode, knowing or having reasons to know that such a person may be subjected or induced into prostitution or other forms of sexual exploitation in any place outside Nigeria, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than ₦1,000,000.00.”
Generally, this provision reflects the wider international consensus on the prohibition of child sexual exploitation.Footnote 69 The provision is particularly relevant in the context of children's rights as it addresses the trafficking of individuals below the age of 18. Also, at the more domestic level, the provision gives stronger expression to the prohibition of trafficking and other forms of sexual exploitation contained in the CRA.Footnote 70 More specifically, under section 16 of the Trafficking Act, child trafficking offences are expressly criminalized and may be punished with a prison term of not less than seven years and a fine not less than ₦1,000,000 (about EUR3,000). It is also worth emphasizing that section 16(2) targets the recruitment of children to be used as prostitutes outside Nigeria. This prohibition is highly relevant, especially since Nigeria is one of the highest source countries for trafficked girls/women in Europe, which is the main destination region. In this regard, CS Baarda notes that, “the number of Nigerian victims of human trafficking for sexual exploitation is among the highest of any ethnicity in Western Europe”.Footnote 71 This practice often generates a continuous source of profit for traffickers, since victims constitute a flexible and largely inexpensive source of “labour”.Footnote 72 Usually, victims can be exploited for a prolonged period of time, to offset the transit cost and also for profit motives. Paolo Campana observes that Nigerians as well as other victims are typically requested to pay the traffickers between USD40,000 and 70,000, which translates into “victims being held captive for a minimum of one year to (often) three years or more”.Footnote 73 Thus, if well implemented, the Trafficking Act may deter potential traffickers.
In terms of the extradition of trafficking offenders, it should be pointed out that there is no need for a special extradition treaty between Nigeria and the destination country, as the Optional Protocol to the CRC (Optional Protocol)Footnote 74 may generally serve as a basis for any such extradition.Footnote 75 Accordingly, since many destination countries are states parties to the Optional Protocol, the Nigerian government may request the extradition of foreign based traffickers and, if successful, prosecute them effectively in line with the Trafficking Act. In this regard, article 5(2) of the Optional Protocol provides that, “[i]f a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider the present Protocol to be a legal basis for extradition in respect of such offences. Extradition shall be subject to the conditions provided by the law of the requested State”. Prosecution of extradited offenders in Nigeria is facilitated by section 16(2) that mainly targets offences with transnational elements. It should be noted that the approach of section 16(2) in this regard is generally in consonance with article 3(1) of the Optional Protocol, which obliges states parties to take legislative action to criminalize offences described in the instrument, whether committed domestically or internationally.
Section 17 of the Trafficking Act also prohibits sexual exploitation, especially recruitment for pornography or pornographic performances. In this regard, section 17(1)(a) and (b) explicitly prohibits the use of children for pornographic purposes or the harbouring of children in brothels. Offences of this nature are liable on conviction to at least seven years imprisonment and a fine of not less than ₦1,000,000. Apart from this, section 17(2) stipulates additional punishment where victims are rendered unconscious through the use of drug substances. In such cases, traffickers may be sentenced to an additional one year's imprisonment. Thus, sex trafficking offences committed with the use of drug substances may be liable to imprisonment of at least eight years. The rationale for this additional punishment is probably because the administration of abusive substances may remove the exercise of good judgment and consent by victims.
Section 18 of the Trafficking Act also stipulates that “any person, who organizes, facilitates or promotes foreign travels which promote prostitution or other forms of exploitation of any person or encourages such activity, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than ₦1,000,000.00”. It should be pointed out that, although this provision seems to restate the content of section 16(2) noted above with regard to transnational sex trafficking, some distinct differences may be seen between the two provisions. For instance, while section 16(2) is more child-specific in scope, section 18 generally applies to both children and adults alike. As may be seen, section 18 utilizes the phrase “exploitation of any person”, suggesting that it targets not only children, but also adults. Beyond this however, the prohibition in both sections implicitly acknowledges the prevalence of transnational sex trafficking, with Nigeria as a source country. Thus, the effective implementation of these provisions may well eliminate, or at least reduce, this highly exploitative practice.
Another important provision in the Trafficking Act is section 23, which regulates the employment of child domestic workers. This provision is particularly relevant, as the use of children as domestic workers is widespread across Nigeria. It should first be indicated that section 23(1)(a) does not consider all employments to be exploitative; only employment involving children below the age of 12 is considered an offence and therefore exploitative. Accordingly, as a general rule, children above the age of 12 may work as domestic workers under the Trafficking Act. However, elements of exploitation or harm must not be present, as indicated in section 23(1)(b). Generally, the recognition of domestic work for children aged 12 and above tends to engage realistically with the widespread phenomenon in Nigeria,Footnote 76 as opposed to a rather blanket prohibition that would deny existing realities and may be rather difficult to implement. This approach largely accords with relevant international standards, especially ILO 138,Footnote 77 which recognizes the right of children as young as 12 to undertake light work. Although no reference to light work is made in section 23(1), it is to be expected that children are not subjected to conditions that are otherwise harsh. Also, the ILO Domestic Workers Convention 189 (ILO 189) tends to support the thinking that children below the age of 18 may work as domestic staff. In this regard, article 4(1) of ILO 189 provides that, “[e]ach Member shall set a minimum age for domestic workers consistent with the provisions of the Minimum Age Convention, 1973 (No 138), and the Worst Forms of Child Labour Convention, 1999 (No 182), and not lower than that established by national laws and regulations for workers generally”. Furthermore, article 4(2) stipulates that, “[e]ach Member shall take measures to ensure that work performed by domestic workers who are under the age of 18 and above the minimum age of employment does not deprive them of compulsory education, or interfere with opportunities to participate in further education or vocational training”. It is however worth noting that, as of July 2018, Nigeria had yet to ratify ILO 189. Despite the failure to ratify, it can be inferred (especially from ILO 189) that relevant international standards are not completely opposed to domestic work by children (ie, below the age of 18). Thus, the recognition of such work from age 12 and above in the Trafficking Act may be legally valid.Footnote 78
In general, it should be stated that, since section 23 of the Trafficking Act addresses a rather obscure sector where child exploitation may easily escape government scrutiny, concrete measures must be taken if this provision is to be meaningfully translated. Beyond the regulation of child domestic work, it should also be mentioned that the Trafficking Act further prohibits all forms of slave dealings, with stiffer punishment.Footnote 79 Therefore, in summary, the Trafficking Act addresses a range of exploitative practices and has an added value in achieving effective child protection regimes.
THE LEGALITY OF THE LABOUR ACT AND TRAFFICKING ACT IN PROTECTING CHILDREN IN NIGERIA
As indicated above, the National Assembly (the federal Parliament) lacks exclusive competence to enact purely child-centred laws or to domesticate a treaty with children's rights content without securing the overwhelming support of states across the federation. However, contrary to the constitutional requirements (ie, the need to involve the constituent states in the enactment process), the federal Parliament unilaterally enacted the CRA and expected relevant state assemblies to follow suit. To date, the statute has failed to gain widespread acceptance across Nigeria. It should be reemphasized that relevant objections to the CRA are largely accommodated because child-related issues are not included in the exclusive legislative list, over which the National Assembly may exercise full legislative rights. If such issues were included in the exclusive or concurrent legislative lists, the need to re-enact the CRA in the constituent states would not have arisen, as the statute would have applied nationally,Footnote 80 even though dissenting views may still be voiced. In line with the current constitutional framework, however, the relevant states may legally exercise the right not to re-enact the CRA. It is worth noting, however, that the CRA is not rejected simply because the federal legislature acted beyond its constitutional powers, by enacting it without securing the overwhelming support of states. Instead, the main grounds of objection are those already highlighted above.
The failure to re-enact the CRA may however have negative effects on children in the relevant states. Accordingly, this section aims to address a number of issues, including: the legal status of the Labour Act and the Trafficking Act in Nigeria (ie, whether they apply nationally or are limited in scope and must be re-enacted in states); whether the federal legislature is acting beyond its constitutional powers by legislating on child-related matters; and whether these statutes play gap-filling roles in the absence of a more overarching instrument (ie, the CRA).
The legal status of the Labour and Trafficking Acts in Nigeria
The Constitution is the central legislation that clarifies law-making competences in Nigeria. The Constitution indicates the “what” (issues) and “who” (relevant Parliament, whether federal or state) is competent to legislate on specific matters. As pointed out above, the Constitution generally excludes child-related issues from the exclusive legislative competence of the National Assembly, indicating that state legislatures are the primary law makers in their respective jurisdictions. However, given that the constituent states have no powers to sign or ratify a treaty, even when the subject matter is child-related, the federal government, by virtue of its international standing, is expected to ratify treaties, but must also involve the states in the domestication process.Footnote 81 This demonstrates that, under the Constitution, powers to make child-related laws are mainly devolved to the states.Footnote 82
Unlike child-centred issues, however, the Constitution explicitly grants the federal legislature powers to enact labour-related statutes. In this regard, the second schedule to the Constitution clearly includes “labour” in the exclusive legislative list. This confers wide legislative powers on the National Assembly to make labour-related laws for every part of the federation. It should however be pointed out that the Constitution makes no distinction between child work and labour in general (ie, adult labour); the second schedule merely describes the National Assembly's powers to cover “labour, including trade unions, industrial relations; conditions, safety and welfare of labour; industrial disputes; prescribing a national minimum wage for the Federation or any part thereof; and industrial arbitration”.Footnote 83 Thus, the Labour Act is a statute of the federal Parliament and applies nationally. As a result, questions of state re-enactment do not arise. Also, as regards the Trafficking Act, although the exclusive legislative list makes no express mention of “trafficking”, the statute was enacted by the National Assembly and also applies nationally.Footnote 84
However, the more pertinent question is whether the federal legislature may legally enact child-related laws (in the Labour and Trafficking Acts) for the whole federation. In general, it must be acknowledged that the subject matter of each statute overlaps somewhat, in that it cuts across issues related to both children and adults, such that a neat separation of legislative powers between federal and state legislatures may be difficult to accomplish. With regard to the Labour Act for instance, it may be argued that powers to make labour laws for adults would implicitly include powers to determine the age of entry into the work force. Thus, if the federal legislature adopts age 16 as the relevant admission age for employment, this clearly touches upon questions of childhood and will automatically drag Parliament into child labour issues. The same argument also goes for the Trafficking Act: purely adult-centric legislation may be difficult to formulate. As already demonstrated, however, beyond the areas of intersection (ie, provisions that apply to both children and adults alike), the Labour and Trafficking Acts also contain some more specific regulation of children's work, as well as prohibition of child trafficking, which may validly raise the question of legislative competence. So far, states have however been silent and no objection has been raised on the issue of legality. This generally reveals that states, especially those yet to re-enact the CRA, are not particularly opposed to child labour or child trafficking regulation; instead their objections to the CRA are inspired by other factors.Footnote 85 It is worth noting that, even though some northern states are reluctant to accept the prohibition against child begging in the CRA, this is not their primary reason for rejecting the statute. Nonetheless, it may be argued that the exclusion of child begging from the scope of prohibition in the Labour and Trafficking Acts also contributed to their wide acceptance across Nigeria, especially in the north. Overall, it must still be acknowledged that the inclusion of child-related provisions in these federal laws can be legally challenged in the courts (even though any such suit is yet to be instituted), as they fall outside the exclusive law making powers of the federal Parliament.
Relevance of the Labour and Trafficking Acts in the protection of children's rights
As indicated above, some 11 of Nigeria's 36 states are yet to re-enact the CRA. Failure to re-enact this statute should ordinarily create a complete legal vacuum and consequently a margin for exploitation in the states. However, the nationwide application of the Labour and Trafficking Acts suggests that legislation provides some protection for children. These statutes are highly relevant and may usefully address some important themes, especially regarding child labour and child trafficking. Thus, even though these issues represent only one aspect of the broader children's rights framework, their effective implementation may offer considerable protection to children. In a sense therefore, the Labour and Trafficking Acts are essential gap-fillers in the absence of more overarching legislation (ie, the CRA).
Despite their relevance, however, it is important to state that these avenues (ie, protection through the Labour and Trafficking Acts) are generally narrow and limited; they only address one aspect of the range of exploitation that children experience. The legislation lacks the comprehensive force that child protection demands. Apart from this, it is a well-established legal principle that human rights obligations include both positive and negative duties. To a large extent, however, the Labour and Trafficking Acts tend to focus mainly on negative obligations, thus ignoring the more positive ones. The alternative measures do not address questions of rights that must be accorded to children. Thus, there is need for more comprehensive legislation that recognizes the rights of children, including the rights to freedom from discrimination, dignity, education and freedom of movement. Generally, in the absence of more comprehensive provisions in the Labour and Trafficking Acts, as well as failure to re-enact the CRA, it should be noted that the fundamental rights contained in the Constitution may still be invoked to protect children, even though these are not child-specific provisions. In this regard, chapter IV of the Constitution contains a range of rights, including the rights to life, freedom from discrimination and dignity of human persons. However, some provisions, such as the right to education, are not contained in chapter IV. Instead, education is classified as one of the fundamental objectives and directive principles of state policy (in chapter II), which are non-justiciable rights. This reemphasizes the need for the CRA to be adopted nationally, as many of the relevant rights are legally guaranteed in the statute. Thus, the alternative measures considered in this article may not sufficiently address other important aspects of children's rights discourse.
It is therefore recommended that the CRA be re-enacted nationally, as it contains a broader range of protection. It serves little purpose for protection from child labour or trafficking to be guaranteed while exploitation is experienced in other areas. The indivisibility of rights must also be emphasized. Thus, it is recommended that the Constitution be amended to prioritize child-related issues by including them in the concurrent legislative list.Footnote 86 This may be a rather tedious but worthwhile process,Footnote 87 as including such issues in the concurrent, rather than the exclusive, list would allow both states and the national government to exercise legislative powers on child-related matters jointly.Footnote 88 With regard to matters on the concurrent list, even though the national and state assemblies have joint legislative powers, states may not adopt laws that conflict with the federal law.Footnote 89 This is generally consistent with the constitutional doctrine of “covering the field”, which was reaffirmed by the Nigerian Supreme Court in Fawehinmi v Babangida.Footnote 90 Thus, states would be legally obliged to adopt laws that conform with the national standard, as opposed to the current practice where inconsistent standards are adopted in some states. At the moment, however, this principle cannot be invoked, as the National Assembly is not legally empowered to legislate on childhood matters for the whole of the federation. Amending the Constitution in the manner suggested in this article would have the power to rectify the current defects.
CONCLUSION
This article has presented the challenges of effectively domesticating children's rights treaties in Nigeria. It has demonstrated that, although Nigeria subscribes to the dualist variant of treaty incorporation, mere enactment by the federal Parliament may not necessarily translate into nationwide applicability. In this regard, it was revealed that the CRA, which mainly domesticates the CRC, has been fraught with many challenges. The constitutional requirement that states must be involved in the domestication of certain treaties implies that state assemblies must participate in the domestication of child-related instruments, as issues of this nature are not included in the exclusive legislative list. However, Nigeria's pluralistic nature would make state consent difficult to achieve. Thus, although the CRA was passed in 2003, 15 years later the statute is yet to gain widespread acceptance across Nigeria. Some states have found fault with the statute based on some of its content, including the prohibitions against child marriage, marriage to members of an adoptive family, skin marks and tattoos, and certain aspects of child labour. These issues are thought to conflict with prevailing socio-religious values in the relevant states. While this should potentially create a complete legal gap, especially in the non-enacting states, it was however found that certain national instruments (the Labour and the Trafficking Acts) may fulfil some gap-filling roles, especially in areas of child labour and child trafficking. However, for greater effectiveness, and to ensure better protection for the growing number of children, it was recommended that child-related issues be included in the concurrent legislative list, as opposed to the current practice where states enjoy a stronger mandate on child issues. By including the matter in the concurrent list, both the federal and state legislative bodies would exercise joint legislative powers, although, in accordance with the constitutional provision,Footnote 91 state laws must always be consistent with the federal enactment. This way, the CRA can be legally enforceable throughout the federation.
